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In Ajit Singh the Court said the balance must be maintained in such a manner that there was no reverse discrimination against the general candidates and that any rule, circular or order which gave seniority to the reserved candidates promoted at roster point, would be violative of Articles 14 and 16(1) of the Constitution of India. The Indian Railways following the law laid down in Virpal issued a circular on 28.2.97 to the effect that the reserved candidates promoted at roster points could not claim seniority over the senior general candidates promoted later. The State of Punjab after following Ajit Singh was proceeding to revise seniority lists and make further promotions of the senior general candidates who had reached the level to which the reserved candidates had reached earlier. At that point of time, another three Judge Bench came to decide a case from the State of Haryana in Jagdish Lal vs. State of Haryana [1997 (6) SCC 538] and took a view contrary to Virpal and Ajit Singh. It held that the general rule in the Service Rules relating to seniority from the date of continuous officiation which was applicable to candidates promoted under the normal seniority/selection procedure would be attracted even to the roster point promotees as otherwise there would be discrimination against the reserved candidates. The Bench also observed that the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights and in that behalf, it followed Ashok Kumar Gupta vs. State of U.P. [1997 (5) SCC 201] where a similar principle had been laid down. The Contentions in brief: Sri Hardev Singh, learned senior counsel for the State of Punjab submitted that since Jagdish Lal decided something contrary to Virpal and Ajit Singh the State was in a `quandary what to do. In these IAs and the connected batch of cases which have been listed together and heard, contentions have been raised by Sri Rajeev Dhawan for the State of Haryana and Sri Altaf Ahmad, Additional Solicitor General of India for the State of Rajasthan and the Union of India. According to the learned counsel the 'roster point promotees', ( i.e. a reserved candidate at Level 1 who is promoted to Level 2 at the roster point meant for such promotion) namely, the reserved candidates cannot claim seniority on the basis of continuous officiation. However, learned Additional Solicitor General, Sri C.S. Vaidyanathan for the Indian Railways has taken a contrary stand-, in spite of the fact that Railways has already accepted Virpal and issued a circular on 28.2.1997 -that roster point promotions in the Railways did not confer seniority. Senior counsel Sri Harish Salve and others for the general candidates contended that Virpal and Ajit Singh were correctly decided and Jagdish Lal was wrongly decided. Senior counsel Sri K. Parasaran, Sri D.D. Thakur, Sri M.N. Rao, and others including Sri Jose P. Verghese for the reserved candidates relied upon Jagdish Lal and they contended that Virpal and Ajit Singh were wrongly decided. The validity of the 'catch-up' rule accepted in Virpal and Ajit Singh in favour of general candidates was also put in issue. One additional point was also argued. This related to the "prospectivity" of R.K.Sabharwal and Ajit Singh. In R.K.Sabharwal this Court has held that once the roster point promotions were all made in respect of the reserved candidates, the roster ceased to operate. Unless any of the reserved candidates already promoted had retired or been further promoted etc. and unless there was a vacancy generated at the points already filled, fresh candidates from the reserved candidates could not be promoted by further operation of the roster. Having so held, the Court said that the judgment would be "prospective". The reserved candidates now contend that the above direction means that not only the reserved candidates so promoted in excess of the roster points could not be reverted but that their seniority against such excess promotions was also protected vide Sabharwal.

I.......T.......T.......T.......T.......T.......T.......T..J Constitution is not static: We shall at the outset deal with the contention raised by Sri D.D.Thakur, learned senior counsel appearing for the reserved candidates that Article 16(4) must be interpreted keeping in mind the conditions prevailing fifty years ago when the Constitution was drafted and when Article 16(4) was incorporated in the Constitution. Learned counsel submitted that the founding fathers were conscious that a special provision for reservation was necessary to see that the backward classes of citizens were adequately represented in the services. Hence an interpretation which would advance the said objective must be applied. Reliance was also placed on the Statement of Objects and Reasons in connection with the incorporation of Article 16(4A). In fact, all the learned counsel appearing for the reserved candidates contended that the said officers could not be treated as equals to the general candidates and that their backwardness and past social oppression must be borne in mind. Nobody can deny that the above approach is the proper one while dealing with the reserved classes. The primary purpose of Article 16(4) and Article 16(4A) is due representation of certain classes in certain posts. However, we must bear in mind and not ignore that there are other provisions, namely, Articles 14, 16(1) and Article 335 of the Constitution which are also very important. The Constitution has laid down in Articles 14 and 16(1) the permissible limits of affirmative action by way of reservation under Articles 16(4) and 16(4A). While permitting reservations at the same time, it has also placed certain limitations by way of Articles 14 and 16(1) so that there is no reverse discrimination. It has also incorporated Article 335 so that the efficiency of administration is not jeopardized. While interpreting provisions of the Constitution and in particular fundamental rights of citizens, it is well to bear in mind certain fundamental concepts. In McCulloch Vs. Maryland ( 1819) 4 Wheel (17 U.S.316), Chief Justice Marshall cautioned that we must keep in mind that it is the Constitution that we are expounding. He said that the Constitution was intended to endure for ages to come and had consequently to be adapted to the various crises of human affairs from time to time. Brandeis J wrote : "Our Constitution is not a straight jacket. It is a living organism. As such it is capable of growth, of expansion and of adaptation to new conditions. Growth implies changes, political, economic and social. Growth which is significant manifests itself rather in intellectual and moral conceptions of material things" (Brandeis Papers, Harvard Law School). Similarly, in a beautiful metaphor Mr. J.M. Beck said as follows:

(Shelly Vs. Kraemer) 334 U.S.(1948) "

The same learned Judge, Justice Sandra Day O'Connor, stated again recently in Adarand Constructors Inc Vs. Pena ( 1995) 515 U.S.200, that in such matters relating to affirmative action, the Court would launch an inquiry to ensure that the "personal right to equal protection of the laws has not been infringed."

Thus this Court has to ensure that, in matters relating to affirmative action by the State, the rights under Articles 14 and 16 of the individual to equality of opportunity, are not affected. A reasonable balance has to be struck so that the affirmative action does not lead to reverse discrimination. We shall here refer to the speech of Dr. Ambedkar in the Constituent Assembly:

102) that reservations cannot lead to an `overkill'. At page 301, His Lordship said: "The remedy of 'reservations' to correct inherited imbalances must not be an overkill".

In other words, affirmative action stops where reverse discrimination begins. (i) Efficiency of administration and Article 335: It is necessary to see that the rule of adequate representation in Article 16(4) for the Backward Classes and the rule of adequate representation in promotion for Scheduled Castes and Scheduled Tribes under Article 16(4A) do not adversely affect the efficiency in administration. In fact, Article 335 takes care to make this an express constitutional limitation upon the discretion vested in the State while making provision for adequate representation for the Scheduled Castes/Tribes. Thus, in the matter of due representation in service for Backward Classes and Schedule Castes and Tribes, maintenance of efficiency of administration is of paramount importance. As pointed in Indira Sawhney, the provisions of the Constitution must be interpreted in such a manner that a sense of competition is cultivated among all service personnel, including the reserved categories. (ii) Reservation and effect of the Roster Point reservation: It must be noted that whenever a reserved candidate goes for recruitment at the initial level (say Level 1), he is not going through the normal process of selection which is applied to a general candidate but gets appointment to a post reserved for his group. That is what is meant by `reservation'. That is the effect of `reservation'. Now in a case where the reserved candidate has not opted to contest on his merit but has opted for the reserved post, if a roster is set at Level 1 for promotion of the reserved candidate at various roster points to level 2, the reserved candidate if he is otherwise at the end of the merit list, goes to Level 2 without competing with general candidates and he goes up by a large number of places. In a roster with 100 places, if the roster points are 8, 16, 24 etc. at each of these points the reserved candidate if he is at the end of the merit list, gets promotion to Level 2 by side-stepping several general candidates. That is the effect of the roster point promotion. It deserves to be noticed that the roster points fixed at Level 1 are not intended to determine any seniority at Level 1 between general candidates and the reserved candidates. This aspect we shall consider again when we come to Mervyn Continho vs. Collector of Customs [1966 (3) SCR 600] lower down. The roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Once such vacancies are all filled, the roster has worked itself out. Thereafter other reserved candidates can be promoted only when a vacancy at the reserved points already filled arises. That was what was decided in R.K.Sabharwal vs. State of Punjab. (iii) Seniority of roster promotees: Question is whether roster point promotions from Level 1 to Level 2 to reserved candidates will also give seniority at Level 2? This is the crucial question. We shall here refer to two lines of argument on behalf of the reserved candidates. Ajit Singh was an appeal from the judgment of the Full Bench of the Punjab & Haryana High Court in Jaswant Singh Vs. Secretary to Govt. Punjab Education Department, 1989 (4) S.L.R. 257. In that case, reliance was placed by the reserved candidates on a general Circular dated 19.7.69 issued by the Punjab Government which stated that the roster point promotions would also confer seniority. In fact, while dismissing the Writ petitions filed by the general candidates the High Court declared that the State was obliged to count seniority of the reserved candidates from the date of their promotion as per the Circular dated 19.7.69. The judgment of the Full Bench was reversed by this Court in Ajit Singh in the appeal filed by the general candidates. That resulted in the setting aside of the above declaration regarding seniority of roster point promotees as stated in the Punjab circular dated 19.7.69.. But before us, reliance was placed by the reserved candidates as was done in Jagdish Lal, upon the general seniority Rule contained in various Punjab Service Rules applicable in the Civil Secretariat, Education, Financial Commissioner, etc. Departments which Rules generally deal with method of recruitment, probation, seniority and other service conditions. All these Rules provide a single scheme for recruitment by promotion on the basis of seniority- cum-merit and then for seniority to be determined in the promotional post from the date of "continuous officiation", whenever the promotion is as per the method prescribed in those Rules. It is on this seniority rule relating to `continuous officiation' at the promotional level that reliance was placed before us by the reserved candidates, as was done in Jagdish Lal. Question is whether roster points promotees can rely on such a seniority rule?