Holding

Roster‑point promotees cannot claim seniority over senior general candidates; the rulings in Virpal Singh and Ajit Singh are affirmed and Jagdish Lal is set aside.

Summary

The Supreme Court considered three interlocutory applications filed by the State of Punjab seeking clarification of its earlier judgments in Ajit Singh (1996) and Virpal Singh (1993) regarding seniority of reserved‑category officers promoted at roster points. The Court held that such roster‑point promotees cannot claim seniority over general‑category officers who were senior in the lower grade and later promoted, and that the seniority rule based on continuous officiation applies only to promotions made under the equal‑opportunity scheme, not to roster promotions. It affirmed that the principles laid down in Virpal Singh and Ajit Singh are correct and that the contrary view in Jagdish Lal (1997) is erroneous. The Court also reiterated the ‘catch‑up’ rule whereby a senior general candidate who reaches the promotional level before the reserved candidate must be treated as senior at that level, and seniority at higher levels must be re‑fixed accordingly. Finally, the Court declared the interlocutory applications disposed of, confirming the prospective operation of Sabharwal and Ajit Singh and rejecting any retroactive grant of seniority to excess roster promotions.

Issues considered

The extent to which roster‑point promotees (reserved category) may count seniority from the date of continuous officiation in the promoted post vis‑à‑vis senior general candidates.
Whether the decisions in Virpal Singh and Ajit Singh are correct and the decision in Jagdish Lal should be overruled.
The validity and scope of the ‘catch‑up’ principle for seniority adjustments between reserved and general candidates.
The prospective operation of the Sabharwal and Ajit Singh judgments concerning promotions made before the decisions.

Legislation cited

Constitution of Indias. Article 14, s. Article 16(1), s. Article 16(4), s. Article 16(4A)

Subjects

reservationpromotionseniorityroster pointArticle 14Article 16(1)Article 16(4)Article 16(4A)affirmative actioncatch‑up ruleprospective operationservice law

Judgment

AJIT SINGH AND ORS. A
v.
THE STATE OF PUNJAB AND ORS.

SEPTEMBER 16, 1999

[DR. A.S. ANAND, C.J., K. VENKATASWAMI, G.B. PATTANAIK B
.. S.P. KURDUKAR AND M. JAGANNADHA RAO, JJ.]

Service Law :

Reservation in Promotion-Roster point promotees vis-a-vis-general C
candidates-Seniority-Determination of-Relevant statutory Rules providing
single scheme of promotion and seniority based on seniority-cum-merit from
the date of continuous officiation-Roster point promotees not promoted on
the basis ofseniority-cum-merit-Claim for seniority on the basis ofcontinuous
officiation-Validity of-Held, roster point promotees cannot count their
seniority over general candidate from the date of their continuous officiation D
in the promotional posts-Senior general candidates at lower level reaching
the promotional level later will have to be treated as senior to reserved
category candidates-Seniority of reserved category candidates promoted to
higher level ignoring the general category candidates has to be refixed-
However, if the reserved category candidates are otherwise eligible and posts E
are available for promotion, cannot be denied right to be considered for
promotion merely because senior general candidates at initial level have not
reached the promotional level-Constitution of India, 1950-Articles
14, 16(1), 16(4) and l 6(4A)-Punjab Secretariat Class Ill Service Rules,
1956.
F
Constitution of India, 1950:

Articles 16(1), 16(4) and l 6(4A)-Reservation in promotion-Right to
· be considered-Whether "Fundamental" or "Statutory"-Held, Articles 16(4)
and 16(4A) do not confer any fundamental right and are only enabling
provisions-They confer only a discretion but do not confer any duty or G
obligation.

Articles 16(4) and 16(4A) and 16(1) r!w 14-Reservation in
promotion-Roster point promotees vis-a-vis-general candidates-Balancing
of fundamental rights and rights of reserved candidate-Held, a reasonable H
521
522 SUPREME COURT REPORTS [1999] SUPP. 4 s.c:R ..

A balance has to be struck between the individual rights guaranteed under
Article 16(1) and affirmative action under Articles 16(4) and 16(4A) so that'
there is no reverse discrimination against general candidates.

Articles 16(4), 16(4A) and 33 5-Reservation in promotion-
Maintenance of efficiency in administration-Necessity of
B
Reservation in promotion-Promotions made in excess of roster point-
E.ffect of-Held, promotions made in excess of any quota are to be treated as
adhoc-No seniority can be claimed from wrong application of the roster.

Judgment-Prospectivity-Supreme Court's decision in Sabharvval and
C Ajit Singh case-Prospective operation-Purpose and effect of

Respondent-State had filed the present Interlocutory Applications for
'clarification' of the Judgment of this Court in Ajit Singh 's case. In Ajit
Singh's case, a three Judge Bench of this Court observed that reserved
candidates promoted at roster points cannot be treated as senior to senior
D general candidates promoted subsequently. Similarly, earlier in Virpal Singh 's
case, a two Judge Bench of this Court held that reserved candidates promoted
at roster points cannot claim seniority at promotional level against a senior
general candidate promoted at later stage to the same level. However,
subsequently in Jagdish Lal's case, a three Judge Bench of this Court held
E 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 also be attracted to roster
point promotees as otherwise there would be discrimination against reserved
candidates; the right to promotion was a statutory right while the rights of
the reserved candidates under Articles 16(4) and 16(4A) were fundamental
F rights. Thus, the decision of this court in favour of general candidates
(Virpal Singh 's case and Ajit Singh 's case) were reversed by the subsequent
judgment of this Court (Jagdish Lat's case). Hence, the present Interlocutory
Applications for clarification.

G Disposing of the applications, the Court

HELD : 1.1. The roster point promotees (reserved category) cannot
count their seniority in the promoted category from the date of their
continuous officiation in the promoted post, vis-a-vis the general candidates
who were senior to them in the lower category and who were later promoted.
H On the other hand, the senior general candidate at the lower level, if he
AJIT SINGH v. STATE 523
reaches the promotional level later but before the further promotion of the A
reserved candidate he will have to be treated as senior, at the promotional
level, to the reserved candidate even if tile reserved candidate was earlier
promoted to that level. [555-F-G]

Ajit Singh Januja v. State of Punjab, [1996) 2 SCC 215 and Union of
India v. Virpa.l Singh, [1993) 6 sec 685, affirmed. B
1.2. Seniority rule relating to 'continuous officiation' in promotion is
part of the general scheme of recruitment - by direct recruitment, promotion,
etc.-in each of the services in class I, II and III and is based upon a principle
of equal opportunity for promotion. It is only to such promotion that the C
seniority rule of 'continuous officiation' is attracted. It is not permissible to
de\ink the seniority Rule from the recruitment Rule based on equal opportunity
and apply it to promotion made on the basis of the roster which promotion
are made outside the equal opportunity principle. [544-B]

Mohd Bhakar v. Y. Krishna Reddy, (1967) SLR 753 (SC); K. Jagadeesan D
v. Union of India, [1990) 2 SCC 228; Syad Khalid Rizvi v. Union of India,
[1993) Suppl. 3 SCC 575 and Akhil Bharatiya Soshit Karamcahari Sangh
v. Union of India, [1996)6 SCC 65, referred to.

Jagdish Lal v. State ofHaryana, [1997] 6 SCC 538 and Kai/ash Chand
Joshi v. Rajasthan High Court, [1996)1 SCALE 752, overruled. ·E

State of Maharashtra v. Chandrakant Kulkarni, [1981) 4 SCC 130;
Mohd. Shujat Ali v. Union of India, [1975] 3 SCC 76 and A.K. Bhatnagar
v. Union of India [1991] 1 SCC 544, held inapplicable.

Karam Chandv. Haryana State Electricity Board, [1989) Suppl. 1 SCC F
342 and General Manager, Southern Railway v. Rangachari, [1962] 2 SCR
586, distinguished.

1.3. In Ajit Singh 's case there were set of Rules for Class I, II and III
services. The Punjab Secretariat Class III Service Rules, 1976 deal with the G
posts of clerk (Level 1), Assistant (Level 2) and Superintendent (Gl"ade II)
(Level 3). At each of these two levels 1 and 2, there is a roster which
implements reservation. For promotion from level 1 to 2 and from Level 2
to level 3, the employees are respectively governed by Rule 7 for promotion
and by Rule 9 for seniority. It is provided in proviso (iii) to Rule 7(1) that
all promotions shall be made by selection on the basis of Seniority-cum-merit H
524 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A and no person shall have a right of promotion on the basis of seniority alone.
Rule 9 speaks of seniority from the date of continuous officiation. The
promotion rule in Rule 7(1) proviso (iii) and the seniority Rule in Rule 9
under the 1976 Rules for Class m form a single scheme and are interlinked.
Thus, the general candidates who are senior at Assistants' level (Level 2)
and who have reached Superintendent Grade--0 (Level 3) before the reserved
B candidate moved to Level 4 (Supdt. Grade--1), will have to be treated as senior
.,,
at the Level 3 also (Supdt. Grade-II) and it is on that basis that promotion
to the post of Level 4 must be made, upon first considering the cases of the
senior general candidates at Level 3. If the cases of the senior general
candidates who have reached Level 3 though at a latter point of time, are not
C first considered for promotion to Level 4, and if the roste~ point promotee
at Level 3 is treated senior and promoted to Level 4, there will be violation
of Articles 14 and 16(1) of the Constitution of India. Thus, in cases where
the reserved candidate bas reached to Level 4 ignoring the seniority of the
senior general candidate at Level 3, seniority at Level 4 has to be refixed
(when the junior general candidate is promoted to Level 4) on the basis of
D when the time of reserved candidate for promotion to Level 4 would have
come if the case of the senior general candidates was considered at Leval
3 in due time. However, the contention of general candidates that at Level 3,
the roster candidate must wait at Level 3 before being promoted to Level 4--
till the last senior general candidate at Level 1 reaches Level 3 canriot be
E accepted as that will not amount to a reasonable balancing of the rights of
the candidates in the two groups. If reserved category candidate is otherwise
eligible and posts are available for promotion to Level 4, they cannot be
denied right to be considered for promotion to Level 4, merely because
erstwhile seniors at the entry levels have not reached Level 3. That, is the
correct approach for balancing the fundamental rights under Articles 14
F and Article 16(1) on the one hand and the provisions relating to reservation
in Article 16(4) and Article 16(4A). (543-E-F; 544-D; 556-E to H; 557-A)

Ajit Singh Januja v. State of Punjab, [1996) 2 SCC 215, affirmed.

G 2. The' right to equal opportunity in the matter of promotion in the
sense of a right to be "considered" for promotion is indeed a fundamental
right guaranteed under Article 16(1). Article 16(1) provides to every employee
otherwise eligible for promotion or who comes within the zone of
consideration, a fundamental right to be "considered" for promotion. Equal
opportunity here means the right to be "considered" for promotion. If a
H person satisfies the eligibility and zone criteria but is not considered for
AJIT SINGH v. ST A TE 525
promotion, then there will be a clear infraction of his fundamental right to A
be •:considered" for promotion, which is his personal right. However, both
Articles 16(4) and 16(4A) dealing with reservation to SC/ST do not confer
any fundamental right nor do they impose any constitutional duty but are
only in the nature of enabling provision vesting a discretion in the State to
consider providing ·reservation if the circumstances mentioned in those B
Articles so warranted. There is a marked difference in the language employed
in Article 16(1) on the one hand and Article 16(4) and Article 16(4A). There
is no directive or command in Article 16(4) or Article 16(4A) as in Article
16(1). But a reasonable balance has to be struck between the fundamental
rights guaranteed under Article 16(1) and affirmative action under Articles
16(4) and 16(4A) so that the affirmative action does not lead to reverse C
discrimination. [536-F; 535-A-B; 538-A-B; 537-A)

CA. Rajendran v. Union of India, [1968) 1 SCC 721; Post Graduate
Institute of Medical Education & Research v. Faculty Association, [1998) 4
SCC 1, followed.
D
P&T SC/ST Employees' Welfare Association v. Union of India, [1998)
4 SCC 147; SB/ SC/ST Employees Welfare Association v. State Bank of India,
(1996) (4) SCC 119; MR. Balaji v. State of Mysore, [1963) Suppl. 1 SCR 439
and Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India,
[1981)1 sec 246, relied on.
E
Commissioner of Police v. Gordhandas Bhanji, [1952] SCR 135; Triloki
Nath Khosla v. State of Jammu and Kashmir, (1974) 1 SCC 19 and State of
Kera/av. Thomas, (1976) 2 SCC 310, referred to.

Julius v. Lord Bishop, (1880) 5 AS 214; Richmond v. Croson and Co.,
11989) 488 U.S. 469 and Adarand Constructors Inc v. Pena, 11995) 515 U.S. F
200, referred to.

Jagdish Lal v. State of Haryana, 11997) 6 SCC 538; Ashok Kumar
Gupta v. State of U.P., [1997]5 SCC 201; Comptroller and Auditor General
of India Gian Prakash v. K.S. Jagannathan, 11986) 2 SCC 679 and G
Superintending Engineer, Public Health v. Ku/deep Singh, (1997] 9 SCC
199, over ruled.

3. It is necessary to see that the rule of adequate ioepresentation in
Article 16(4) for the Backward Classes and the rule of adequate representation
in promotion for scheduled Castes and Scheduled Tribes under Article H
526 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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 Scheduled Castes and
Tribes, maintenance of efficiency of administration is of paramount
B importance. The provisions of the Constitution must be interpreted in such
a manner that a sense of competition is cultivated among all service
personnels, including the reserved categories. [541-F-G)

4. It cannot be accepted that Indira Sawhney 's case permitted
C reservations in promotions for a further period of 5 years and that during
that period Article 16(4A) was incorporated in Part III of the Constitution
and, therefore, the concept of seniority attached to the roster promotion, as
per certain rulings then in force, must be deemed to continue and deemed
to be permissible in view of Article 16(4A). Indira Sawhney 's case did not
go into issues relating to seniority and on the other hand it referred to the
D principle of balancing Article 16(4) against the right of the individual under
Article 16(1). [551-B-C-D]

Indira Sawhney v. Union of India, [1992] Suppl. 3 SCC 251, explained
and relied on.

E 5. The decision in Mervyn 's case cannot apply to a case of reservation
because the roster in Mervyn was intended to determine seniority while the
rostar in the cases of reservation under Article 16(4) or Article 16(4A) are
not intended to determine seniority but are merely intended to provide
'adequate representation" at the promotional level. [552-E-F]

F Mervyn Contindo & Ors. v. Collector of Customs, [1966) 3 SCR 600,
distinguished.

6.1. It is axiomatic in service jurisprudence that any promotions made
wrongly in excess of any quota are to be treated as ad hac. This applies to
G reservation quota as much as it applies to direct recruits and promotee
cases. Such promotees cannot plead for grant of any additional benefit of
seniority flowing from a wrong application of the roster. Before Sabharwal 's
case was decided, several reserved candidates got promotion in excess of
their quota du~ to wrong application of the roster points. If the law declared
in Sabbarwal 's case were to be treated as retrospective, it would have resulted
H in reversion of several officers. This court therefore, to prevent such
AJIT SINGH v. STATE 527
reversions, declared that the finding in Sabharwal 's case shall be operative A
, prospectively. Thus, while promotions in excess of roster made before 10.2.95
i.e. before Sabharwal 's case was decided were protected, such promotees
cannot claim seniority. Seniority in the promotional cadre of such excess
roster point promotees shall have to be reviewed after 10.2.95 and will count
only from the date on which they would have otherwise got normal promotion B
in any future vacancy arising in a post previously occupied by a reserved
candidate. [559-F-G-H; 560-A]

R.K. Sabharwal v. State of Punjab, [1995] 2 SCC 745, explained and
affirmed.

6.2. Where before 1.3.96 i.e. the date of Ajit Singh 's Judgment, at the C
level 3 there were reserved candidates who reached there earlier and also
senior general candidates who reached there later, (but before the reserved
candidate was promoted to level 4) and when inspite of the fact that the senior
general candidate had to be treated as senior at level 3 (in view of Ajit Singh),
the reserved candidate is further promoted to level 4 - ·without considering D
the fact that the senior general candidate was also available at level 3 - then,
after 1.3.96, it becomes necessary to review the promotion of the reserved
candidate to level 4 and reconsider the same (without causing reversion to
the reserved candidate who reached level 4 before 1.3.96). As and when the
senior reserved candidate is later promoted to level 4, the seniority at level
4 bas also to be refixed on the basis of when the reserved candidate at level E
3 would have got his normal promotion, treating him as junior to the senior
general candidate at level 3. (560-D-E-F]

Ajit Singh Januja v. State of Punjab, [1996) 2 SCC 215, explained and
affirmed.
F
Chander Paul v. State of Haryana, [1997) 10 SCC 474, referred to.

CIVIL APPELLATE JURISDICTION: I.A. Nos. 1-3 In Civil Appeal
Nos. 3792-94of1989.

From the Judgment and Order dated 23.8.89 of the Punjab and Haryana G
High Court in C.W.P. Nos: 2190/88, 7860/87, 7861of1987.

C.S. Vaidyanathan, Additional Solicitor General, Harish N. Salve, Dr.
Rajiv Dhawan, Hardev Singh, D.D. Thakur, L.G. Havnur, K. Parasaran, M.N.
Rao, Rajiv K. Garg, Preetesh Kapur, Atul Sharma, N.D. Garg, Rajiv Dutta, Ms.
Enakashi Kulshreshtha, Uday Kumar, Kapil Sharma, Hemant Sharma, K.C. H
528 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Kaushik, (D.S. Mehra) Advs. for Ms. Anil Katiyar, Chand Kiran, Dr. K.S.
Chauhan, E.C. Vidyasagar, Muqbal Chand, Prof. D.N. Sadashiv, A. Raghnath,
A. Subba Rao, Anurag· Mathur, Pradeep R. Tiwari, A. Mariarputham, Ms.
Aruna Mathur, A.D.N. Rao, (R.S. Suri) (NP) and Ms. Sushma Suri for the
appearing parties.

B The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. We have before us these three
Interlocutory Applications Nos_. 1 to 3 filed for "clarification" by the State of
Punjab in Civil Appeal Nos. 3792-94of1989 (Ajit Singh Januja & Others v.
C State ofPunjab) [ 1996] 2 SCC 215 (hereinafter referred to as Ajit Singh in this
judgment). The matter concerns a dispute relating to seniority of reserved
candidates and general candidates.

At the outset we make it clear that in this judgment we are not concerned
with the reservation policy of the State or with the validity of any procedure
D fixing roster points for purpose of promotion of reserved candidates. We are
here dealing only with a limited question relating mainly to seniority of the
r~served candidates promoted at roster points.

We also make it clear that what we are deciding today is based on
principles already laid down by this Court since 1950 and in particular since
E 1963. Basing on those principles, we are c?ncerned with the limited question
as to whether Union ofIndia v. Virpal Singh, (1993] 6 SCC 685 andAjit Singh
Januja v. State of Punjab, (1996] 2 SCC 215, which were earlier decided in
favour of the general candidates are to be affirmed or whether the latter
deviation made in Jagdish Lalv. State ofHaryana, (1997] 6 SCC 538 against
the general candidates, is to be accepted.
F
How these !As 1-3 came to be filed for clarification?

The circumstances under which the State of Punjab has filed these IAs
for clarification are as follows :

G Initially, in a case relating to the Indian Railways, a two Judge Bench
of this Court in Union ofIndia v. Virpal Singh, [ 1995] 6 SCC 685 (hereinafter.
referred to as Virpal) held that it was "permissible" for the Railways to say
that reserved candidates who get promotion at the roster points would not
be entitled to claim seniority at the promotional level as against senior general
candidates who got promoted at a later point of time to the same level. It was
H further held that "it would be open" to the State to provide that as and when
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 529

the senior general candidate got promoted under the rules - whether by way A
of a seniority rule or a selection rule - to the level to which the reserved
candidate was promoted earlier, the general candidate would have to be
treated as senior to the reserved candidate (the roster point promotee) at the
promotional level as well, unless, of course, the reserved candidate got a
further promotion by that time to a higher post. (This is described for B
convenience, as the 'catch up' rule)

Close on the heels of Virpal, came Ajit Singh from Punjab, before a
three Judge Bench and the Bench held that the question of seniority at the
promotional level had to be decided by applying the provisions of Articles
14 and 16 (1) and if any order, circular or rule provided that such reserved C
candidates who got promotions at roster points were to be treated as senior
to the senior general candidates who were promoted later, then such an order,
circular or rule would be violative of Articles 14 and 16(1). It was, however,
held that the position would be different if by the time the senior general
candidate got his promotion under the normal rules of seniority or selection,
the reserved candidate who was promoted earlier at the roster point, had got D

-
a further promotion. In other words, the 'catch up' principle as laid down in
Virpal was accepted. In coming to the above conclusions, the three Judge
Bench relied upon the principles laid down by the nine Judge Bench in Indira
Sawhney v. Union of India, [ 1992) Suppl. 3 SCC 251 and by the Constitution
Bench in R.K. Sabharwal v. State of Punjab, [1995) 2 SCC 745. These two
cases had laid down earlier the manner in which the rights of the general E
candidates and the reserved candidates ought to be balanced. 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 F
of India.

The Indian Railways following the law laid down in Virpal issued a
circular on 28.2.97 tc the effect that the reserved candidates promoted at
roster points could not claim seniority over the senior general candidates
•• prom~ted later. The State of Punjab after following Ajit Singh was proceeding G
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 v. State of Haryana, [ 1997] 6 SCC H
530 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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
B 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 v. State of U.P., [1997] 5 SCC 201 where a similar principle
had been laid down.

The Contentions in brief
c
Sri Harde_v 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
D 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 ofRajasthan and by Shri C.S. Vaidyanathan Addl. Solicitor
General of India for 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
E candidates cannot claim seniority on the basi~ of continuous officiatfon.
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
p 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 andAjitSingh in favour
G 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 rr.~pect of the reserved
candidates, the roster ceased to operate. Unless any of the reserved candidates
H already promoted had retired or been further promoted etc. and unless there
- AJIT SINGH v. STATE [M . .TAGANNADHA RAO, J.] 531
was a vacancy generated at the points already filled, fresh candidates from
the reserved candidates could not be promoted by further operation of the
A

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 B
excess promotions was also protected vide Sabharwal.

Likewise, in regard to Ajit Singh, the contention was as follows: Assume
there are rosters at Level I and again at Level 2. Assume that a reserved
candidate has been promoted from Level I to Level 2 on the basis of the
roster point and again from Level 2 to Level 3 on roster point. A senior C
general candidate at Level I has later reached Level 3 and by that date the
reserved candidate is still at Level 3. Assume that the plea of the general
candidates that the general candidate became senior at Level 3 to the earlier
promoted reserved candidate, is correct. Ignoring the senior general candidate
at Level 3, the reserved candidate has been further promoted to Level 4 before
1.3.96 when Ajit Singh was decided. In that event, the prospective operation D
of Ajit Singh means, according to the reserved candidates, that such a
reserved candidate is not only not to be reverted but his seniority at Level
... 4 is also to be protected. The general candidates say that after Ajit Singh was
decided on 1.3.96 the said promotion made to Level 4, ignoring the case of
the senior general candidate at Level 3, is to be reviewed and seniority at E
Level 3 is to be refixed. At Level 4, when the general candidate is also
promoted to Level 4, the seniority of the reserved candidate has also to be
fixed on the basis as to when he would have otherwise been promoted to
Level 4, after considering the case of his senior general candidate at
Level 3.
F
We shall be dealing with these main contentions in this judgment. So
far as the individual points raised in the Civil Appeals, Contempt Cases and
other IAs are concerned, w.e shall deal with them by separate judgments for
convenience.

On the above contentions, the following four main points arise for G
consideration:

Points:

- (I) Can the roster point promotees (reserved category) count their
seniority in the promoted category from the date of their H
A
532 SUPREME COURT REPORTS [1999] SUPP. 2 S.C:R.

continuous officiation vis-a-vis general candidates who were
--
senior to them in the lower category and who were later promoted
to the same level?
(2) Have Virpal, Ajit Singh been correctly decided and has Jagdish
Lal been correctly decided?
B (3) Whether the 'catch-up' principles contended for by the general
candidates are tenable?

(4) What is the meaning of the 'prospective' operation of Sabbarwal
and to what extent can Ajit Singh be prospective?

C Points (1) and (2):
A word with regard to Article 16(4) and Article 16 (4A):

Learned senior counsel for the general candidates submitted at the
outset that while Indira Sawhney permitted reservations for a period of five
years, the Constitution was amended within the said period and Article
D 16(4A) was incorporated permitting reservation in promotions but restricting
the same to Scheduled Castes and Scheduled Tribes. Learned counsel
submitted that it was their contention that this amendment was not ..
constitutionally permissible but this question need not be decided in this
batch as separate writ petitions challenging the validity of Article 16(4A) are
E pending in this Court. In view of the above stand, we shall proceed in these
cases on the assumption that Article 16(4A) is valid and is not
unconstitutional. At the same time, we also note the contention of the reserved
candidates that Article 16(4A) must be deemed to be constitutional unless
otherwise declared.

F Articles 16(1), 16(4) and 16(4A):

In the context of the first and second questions, it is necessary to refer
to the relevant parts of Article 16 of the Constitution of India.

Sub-clauses (1), (4) and (4A) of Article 16 which have relevance in this
G case read as follows: . -
"Article 16(1)-Equality of appointment in matters of public
employment-There shall be equality of opportunity for all citizens in

H
matters relating to employment or appointment to any office under the
State. -
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.) 533
(2)..................................... . A
(3) ..................................... .

(4) Nothing in this Article shall prevent the State from making any
provision for the reservation of appointment or posts in favour of any
backward class of citizens which, in the opinion of the State, is not B
adequately represented in the services under the State.

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

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 D
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 E
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
c9unsel 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.
F
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 G
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. H
534 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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 v. 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
B 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
C Papers, Harvard Law School). Similarly, in a beautiful metaphor Mr. J.M. Beck
said as follows:

"The Constitution is neither, on the one hand, a Gibraltor Rock, which
wholly resists the ceaseless washing of time and circumstances, nor is it, on
the other hand, a sandy beach, which is slowly destroyed by erosion of the
D waves. It is rather to be likened to a floating dock which, while firmly attached
to its moorings, and not therefore at the caprice of the waves, yet rises and
falls with the tide of time and circumstances" (Constitution of the United
States, Yesterday, Today and Tomorrow' ( 1924) (Oxford University Press)."

Such should be and would be our approach in resolving the important
E constitutional issues arising in these !As and in this batch of cases.
We shall first deal with the fundamental rights under Articles 14 and
16(1) and then with the nature of the rights of the reserved candidates under
Articles 16(4) and 16(4A).
F Articles 14 and 16(1): Is right to be considered for promotion a
fundamental right?

Article 14 and Article 16(1) are closely connected. They deal with
individual rights of the person. Article 14 demands that the "State shall not
G deny to any person equality before the law or the equal protection of the
Jaws". Article 16(1) issues a positive command that "there shall be equality
of opportunity for all citizens in the matters relating to employment or
appointment to any office under the State". It has been held repeatedly by
this Court that sub-clause (I) of Article 16 is a facet of Article I 4 and that
it takes its roots from Article 14. The said sub-clause particularizes the
H generality in Article 14 and identifies, in a constitutional sense "equality of
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 535

opportunity" in matters of employment and appointment to any office under A
the State. The word 'employment' being wider, there is no dispute that it takes
within its fold, the aspect of promotions to posts above the stage of initial
level of recruitment. Article 16(1) provides to every employee otherwise eligible
for promotion or who comes within the zone of consideration, a fundamental
right to be "considered" for promotion. Equal opportunity here means the
right to be "considered" for promotion. If a person satisfies the eligibility and B
zone criteria but is not c0nsidered for promotion, then there will be a clear
infraction of his fundamental right to be "considered" for promotion, which
is his personal right.

"Promotion" based on equal opportunity .and 'seniority' attached to C
such promotion are facets of fundamental right under Article 16(1):

Where promotional avenues are available, seniority becomes closely
interlinked with promotion provided such a promotion is made after complying
with the principle of equal opportunity stated in Article 16(1). For example,
ifthe promotion is by rule of 'seniority-cum- suitability', the eligible seniors D
at the basic level as per seniority fixed at that level and who are within the
zone of consideration must be first considered for promotion anct be promoted
if found suitable. In the promoted category they would have to count their
seniority from the date of such promotion because they get promotion through
a process of equal opportunity. Similarly, if the promotion from the basic level
is by selection or merit or any rule involving consideration of merit, the senior E
who is eligible at the basic level has to be considered and if found meritorious
in comparison with others, he will have to be promoted first. If he is not found
so meritorious, the next in order of seniority is to be considered and if found
eligible and more meritorious than the first person in the seniority list, he
should be promoted. In either case, the person who is first promoted will
normally count his seniority from the date of such promotion. (There are F
minor modifications in various services in the matter of counting of seniority
of such promotees but in all cases the senior most person at the basic level
is to be considered first and then the others in the line of seniority). That is
how right to be considered for promotion and the 'seniority' attached to such
promotion become important facets of the fundamental right guaranteed in G
Article 16(1).
..... Right to be considered for promotion is not a mere statutory right:

The question is as to whether the right to be considered for promotion
is a mere statutory right or a fundamental right.
H
536 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Learned senior counsel for the general candidates submitted that in
Ashok Kumar Gupta v. State of U.P., [1997] 5 SCC 201, it has been laid down
that the right to promotion is only a "statutory right" while the rights covered
by Articles 16(4) and 16(4A) are "fundamental rights". Such a view has also
been expressed in Jagdish Lal and some other latter cases where these cases
have been followed. Counsel submitted that this was not the correct
B constitutional position.

In this connection our attention has been invited to para 43 of Ashok
Kumar Gupta. It reads as follows:

"It would thus be clear that right to promotion is a statutory right. It
c is not a fundamental right. The right to promotion to a post or class
of posts depends upon the operation of the conditions of service.
Article 16(4) read with Articles 16(1) and 14 guarantees a right to
promotion to Dalits and Tribes as a fundamental right where they do
not have adequate representation consistently with the efficiency of
D administration ... before expiry thereof (i.e. 5 years rule), Article.· 16(4)
has come into force from 17.6.-1995. Therefore, the right to promotion
continues as a constitutional()' guaranteed fundamental right."

A similar view was expressed in Jagdishlal and followed in some latter
cases. In the above passage, it was laid down that promotion was a statutory
E right and that Articles 16(4) and 16(4A) conferred fundamental rights.

In our opinion, the above view expressed in Ashok Kumar Gupta, and
followed in Jagdish Lal and other cases, if it is intended to lay down that
the right guaranteed to employees for being "consider~d" for promotion
according to relevant rules of recruitment by promotion (i.e. whether on basis
F of seniority or merit) is only a statutory right and not a fundamental right, we
cannot accept the proposition. We have already stated earlier that the right
to equal opportunity in the matter of promotion in the sense of a right to be
"considered" for promotion is indeed a fundamental right guaranteed under
Article 16(1) and this has never been doubted in any other case before Ashok
G Kumar Gupta, right from 1950.

Articles 16(4) and 16(4A) do not confer any fundamental right to
reservation:

We next come to the question whether Article 16(4) and Article 16(4A)
H guaranteed any fundamental right to reservation. It should be noted that both
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 537
these Articles open with a non-obstante clause -"Nothing in this Article A
shall prevent the State from making any provision for reservation ..... ". There
is a marked difference in the language employed in Article 16(1) on the one
hand and Article 16(4) and Article 16(4A). There is no directive or command
in Article 16(4) or Article 16(4A) as in Article 16(1). On the face of it, the
above language in each of Articles 16(4) and 16(4A), is in the nature of an B
enabling provision and it has been so held in judgments rendered by
Constitution Benches and in other cases right from 1963.

We may in this connection point out that the attention of the learned
Judges who decided Ashok Kumar Gupta and Jagdish Lal was not obviously
drawn to a direct case decided by a Constitution Bench in C.A.Rajendran v. C
Union of India, [1968] 1 SCC 721 which arose under Article 16(4). It was
clearly laid down by the five Judge Bench that Article 16(4) was only an
enabling provision, that Article 16(4) was not a fundamental right and that it
did not impose any constitutional duty. It only conferred a discretion on the
State.. The passage in the above case reads as follows:
D
"Our conclusion therefore is that Article 16(4) does not confer any
right on the petitioner and there is no constitutional duty imposed on
the government to make reservation for Scheduled Castes and
Scheduled Tribes, either at the initial stage or at the stage of promotion.
In other words, Article 16(4) is an enabling provision and confers E
discretionary power on the State to make a reservation of appointment
in favour of backward class of citizens which, in its opinion, is not
adequately represented in the services of the State."

The above principle was reiterated in two three Judge Bench judgments
in P&T SC/ST Employees' Welfare Association v. Union of india, [1988] 4 F
SCC 147; and in SB! SC/ST Employees Welfare Association v. State Bank of
India, (1996] 4 SCC 119. In fact, as long back as in 1963, in MRBalaji v. State
of Mysore, [1963] Suppl. 1 SCR 439 (at p. 474) which was decided by Five
learned Judges, the Court said the same thing in connection with Articles
15(4) and Article 16(4). Stating that Articles 15 (4) and 16 (4) were only
enabling provisions, Gajend~agadkar, J. (as he then was) observed: G.
"In this connection, it is necessary to emphasise that Article 15 (4)
like Article 16 (4) is an enabling provision, it does not impose an
obligation, but merely leaves it to the discretion of the appropriate
government to take suitable action, if necessary."
H
538 SUPREME COURT REPORTS {1999) SUPP. 2 S.C.R.

A
...
Unfortunately, all these rulings of larger Benches were not brought to
the notice of the Bench which decided Ashok Kumar Gupta and Jagdish Lal
and to the Benches which followed these two cases. In view of the
overwhelming authority right from 1963, we hold that both Articles 16(4) and
16(4A) do not confer any fundamental ·rights nor do they impose any
B constitutional duties but are only in the nature of enabling provision 'vesting
a discretion in the State to consider providing reserv~tion ifthe circumstances
mentioned in those Articles so warranted. We accordingly hold that on this
aspect Ashok Kumar Gupta, Jagdishlal and the cases which followed these
cases do not lay down the law correctly.

C Power is coupled with duty:

Learned senior counsel for the reserved candidates, Sri K.Parasaran
however contended that Article 16(4) and Article 16(4A) confer a power
coupled with a duty and that it would be permissible to enforce such a duty
by issuing a writ of mandamus. Reliance for that purpO!;e was placed upon
D Comptroller and Auditor General ofIndia, "Gian Prakash v. K.S. Jagannathan,
(1986] 2 SCC 679 and also on Julius v. Lord Bishop, (1880) 5 AC 214 which
case was followed by this Court in Commissioner of Police v. Gordhandas
Bhanji, [1952] SCR 135. We are unable to agree with the above contention.
As pointed out earlier, the Constitution Bench of this Court in C.A. Rajendran
E v. Union of India, [1968] l SCR 721 held that Article 16(4) conferred a
discretion and did not create any constitutional duty or obligation. In fact,
in that case, a mandamus was sought to direct the Government of India to
provide for reservation under Article 16(4) in certain Class I and Class II
services. The Government stated that in the context of Article 335 and in the
interests of efficiency of administration at those levels, it was of the view that
F there should be no reservation. The said opinion of the Government was
accepted by this Court as reasonable and mandamus was refused. Even in
MR Balaji's case, the Constitution Bench declared that Article 16(4) conferred
only a discretion. It is true that in Jagannathan 's case, the three Judge Bench
issued a mandamus, after referring to Article 142, that the Government must
add 25 marks to SC/ST candidates who had taken the S.A.S. Examination for
.G
promotion as Section Officers and also that, in future, a reduced minimum
marks must be provided and announced before the examination. The Court
also observed that the Department had not passed orders as per a general
O.M. of the Government dated 21.9.1977. But the attention of the Court was
not drawn to the judgment of the Constitution Bench in C.A. Rajendran 's case
H and other cases to which we have referred earlier. Further, if the State is of
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 539
the opinion that in the interests of efficiency of administration, reservation or A
..,. relaxation in marks is not appropriate, then it will not be permissible for the
Court to issue a mandamus to µrovide for reservation or relaxation. We also
note that in Superintending Engineer, Public Health v. Ku/deep Singh,
( 1997] 9 SCC 199, Jagannathan 's case was followed and reference was made
to Article 16(4) and Article 16(4A) and t<;> the principle that where a power B
is coupled with a duty .as in Julius v. Lord Bishop and Commissioner of
Police v. Gordhandas Bhanji, the same could be enforced by the Court. But
we may point out that even in Ku/deep Singh 's case, no reference was made
to C.A. Rajendran and other cases. We, accordingly, hold that the view in
Jagannathan and Ku/deep Singh 's cases that a mandamus can be issued
either to provide for reservation or for relaxation is not correct and runs C
counter to judgments of earlier Constitution Benches and, therefore, these
two judgments cannot be said to be laying down the correct law.

Balancing offundamental rights under Article 16(1) and the rights of
reserved candidates under Articles 16(4) and 16(4A):
D
Having noticed that Article 16(1) deals with a fundamental right and
Article 16(4) and Article 16(4A) are enabling provisions,· we next come to the
need for balancing Article 16( I) and Articles 16(4) and 16(4A). Such a balancing
principle was enunciated by the Constitution Bench in 1963 in MR. Ba/aji v.
State of Mysore, [1963) Suppl. I SCR 439 wherein it was stated that the
interests of the reserved classes must be balanced against the interests of E
other segments of society. In Indira Sawhney 's case, Jeevan Reddy, J. explained
how the fundamental right of the citizens as declared in Article 16( 1) has to
be balanced against the claims of the reserved candidates in Article 16(4). The
learned Judge stated: (See page 734 para 808):

"It needs no emphasis to say that the principal aim of Articles 14 and F
16 is equality and equality of opportunity and that clause (4) of
Article 16 is a means of achieving the very same objective. Clause (4)
is a special provision - though not an exception to clause (1). Both
the provisions have to be harmonised keeping in mind the fact that
b<;>th are restatements of the principles of equality ensh~ined in Article G
14. The provision under Article 16(4) - conceived in the interests of
certain sections of society - should be balanced against the guarantee
of equality enshrined in clause (I) of Article 16 which is a guarantee
held out to every citizen and to the entire society''.

The same principle was reiterated in the judgment of the Constitution H
·.
540 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A Bench in Post Graduate Institute of Medical Education and Research v.
Faculty Association, [ 1998) 4 SCC 1 after referring to several earlier cases. It
was stated : (P. 22)

"The doctrine of equality ofopportunity in clause (1) of Article 16 is
to be reconciled in favour of backward classes under clause (4) of
B Article 16 in such a manner that the latter while serving the cause of
backward classes shall not unreasonably encroach upon the field of
equality."

In Ajit Singh, in the context of seniority for the roster point promotees
it was observed: (p. 733 of SCC)
c
"For attracting meritorious and talented persons into service, a balance
has to be struck, while making provisions for reservation in respect
of a section of the society. This Court from time to time has been
issuing directions to maintain that balance .... "

D The above approach in Balaji in 1963, Indira Sawhney in 1991 later in
Ajit Singh in 1996 and in PG! Case in 1998 for striking a balance between the
individuals' rights under Articles 14 and 16(1) on the one hand and affirmative
action under Articles 16(4) and I6(4A) on the other, appears to us to be on
the same lines. as the approach of the U.S. Supreme Court under the Equal
E Protection Clause in Richmond v. Croson and Co., (1989) 488 U.S. 469 (at
493). In that case, it was stated that while dealing with the affirmative action
taken in favour of African-Americans, the Equal Protection Clause which
conferred individual rights have to be kept in mind by the Courts. Justice
Sandra Day O'Connor observed:

F "The Equal Protection Clause of the Fourteenth Amendment provides
that "No State shall .... deny to any person within its jurisdiction the
equal protection of the laws" (emphasis added). As this Court has
noted in the past, the "rights created by the first section of the
Fourteenth Amendment are, by its terms, guaranteed to the individuals.
The rights established are perso~al rights" (Shelly v. Kraemer) 334
G U.S. (1948)."

The same learned Judge, Justice Sandra Day O'Connor, stated again
recently in Adarand Constructors Inc v. Pena, (1995) 515 U.S.200, that in such
matters relating to affirmative action, the Court would launch an inquiry to
ensure that the
H
AJIT SINGH v. STATE [M. JAGANNADHA RAO . .I.} 541
"personal right to equal protection of the laws has not been infringed." A
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: B
"Supposing, for instance, we were to concede in full the demands of
these communities who have not been so far employed in the public
services to the fullest extent, what would really happen is, we shall
be completely destroying the first proposition upon which we are all
agreed, that there shall be equality in opportunity." C
Krishna Iyer, J. also cautioned in Akhil Bharatiya Soshit Karamchari
Sangh (Railway) v. Union of India, [1981) 1 SCC 246 (at P.286) that "care
must be taken to see that classification is not pushed to such an extreme point
as to make the fundamental right to equality cave in and collapse". The
learned Judge relied upon Triloki Nath Khosla v. State ofJammu and Kashmir, D
[ 1974] 1 SCC 19 and State of Kera/a v. Thomas, [ 1976) 2 SCC 3 I 0. Krishna
Iyer, J. stated in Soshit Karamchari case, (para 102) that reservations cannot
lead to an 'overkill'. At page 301, His Lordship said:

"The remedy of 'reservations' to correct inherited imbalances must E
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 F
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 G
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. H
• 542 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A (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 I), 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
B is the effect of 'reservation'.

No~ 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,
C 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.
D
It deserves to be noticed that the roster points fixed at Level 1 are not
intended to determine any seniority at Level l between general candidates .
I
and the reserved candidates. This aspect we shall consider again when we
come to Mervyn Contindo v. Collector of Customs, [1966] 3 SCR 600 lower
down. The roster point merely becomes operative whenever a vacancy
E 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 v. State of Punjab.

(iii) Seniority of roster promotees:
F
Question is whether roster point promotions from Level l 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
G candidates. Ajit Singh was an appeal from the judgment of the Full Bench of
the Punjab and Haryana High Court in Jaswant Singh v. Secretary to Govt.
Punjab Education Departnient, (l 989) 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
H would also confer seniority. In fact, while dismissing the Writ petitions filed
AJIT SINGH v. ST ATE [M. JAGANNADHA RAO, J.] 543
by the general candidates the High Court declared that the State was obliged A
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.
B
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 C
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 D
is whether roster points promotees can rely on such a seniority rule?

In this context it is necessary to remember two fundamental concepts.

(a) Statutory Rules relating to promotion and seniority:

We shall take up the rules in one of these Services in Punjab - namely E
the rules concerning Ajit Singh in which the present IAs have been filed.

There are three sets of Rules for Class I, II and III Services. The Punjab
Secretariat Class III Service Rul~s, 1976 deal with the posts of Clerk (Level
1), Assistant (Level 2) and Superintendent (Grade II) (Level 3). At each of F
these two levels 1 and 2, there is a roster which implements reservation. The
reservation is by way of the circular dated 19.7.1969 in Punjab. For promotion
from level 1 to 2 and from Level 2 to Level 3, the employees are respectively
governed by Rule 7 for promotion and by Rule 9 for seniority. It is provided
in proviso (iii) to Rule 7(1) that all promotions shall be made by selection on
the basis of seniority-cu~-merit and no person shall have a right of promotio~ G
on the basis of seniority alone. Rule 9 speaks of seniority from the date of
continuous officiation.

The Civil Secretariat Service, Class-II Service rules, 1963 deal with
Superintendents (Grade I) i.e. Level 4 and Rule 8(2) states that promotion to
the above posts in Class II is by the method of seniority-cum-merit and Rule H
544 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

.A 10 states that seniority is to be counted from the date of continuous officiation.
Above Class II is class I which consists of posts of Under Secretary (Level
5) and Deputy Secretary (Level 6). Rule 6(3) of the Punjab Civil Secretariat
(Class I) Rules, 1974 refers to promotion by seniority-cum-merit while Rule 8
thereof speaks of seniority by continuous officiation. For promotion to Class
B II and Class I, there is no roster promotion i.e. no reservation. There is
reservation only in Class III posts by way of roster at two stages.

It is clear, therefore, that the seniority rule relating to 'continuous
of!iciation' in promotion is part of the general scheme ofrecruitment by direct
recruitment, promotion, etc., in each of the Services in Class I, II and III - and
C is based upon a principle of equal opportunity for promotion. In our opinion,
it is only to such promotions that the seniority rule of 'continuous officiation'
is attracted.
(b) Statutory rule of seniority cannot be de/inked and applied to
roster-point promotions:

D As stated above in Ajit Singh, the promotion rule in Rule 7(1) proviso
(iii) and the seniority Rule in Rule 9 under the 1976 Rules for Class III fonn
a single scheme and are interlinked. In other words, only in case the officers
have reached the level of Superintendents Grade II(Level 3) in the manner
mentioned in the Rule 7(1) proviso (iii) by competition between the Assistants
E (Level 2) and on consideration of their cases on the basis of seniority-cum-
merit, can the seniority Rule in Rule 9 relating to continuous officiation in the
post of Superintendent Grade II (Level 3) be applied. Here there is a roster
in Ajit Singh for promotion from Level I to Level 2 and from Level 2 to Level
3. The consequence is that in the case of roster point promotees, the said
candidates who get promoted as Superintendents Grade II (Level 3) as per the
F roster - having not been promoted as per Rule 7(1) proviso (iii) of the 1976
Rules i.e. upon consideration with their cases on the basis of seniority-cum-
merit at the Assistant level (Level 2), - they cannot rely upon Rule 9 of the
1976 Rules dealing with seniority from the date of "continuous officiation" as
Superintendents Grade II(Level 3). It is not pennissible to delink the seniority
Rule from the recruitment Rule based on equal opportunity and apply ·it to
G promotions made on the basis of the roster which promotions are made out-
side the equal opportunity principle.

The proper balancing of rights:

In the light of the above discussion, the proper balancing of the rights,
H in our view, will be as follows.
AJIT SINGH v. STATE [M. JAGANNADHA RAO . .I.] 545
.
The general candidates who are senior at Assistants' level (Level 2) and A
who have reached Superintendent Grade-II (Level 3) before the reserved
candidate moved to Level 4 (Supdt. Grade- I), will have to be treated as senior
at the level 3 also (Supdt. Grade-II) and it is on that basis that promotion to
the post of Level 4 must be made, upon first considering the cases of the
senior general candidates at Level 3. If the cases of the senior general
candidates who have reached Level 3 though at a latter point of time, are not B
first considered for promotion to Level 4, and if the roster point promotee at
Level 3 is treated senior and promoted to level 4, there will be violation of
Articles 14 and 16(1) of the Constitution of India. Such a promotion and the
seniority at Level 4 has to be reviewed after the decision of Ajit Singh. But
if reserved category candidates are otherwise eligible and posts are available C
for promotion to Level 4, they cannot be denied right to be considered for
promotion to Level 4, merely because erstwhile seniors at the entry levels
have not reached Level 3. What we have stated above accords, in fact, with
what was actually stated in Ajit Singh, [1996] 2 SCC 715. In that case, N.P.
Singh, J observed (P. 731) :
D
- "It also cannot be overlooked that for the first promotion from the
basic grade, there was no occasion to examine their merit and suitability
for promotion."
'
That, in our view, is the correct approach for balancing the fundamental
rights under Article 14 and Article 16(1) on the one hand and the provisions E
relating to reservation in Article 16(4) and Article 16(4A).

Was Jagdish Lal correctly decided:

Learned senior counsel for the reserved candidates however relied upon
Jagdish Lal to contend that the roster promotees can count seniority in the F
promoted post from the date of continuous officiation as against senior
general candidates promoted later. On the other hand, the leaned senior
counsel for the general candidates contended that the said decision does not
lay down the law correctly. We shall, th~refore, have to re~er to Jagdish Lal.

We were initially of the view that it may not be necessary to go into G
the correctness of Jagdish Lal, and that we could distinguish the same on
the ground that all the reserved candidates there had got further promotions
from the promotional level of Dy. Superintendents* before the general

*In Jagdishalal, the hierarchy of posts is Clerk, Assistant, Deputy Superintendent,
Superintendent, etc.
546 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A candidates reached that Level. But from the table set out in Jagdisft Lal, ii
would be noticed that in that case, Jagdish Lal, the general candidate,
reached the post of Deputy Superintendent on 27.10.87 before the reserved
candidate H.S. Hira was further promoted as Superintendent on 27.5 .88.
Similarly, Ram Dayal, another general candidate got promoted as Deputy
B Superintendent on 16.1.89 before the reserved candidates Sant Lal and Ajmer
Singh got promoted as Superintendent on 8.2.90 and 1.7.90. In that view of
the matter, it becomes necessary to go into the correctness of Jagdish Lal
on merits. As we would presently show, in Jagdish Lal, the seniority rule
which referred to continuous officiation and which applied to promotions
made after providing equal opportunity as per rules - was delinked from the
C promotion rule and applied to roster promotees, which, in our view, was the
main reason for arriving at a different result.

., Jagdish Lal arose from Haryana. The Haryana Education Directorate
(State Service Class III) Rule, 1974 provided for recruitment to the posts of
Clerk (Level 1), Assistant (Level 2) and Deputy Superintendent (Level 3). Rule
D 9(3) stated that all promotions would have to be made by selection based on
merit and taking into consideration seniority but seniority alone would not
give any right to such promotions. Rule 11 provided that seniority would be
counted from the date of "continuous officiation". The Court held in Jagdish
Lal that the roster promotees who were promoted to Level 3 could count their
E seniority from the date of continuous officiation in that level in view of Rule
1 I. From Level 1 to Level 2 and from Level 2 to Level 3, the rosters operated.
From the level beyond Level 3, the posts were Superintendent, Budget Officer,
Assistant Registrar and Registrar and were governed by the Haryana Education
Department (State Service, Group B) Rule, 1980, and there was no reservation.
In those Rules also, Rule 9(3) stated that all promotions would have to be
F made by selection based on merit and taking into consideration seniority but
seniority alone was not to give any right to such promotion. Rule 11 of the
1980 Rules also stated that seniority would count from the date of continuous
officiation. Thus, in the Class III as well as Class II (Group B) Services, the
"continuous officiation" rule was i'1terlinked with the promotion rule based
G on equal opportunity, as in Ajit Singh, and formed a single scheme.

The Court in Jagdish Lal delinked Rule 11 from the recruitment rules
and applied the same to the roster promotees. For the reasons given already
in regard to Ajit Singh, we hold that Jagdish !al arrived at an incorrect
conclusion because of applying a rule of continuous officiation which was
H not intended to apply to the reserved candidates promoted at roster points.
A.IIT SINGH,.. STATE [M. JAGANNADHA RAO. J.] 547
The various rulings relied upon in Jagdish Lal do not, in our opinion, A
support the conclusions arrived at in that case. Some of these rulings were
those where it was held that mere empanelment in a seniority list would not
confer a right to promotion. Some other cases relied upon were cases where
it was held that mere chances of promotions were not 'conditions of service'
which were protected. So far as the cases which held that mere inclusion of B
a name in a panel did not create any right to promotion, there could be no
quarrel with the said proposition. So far as the cases like State of Maharashtra
v. Chandrakant Kulkarni, [1981] 4 SCC 130, Mohd. Shujat Ali v. Union of
India, [ 1975] 3 SCC 76, which held that mere chances of promotion were not
conditions of service, they were not applicable to the present situation. It
must be noticed that those cases arose under the States Reorganisation Act, C
1956 where the words 'conditions of service' were used in Section 115(7) of
that Act. The factual position there was that when employees of two different
States were integrated, their seniority in the parent States necessarily got
affected. The proviso to Section 115(7) of the Act required that, if the State
to which they were allotted wanted to alter their "conditions of service'',
previous permission of the Central Government was necessary. It was in that D
context that it was held that mere chances of promotions were not conditions
of service and there was no question of seeking the sanction of the Central
Government if chances of promotion were affected after allotment to a new
State. In fact, the Central Government, had issued orders, under Section 115(7)

- that various other conditions of service in the parent State like salary, leave E
etc. alone would remain protected. The above cases were therefore not in
point. The case in Mohd. Bhakar v. Y. Krishna Reddy, (1967) SLR 753 SC was
in fact overruled in Mohd. Shujat Ali. So far as K. Jagadeesan v. Union of
India, [1990] 2 SCC 228 was concerned, it related to a case where a person's
seniority stood affected by an amendment to the Rules and it was held that
that did not make the rule retrospective. Syed Khalid Rizvi v. Union of India, F
[1993] Suppl. 3 SCC 575 no doubt said that there was no "right to promotion"
but even that case accepted that there was a right to be "considered' for
promotion. So far as Akhil Bhartiya Soshit Karamchari Sangh v. Union of
India, (1996) 6 SCC 65 to which one of us (G.B. Pattanaik, J. was a party). That
case, in our view, was correctly decided on facts because by the date the G
general candidate reached the higher category, the reserved category promotee
who reached that category earlier had got a further promotion. Reference was
also made in Jagdish Lal, to A. K. Bhatnagar v. Union of India,J.1991] I SCC
544. That was a case where ad hoc recruits were regularised subsequently
and were placed below regular recruits. It was held that their past ad hoc
service could not be taken into account since they remained out of the cadre H
...
-

548 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A until regularisation. That case, in our view, has also no application. Jagdish
Lal is, therefore, not correctly decided.

Observations in As/wk Kumar Gupta which run contrary to Indira
Sawhney and Sabharwal do not lay down correct law:

B We may state that there are various other observations made in Asl10k
Kumar Gupta and we find that they run counter to the principles laid down
by the nine Judge Bench in Indira Sawhney and the Constitution Bench in
Sabhanval. In our view, these observations must, therefore, be treated as not
laying down the correct law. Learned counsel for the parties were in agreement
C with this line of approach. We, therefore, leave Ashok Kumar Gupta and do
not deal with it any further.

Was Vi1pal not decided correctly, as contended by reserved candidates?

We then come to another important point that was argued by learned
D senior counsel Sri K.Parasaran. It was argued that in Virpal, the Court was
concerned with a circular of the Railways dated 31.8.82 which permitted
discounting the seniority of roster promotee from the date of continuous
officiation and which also stated that his seniority should be as per the
ranking in the basic level. The Court in Virpa/ held that it was "permissible"
for the Government to do so. Jt was argued by Sri K.Parasaran that it was one
E thing to say that it was "open" to the Government to deprive the roster
promotee of the benefit of such seniority from the date of roster promotion
but it was another thing to say that even if the Government thought fit to
give benefit of seniority on the basis of roster promotion, the same should
be tested on the anvil of Articles 14 and 16(1) of the Constitution of India.
Thus, it was argued that Ajit Singh went far beyond Virpal when it held that
F any circular, order or rule granting seniority to the roster promotee would be
violative of Articles 14 and 16(1) of the Constitution of India.

That brings us to a close examination of the main principle laid down
in Virpal and in Ajit Singh. We shall first take up Virpal. In Virpal, the facts
G were that the Court was concerned with a circular dated 31.8.82 of the Railways
which stated that the seniority of the roster promotees would be based on
their panel position in the initial grade. The case involved two services-
Guards and Station Masters. Railway Guards would be recruited as Guard C
and promoted as Guard B, then as Guard A and as Guard (Special). Promotion
was to be by rule of seniority-cum-suitability. In other words, these were non-
H selection posts. On the other hand, in the case of Station Masters, a selection
AJIT SINGH v. STATE [M. JAGANNADHA RAO. J.] 549
process was involved for purposes of promotion . A
..,
It is argued by the reserved candidates that Virpal was not correctly
decided because in Virpal, the Court went by a printed Brochure and committed
a factual mistake in thinking that the circular of the Railways itself required
the panel seniority at the initial level to be reflected at higher levels. The same
point was raised by the Indian Railways in its intervention applications IAs B
I 0-12/98. It was argued that in Virpal the Court erred in not noticing the full
text of the Circular dated 31.8.82 which, showed that, as per para 319 of the
Railway Establishment Code, Vol.I, panels were required to be prepared at
each level.

We have examined Virpal closely in the light of the above objection.
c
In our view, the above criticism is wholly unjustified and is based upon a
wrong mixing up of the separate conclusions arrived at in Virpal in regard to
two different sets of employees. As stated earlier, the Court was there
concerned with posts of Railway Guards and also with posts of Station
Masters. The former (i.e. Guard posts) were posts governed by the rule of D
. seniority-cum-suitability. In other words, for Guards, seniority would govern
subject to omission of those found unsuitable for promotion. On the other
hand, Station Masters' posts were governed by selection at every level of
promotion. The learned Judge, Justice Jeevan Reddy, while dealing initially
with the pr.omotions of Guards (See P.702 of SCC) from C Grade to B, from
E
B to A, and from A to Special Grade A pointed out that the seniority-cum-
fitness rule applicable in their cases resulted in the seniority at the Level of
Guard C in the initial panel being reflected from stage to stage, subject to
fitness. When the learned Judge came to discuss the is~ues relating to Station
Masters, (See SCC P. 711) where merit and selection were involved, the
learned Judge stated that separate panels were to be prepared at every level F
and also that those in an earlier panel would be senior to those in a latter
panel. In either situation, it was laid down that the reserved candidates could
not count their 'seniority' on the basis of roster point promotion. Learned
Additional Solicitor General, Sri C.S. Vaidyanathan, attempted to argue that
what the Court said in paras 25, 26 was wrong as it assumed that seniority
at Level I would get reflected in the levels higher up and what is stated in
G

-
paras 46, 47 in regard to one previous panel having priority over a later panel
would apply in all cases, even to Guards referred to in paras 25, 26. The said
contention, in our view, is based on a mixing up of the cases of Station
Masters and Guards who were governed by different rules of promotion. We
are satisfied that there is no factual mistake committed in the judgment in H
550 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A Virpal. In fact, subsequent to Vi1pal, the Railways accepted the judgment and
issued an order on 28.2.1997 both in regard to non-selection and selection
posts. The point raised in the IAs by the Railways is therefore liable to be
rejected. We shall refer to these !As again in our separate judgment relating
to individual cases.

B Did Ajit Singh go beyond Vi1pal and if so, was it correctly decidecl?

We now deal with the points raised by the reserved candidates against
the correctness of Ajit Singh. It was urged by learned senior counsel Sri K.
Parasaran, that Ajit Singh went far beyond Vi1pal. It is pointed out that in
Virpal, this Court was concerned with a circular of the Railways which stated
C that the roster promotees could not, on that count, claim seniority. In that
context, Jeevan Reddy, 1. no doubt stated in Virpal See [ 1995] 6 SCC 684 at
701 as follows:

"In short, it is open to the State, if it is so advised ...... It is permissible
D for the State to do so."

But, according to learned senior counsel, Sri K. Parasaran, in Ajit Singh,
this Court went further and stated that any rule, circular or order which gave
-
seniority to the roster point promotees was bad and that this view is not
correct. Our attention is invited to [1996] 2 SCC 715 (at 732) as follows:
E
"According to us, this question cannot be examined only on the basis
of any circular, order or rule issued or framed by the State
Government or the Union of India. This has to be tested on the basis
of our constitutional scheme ofArticles J4 and 16 ofthe Constitution."

F In our opinion, there is no conflict in the principles laid down in these
two judgments, nor is there anything wrong in the above elucidation of the
law. In Virpal it was not necessary for the Court to go into the question

G
whether any circular - if it gave seniority to the roster point promotees
(reserved candidates) - could be treated as valid. But, in Ajit Singh which was
an appeal against the Full Bench Judgment in Jaswant Singh [1989] 4 SLR·
.
~-

257, this Court was dealing with a declaration made by the Full Bench for
implementation of the Punjab circular dated 19.7.69 (see para 29 of Full Bench)
which positively declared that the "roster points were seniority points". That
was why in Ajit Singh this Court had to consider the validity of such a
Circular. In Ajit Singh this Court held that the declaration granted in the
H impugned judgment of the Full Bench in Jaswant Singh on the basis of the
AJIT SINGH v. ST A TE [M. JAGANNAOHA RAO. J.] 551

.. Punjab circular would be in conflict with Article 14 and Article 16(1 ). This
Court had therefore to lay down that any circular, order or rule issued to
confer seniority to the roster point promotees, would be invalid. Thus, the
decision in Ajit Singh cannot be found fault with.
A

Does Indira Sawhney protect seniority of promotees at roster point:
B
Learned senior counsel Sri K.Parasaran contended that Indira Sawhney
/
permitted reservations in promotions for a further period of 5 years and that
during that period Article 16(4A) was incorporated in Part III of the Constitution
and, therefore, the concept of seniority attached to the roster promotion, as
per certain rulings then in force, must be deemed to continue and deemed to C
be permissible in view of Article 16(4A). We may point out that Indira
Sawhney did not have to go into issues relating to seniority and on the other
hand it referred to the principle of balancing Article 16(4) against the rights
of the individual under Article 16(1 ). It is, therefore, not possible to accept
that the 5 year rule and Article 16(4A) would keep out the applicability of
Article 16( I) to test the validity of any circular, order or rule which conferred D

- seniority to the roster point promotees.

Do principles in Mervyn Contindo, [1966} 3 SCR 600 apply to reserved
candidates? Does the roster point for reserved candidates at Level I decide
seniority at Level I?
E
Considerable reliance was placed by learned senior counsel Sri
D.D..Thakur and Sri Raju Ramachandran on the decision of this Court in
Mervyn Contindo and Ors. v. Collector of Customs, [1966] 3 SCR 600.

In that case, the service was constituted from two sources, namely F
direct recruits and promotees. Question of seniority arose at two levels - at
the level of Appraisers and at the level of Principal Appraisers. At the initial
level of Appraisers, there was a roster for determining the seniority of the
direct recruits and promotees. The direct recruits were placed first in the roster
and then the promotees alternatively at the basic level. The promotees who
joined service earlier questioned the above rule as being violative of their G
seniority at the level of Appraisers in view of Article 16( l ). This challenge was
negatived by this Court on the ground that such "anomalies arise not on
account of there being no direct recruitment for several years" and the roster
point seniority was not opposed to the principle of equality of opportunity
in Government service. It was said that the anomaly arose out of the fortuitous H
552 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
..
A circumstance that in the particular service of Appraisers, for one reason or
other, direct recruitment had fallen short of the quota fixed for it. The Court
said: "we are not prepared to say that the rotational system of fixing seniority
itself offends equality of opportunity .... ". To this extent the Court held against
-
the promotees in regard to seniority at the basic level of Appraisers. The
B point here is the roster points in the case of reserved candidates do not
determine seniority at the basic level.

Learned senior counsel for the reserved candidates however relied upon
the second part of Mervyn which related to seniority at the next level of
Principal Appraisers. It was the contention of the direct recruits-respondents
C that here again the seniority should be alternated between direct recruits and
promotees as done at the basic level, though there was no such rule. Here,
the promotee Appraisers contended that the seniority at the level of Principal
Appraisers would be governed by the rule of continuous officiation and that
there can be no rotation alternatively at this higher level on the basis of
D birthmarks at the level of Appraisers. This plea of the promotees was accepted
by this Court. The point here is that once the roster at the level of Appraisers
is one which fixed seniority at level l, promotions to Level 2 for Principal
Appraisers, have necessarily to be made on that basis. For fixing seniority at
Level 2, there is no question of placing .direct recruits and promotees
E alternatively. It has to be on the basis of date of promotion of each of the
officers to Level 2, irrespective of their birthmarks.

The above decision in Mervyn cannot apply to a case of reservation
because the roster in Mervyn was intended to determine seniority while the
roster in the cases of reservation under Article 16(4) or Article 16(4A) are not
F
intended to determine seniority but are merely intended to provide "adequate
representation" at the promotional level.

To what extent, Hiralal, Karamchand and Kai/ash Chand Joshi's cases
help the reserved candidates?
G
Learned senior counsel for the reserved candidates placed strong reliance
on three other decisions of this Court namely, State of Punjab v. Hira Lal,
[ 1970] 3 SCC 567, Karam Chand v. Haryana State Electricity Board, [ 1989]
Suppl. l SCC 342 and Kai/ash Chand Joshi v. Rajasthan High Court, [1996]
H 1 SCALE 752. In Hira lal's case decided by a three Judge Bench, there was
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 553
a circular issued by the Punjab Government providing, for the first time, A
reservation in promotional posts. The 1st respondent who was a general
candidate senior to the reserved candidate (respondent 3) was not promoted
while the reserved candidate though junior, was promoted. The High Court
allowed the writ petition filed by the general candidate (1st respondent) on
the ground of violation of Article 16( I). The said judgment was set aside in B
view of the law laid down in the General Manager, Southern Railway v.
Rangachari, (1962] 2 SCR 586 that reservation was permissible at the
promotional level. In that case, the Court had no occasion to consider any
circular prescribing seniority to the roster promotees. That case is therefore
not in point. Karamchand,, decided by a two Judge Bench was, no doubt,
concerned with the question of seniority of the roster point promotee. The C
appellant, who was from the reserved category, belonged to the Haryana State
Electricity Board and the Haryana Government's circular dated 27.4.72 pointed
out that the roster was meant only for reservation and not for fixing inter-
se-seniority and that seniority depended upon the merit list prepared by the
Public Service Commission or Selection Board. But the appellant, the reserved D
candidate relied upon Rule 9 of the Punjab PWD (Electricity Branch) Service
Class III (Subordinate Posts) Rules, 1952 where Rule 9 provided seniority to
be determined from the date of "regular" promotion. The limited dispute was
whether his case fell within the "Exception" in Rule 9 which related to
"temporary" promotees who would not get seniority upon such temporary E
promotion. The contention of the Board that he was a temporary promotee
was not accepted by this Court on the facts of the case. No question vis-a-
vis a general candidate arose. There are indeed certain observations that
seniority of the reserved candidate had to be counted from the date of regular
promotion which, in our opinion, are not correct. No question of Article 16(1) F
or seniority as against a general candidate arose. That case is distinguishable.
In Kailash Chand Joshi the appellant, who was senior, belonged to the non-
reserved category in the cadre of Munsifs. The respondents 3 to 11 though
junior in that cadre to the appellant, were promoted as Civil Judges earlier on
the basis of roster. The general candidate (appellant) got promoted as Civil
Judge later and claimed seniority in the cadre of Civil Judge. By that date the G
roster promotee did not get any further promotion. This was not accepted by
this Court in view of Rule 11. There are two aspects of this decision. Firstly,
the Court did not notice that once the general candidate, the appellant, who
was senior to the respondents reached the level of Civil Judge, the position
would be different. Such a principle, in fact, came to be laid down shortly H
554 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A thereafter in Virpal by the same learned Judge who decided Kai/ash Chand
Joshi. Secondly, it was not noticed that Rule 22 relating to seniority from the
date of continuous officiation was closely interlinked with the promotional
Rule based on equal opportunity. We may state that any observations in the
above cases that the roster promotees will get seniority over the senior
B general candidates who reach that level later, (but before the further promotion
of the reserved candidate) cannot be accepted as correct in view of the legal
position stated earlier.

A 'poignant scenario ' in some cases:

C We next come to the poignant scenario in several of the matters before
us. Virpa/ referred to such a scenario where all the 33 candidates who were
-to be considered for 11 vacancies were from the SC/ST category (see P.710
of SCC). Before us, similar facts are placed by the general candidates. The
factual position is not disputed, though certain reasons have been set out by
both sides which none has scientifically examined. It is to be noticed that :
D (i) in Ajit Singh itself, - (see p.76 and PP.200-215, 232 of paper book) as on
30.9.94 out of I 07 officers working as Superintendent Grade I, the first 23
officers are from Scheduled Castes. At the level of Under Secretaries, out of
19, the first 11 are from SC category. In the category of Dy. Secretary, out of
four, 2 are from SC category. As on 30.9.94, the position was that at these
,.
E levels, the percentage was 22.5%, 54% and 67% respectively in the above
categories. If the seniority is to be counted as per the case of the reserved
candidates, the position would be that Dy. Secretaries would be 100% manned
by Scheduled Castes, and Under Secretaries would again be 100% manned by
Scheduled Castes while Superintendents Grade I would be so manned to the
F extent of 53%.

(ii) In Jatinderpal Singh 's case (C.A.Nos. 316-317/99) the top 134
positions of Principals (from He_ad Masters' source) would be from Scheduled
- Castes while the top 72 positions (from Head Mistress's source) would be
from Scheduled Castes. It is stated that " adding this to the number awaiting
G promotions'', the position would be that top 217 and 111 in these categories
would be Scheduled Caste candidates - which would be 100% and 71% (the·
posts being only 156 under each source). One does not know what will
happen in posts beyond Principal, if all persons in the zone are from SC/ST
category.

H (iii) In Kamal Kant (SLP.4945/97 from Haryana) as of today:
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.) 555
(a) among Deputy Secretaries, the first 8 posts are occupied by the A
reserved category (Scheduled Castes and Backward Classes)

(b) among Under Secretaries (Group A) (officiating) 14 posts at the
higher levels are occupied by the reserved category.

The above factual position is not, in fact disputed but it is said that this B
could be because the roster was operated again and again till that was
stopped after Sabharwal was decided, but nobody has gone into the extent
to which excess roster operation has created such a situation.

In the written submissions of learned senior counsel, Sri Raju
Ramachandran dated 5.8.99, such a situation of almost all top posts being C
manned by reserved candidates is sought to be justified as being not
constitutionally inhibited. In our view, such a situation was never intended
by the founding fathers. One should only read the speech of Dr. Ambedkar
in the Constituent Assembly as quoted in Indira Sawhney (See pp. 660-661
SCC) (referred to earlier). D
We may, however, make it clear that our decision in regard to the Article
16(1), Article 16(4) and Article 16(4A) that the rule of"continuous officiation"
is applicable only to promotions made as per rules which give equal opportunity
-and not otherwise, - is independently arrived at on the basis of the
constitutional position and is in no way coloured or influenced by the above E
facts mentioned by the general candidates.
Our Conclusions on Points I and 2:
We, therefore, hold that the roster point promotees (reserved category)
cannot count their seniority in the promoted category from the date of their
continuous officiation in the promoted post, - vis- a-vis the general candidates F
who were senior to them in the lower category and who were later promoted.
On the other hand, the senior general candidate at ·the lower level, if he
reaches the promotional level later but before the further promotion of the
reserved candidate-he will have to be treated as senior, at the promotional
level, to the reserved candidate even if the reserved candidate was earlier G
promoted to that level. We shall explain this further under Point 3. We also
hold that Virpal and Ajit Singh have been correctly decided and that Jagdish
Lal is not correctly decided. Points l and 2 are decided accordingly.
Point 3:
During the discussion under this "catch-up" point - for purposes of H
556 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A convenience, - we take the example of the cadres in Ajit Singh i.e. there is
roster point promotion for reserved candidates for promotion from Level 1 to
Level 2 and from Level 2 to Level 3. There is no roster for promotion from
Level 3 to Level 4.

Two 'catch up' rules contended for by general candidates:
B ~-
Now, as stated earlier, the counsel for the general candidates argued for •'
~

acceptance of two catch-up rules.

Extreme 'catch-up ' rule:

C So far as the extreme contention of the general candidates that at Level
3, the roster candidate must wait at Level 3 - before being promoted to Level
4 - till the last senior general candidate at Level 1 reached Level 3, - we reject
the same in as much as that will not amount to a reasonable balancing of the
rights of the candidates in the two groups. Nor do we accept that posts must
D be kept vacant and no promotions of the roster candidates be made.

Other Catch-up rule:

As accepted in Virpa/ (see [1995] 6 SCC 684 at 702) and Ajit Singh (see
[1996] 2 SCC at P.729, we hold that in case any senior general candidate at
E Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the
reserved candidate (roster point promotee) at Level 3 goes further up to Level
4 in that case the seniority at Level 3 has to be modified by placing such a
general candidate above the roster promotee, reflecting their inter se seniority
at Level 2. Further promotion to Level 4 must be on the basis of such a
F modified seniority at Level 3, namely, that the senior general candidate of
Level 2 will remain senior also at Level 3 to the reserved candidate, even if
the latter had reached Level 3 earlier and remained there when the senior
general candidate reached that Level 3. In cases where the reserved candidate
has gone upto Level 4 ignoring the seniority of the senior general candidate
at Level 3, seniority at Level 4 has to be refixed (when the senior general
G candiqate is promoted to Level 4) on the basis of when the;: time of reserved
candidate for promoti~n to Level 4 would have come, if the case of the senior
general candidates was considered at Level 3 in due time. To the above extent,
we accept the first part of the contention of the learned counsel for the
general candidates. Such a procedure in our view will properly balance the
H rights of the reserved candidates and the fundamental rights guaranteed
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 557
under Article 16(1) to the general candidates. A
No difficulty in amending seniority list:

One of the objections raised before us and which appealed to the Full
Bench in Jaswant Singh's case was that this 'catch up' principle would lead
to frequent alteration of the seniority list at Level 3. We do not find any B
difficulty in this behalf. The seniority list at Level 3 would have only to be
merely amended whenever the senior general candidate reaches Level 3.

Examples given by reserved candidates - do not create any anomaly:

Learned senior counsel Sri K. Parasaran and Sri Raju Ramachandran
c
then adverted to a situation which according to them might create serious
problems if a senior general candidate is to be treated as senior at the
promotional level if he reaches that level before the roster promotee goes
further up. The example given refers to cases where after the roster point
promotee (reserved candidate) reaches the promotional level, there is direct D
recruitment or recruitment by transfer at that promotional level. Counsel
submit that, if a senior general candidate is thereafter promoted and placed
above the reserved candidate, can he became senior to the direct recruit and
transferee? We do not find any anomaly. The direct recruit or transferee who
has no grievance against the reserved candidate who was already there can E
have no grievance against a senior general candidate who has a superior
claim, in law, against the reserved candidate.

Even if seniority of roster point promotee does not count, experience
of both groups can be considered as part of merit for further promotion: F

Before we leave point 3, we may refer to another submission made by
Sri K. Parasaran, learned senior counsel for the reserved candidates. Learned
counsel submitted that even if the seniority of the reserved candidates had
gone up to Level 3 earlier by the roster at two levels 1 & 2 is not counted,
still the 'experience' gained by them at Level 3 well before the senior general G
candidate 'caught up' to that Level, cannot be disregarded for purposes of
promotion to Level 4.

It is true that the roster point promotee who has reached the promotional
level 3 even if he is not entitled to seniority would have gained considerable H
558 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 'experience' at that level. That experience is, no doubt, of considerable relevance
in considering his case for further promotion to Level 4. But, at the same time,
it is to be noted that the general candidates had longer experience at level
I and level 2 and have come up to level 3 by way of competition among the
general candidates at two stages. The said longer 'experience' gained by them
B at the lower levels I and 2 and the manner in which they have reached the
level 3 to which the reserved candidate had reached earlier, are also relevant
factors. The quality of the experience ()f these groups also needs to be kept
in view. The above principle would be an equitable balancing of the 'experience'
of the candidates at various levels. It will be appropriate for the Government
of India or the State Government, as the case may be, to formulate guidelines
C by way of administrative orders or by way of rules in this behalf. Point 3 is
disposed of accordingly.

Point 4:

D This point concerns the "prospective" operation of the two judgments
in Sabharwa/ and Ajit Singh. The point regarding these two cases directly
arises in the appeals from Punjab, Haryana and Rajasthan. The prospectivity
of Virpal has been particularly raised by learned Additional Solicitor General,
Sri C.S. Vaidyanathan, in the !As filed by the Railways. Once again our
E approach here is to prevent reversions and avoid hardship to the reserved
candidates already promoted before the two judgments and at the same time
to try to balance the rights to seniority of the general candidates as against
those of the reserved candidates, in the light of Article 16(1).

Prospectivity of Sabharwal:
F
(i) What Sabbarwa/ said in regard to "prospectivity ":

Before Sabharwal was decided on 10.2.1995, it appears that, in several
services, the roster was initially put in operation and promotions at all the
G roster points were filled up. But the roster was once again operated on future
vacancies, even though all the required reserved candidates were in position
at the promotional level. It was not realised that once the roster points were
all filled, the roster had served its purpose and fresh members of the reserved
classes could claim promotional posts only if any promotional posts already
filled by the reserved candidates fell vacant. This misapplication of the roster
H came to be removed for the first time on 10.2.95 when Sabharwa/ was
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.) 559
decided. Obviously, by that time several reserved candidates had got promotion A .
in excess of their quota because of the wrong "re-operation" of the roster
,., points. If the law declared in Sabharwal were to be treated as retroactive as
is the nonnal position whenever the law is declared by this Court, it would
have resulted in reversions of several officers of the reserved classes as their
promotions before 10.2.95 by the fresh operation of the roster as aforesaid B
was wholly unjustified. This Court in Sabharwal therefore tried to prevent
such reversions and declared (P. 753 of SCC, Para 11) as follows at the end
of the judgment:

"We, however, direct that the interpretation given by us to the working
of the roster and our findings on this point shall be operative C
prospectively".

(ii) .The rival contentions:

To the extent of saving the reversions of those from reserved classes
promoted before 10.2.95 though such promotions were made contrary to what D
was decided in Sabharwa/, there is no serious dispute from the side of the
general candidates, but a contention is raised by the reserved candidates who
got such promotions in excess of the reservation quota that they should in
addition get the benefit of the seniority in the promotional post even. if such
promotion made before 10.2.95 was wrong in view of what was decided in E
Sabharwal. This plea is strongly opposed by the general candidates.

(iii) Our conclusion:

It is axiomatic in service jurisprudence that any promotions made wrongly
in excess of any quota are to be treated as ad hoc. This applies to reservation p
quota as much as it applies to direct recruits and promotee cases. If a Court
decides that in order only to remove hardship such roster point promotees
are not to face reversions, - then it would, in our opinion be, necessary to
hold---consistent with our interpretation of Articles 14 and 16( 1) - that such
promotees cannot plead for grant of any additional benefit of seniority flowing
from a wrong application of the roster. In our view, while Courts can relieve G
immediate hardship arising out of a past illegality, Courts cannot grant
additional benefits like seniority which have no element of immediate hardship.
Thus, while promotions in excess ofroster made before 10.2.95 are protected,
such promotees cannot claim seniority. Seniority in the promotional cadre of
such excess roster point promotees shall have to be reviewed after 10.2.95 and H
560. SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A will count only from the date on which they would have otherwise got normal
promotion in any future vacancy arising in a post previously occupied by a
reserved candidate. That disposes of the 'prospectivity' point in relation to
Sabharwal.

Prospectivity of Ajit Singh:
B
Coming to the 'prospectivity' of Ajit Singh, decided on l.3.96 the
question is in regard to the seniority of the reserved candidates at the
promotional level where such promotions have taken place before 1.3.96.

C We have accepted, while dealing with Points 1 and 2 that the reserved
candidates who get promoted at two levels by roster points (say) from Level
1 to Level 2 and level 2 to level 3 cannot count their seniority at Level 3 as
against senior general candidates who reached Level 3 before the reserved
candidates moved upto Level 4. The general candidate has to be treated as
D senior at Level 3.

Where, before 1.3 .96, i.e. the date of Aj it Singh 's judgment, at the level
3, there were reserved candidates who reached there earlier and also senior
general candidates who reached there later, (but before the reserved candidate
was promoted to level 4) and when in spite of the fact that the senior general
E candidate had to be treated as senior at level 3 (in view of Ajit Singh), the
reserved candidate is further promoted to level 4 - without considering the
fact that the senior general candidate was also available at level 3 - then, after
1.3.96, it becomes necessary to review the promotion of the reserved candidate
to level 4 and reconsider the same (without causing reversion to the reserved
p candidate who reached level 4 before 1.3.96). As and when the senior reserved
candidate is later promoted to level 4, the seniority at level 4 has also to be
refixed on the basis of when the reserved candidate at level 3 would have got
his normal promotion, treating him as junior to the senior general candidate
at level 3. Chander Paul v. State of Haryana, [1997] 10 SCC 474 has to be
understood in the manner stated above.
G
We hold accordingly on Point 4.

We dispose of the clarification applications IAs 1 to 3/98 filed by the
State of Punjab accordingly and hold that Ajit Singh and Virpal lay down the
H correct law and not Jagdish Lal, which must be considered as confined to
AJIT SINGH v. STATE [M. JAGANNADHA RAO, J.] 561

correct law and not Jagdish Lal, which must be considered as confined to A
its own peculiar facts. We shall be passing separate orders in the Punjab,
Haryana and Rajasthan cases and Contempt Cases and other IAs on the basis
of the principles laid down in this judgment which, for convenience will be
called Ajit Singh II. ·

IAs Nos. I to 3/98 are disposed of accordingly.
B

S.V.KI. IAs disposed of.

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