Holding

The reservation percentage prescribed under the government instructions must be strictly adhered to; the roster operates only until the quota is met, after which vacancies are filled by candidates of the same category as the original roster‑point, and the percentage cannot be altered by counting backward‑class members promoted to general posts.

Summary

The petitioners, who belong to the general category, challenged the Punjab Government's reservation policy for promotions in the Punjab Service of Engineers, arguing that the roster system and the percentage of reserved posts should cease once the prescribed quota was met and that backward‑class candidates already promoted to general posts should be counted towards the reservation percentage. The Court examined the statutory framework, the Punjab Service of Engineers (Class I) Rules, 1964, and the 1974 government instructions reserving 14% for Scheduled Castes and 2% for Backward Classes. It held that the reservation percentage must be strictly observed regardless of how many backward‑class members have been promoted to general posts, and that the roster (running account) operates only until the quota is filled. After the quota is satisfied, any vacancy must be filled by a candidate from the same category as the original roster‑point, ensuring the overall reservation percentage is not exceeded. The Court rejected the petitioners' first contention and accepted the second, directing that the interpretation apply prospectively, and dismissed the writ petition.

Issues considered

The reservation percentage must be maintained irrespective of promotions of backward‑class candidates to general category posts.
Whether the roster or 'running account' system should cease once the prescribed quota of reserved posts is filled.
Interpretation of the terms 'post', 'vacancy', and 'cadre strength' for calculating reservation percentages.
Whether Article 16(4) of the Constitution permits the State to fix and strictly follow the reservation percentages in the manner challenged.
Whether the State can vary the reservation percentage based on existing representation of backward classes in the service.

Legislation cited

Constitution of Indias. Article 16(4)

Subjects

ReservationService PromotionRoster SystemRunning AccountArticle 16(4)Backward ClassesScheduled CastesPunjab Service of EngineersEquality of Opportunity

Judgment

\

R.K. SABHARWAL AND ORS. A
v.•
THE STATE OF PUNJAB

FEBRUARY 10, 1995

[KULDIP SINGH, S. MOHAN, M.K MUKHERJEE, B
B.L. HANSARIA AND S.B. MAJMUDAR, JJ.]

Service La~jab Service of Engineers Class 1 P. W.D. (LB) Rules
1964.

Reservation of post for SC/ST/backward candidates-Roster system·
c
relevency in reservation of postr-Where roster is in the f onn of running
account, on yearly basis, once posts are filled up initially on that basis, the
percentage of reservation is achieved and so roster need not be continued
thereafte.,....:Vacancies arising after initial posts in the cadre are to be filled up
only by persons belonging to the same category to which the retiring person D
belonged/the category to which the post belonged in the roaste.,..._State may
cany forward the post on non-availability of reserve candidate-Right to be
considered for appointment to a post is only in relation to the number ofposts
which form tlte cadre strength-Reservation of posts to be related to cadre
strength. E
Words and phrases-Post', 'V~cancy', 'Running account', 'Cadre
strength'-Meaning of-In the context of service jurisprudence.

Both the Writ petitioners and the respondents were Engineers work· ·
Ing for the Irrigation Department or the Government or Punjab, thaugh p
the petitioners belong to the general category and the respondents to the
reserved category of SC/ST. As per Government instructions, there is 14%
reservation for SC and 2% for backward classes for promotion within and
to Class I and D, subject to the condition that the candidate has minimum
necessary qualifications and a satisfactory record. Thus in a lot of 100
vacancies occurring from time to time, certain serial numbers were G
reserved for SC and certain other numbers for backward classes. A roster
w,as to be kept and implemented in the form of a running account from
year to year. The relevant Rules also laid down other eligibHity conditions
like the number of years of service in the post etc. though the Government
could waive these after recording reasons. The Writ petition challenges H
35
I,.

36 SUPREME COURT REPORTS (1995] 2 S.C.R.

A ttils reservation policy.
. I
It was the case of the petitioners that they were already working as
Executive Engineers when the respondents were promoted superceding
several persons. They submitted, inter alia tbat there should be a nexus
between the object of the reservation and the mechanism used to promote
B the same. To arrive at the reservation figure, both the number of reserve
persons in the general category as well as in the reserved posts should be
counted. Once a post falls vacant, after tlie initial posts are filled up on
the basis of the roster, then such posts are to be tilled up only by the
category of person who were occupying the said post. The petitioners relied
C on Joginder Singh Sethi and Others v. Punjab Government and Others, (1982)
2 SLR307.

Disposing the Writ petition, this Court

HELD : 1. Despite any number of appointees/promotees belonging
D to the backward classes against the general category of posts the given
percentage has to be provided in addition. The prescribed percentage
cannot be varied or changed simply because some of the members of the
backward classes have already been appointed/promoted against the
general seats. [44-C. 43-H]
E 2. The 'running account' is to operate only till the quota pr.ovided
under the impugned instructions is reached and not thereafter. Once the
prescribed percentage of posts is filled the numerical test of adequecy is
satisfied and thereafter the roaster does not survive. (45-A]

F 3. The percentage of resrvation is the desired representation of the
backward classes in the State services and is consistent with the
demographic estimate based on the proportion worked out in relation to
their population. When a percentage of reservation is faxed in respect of a
.. particular cadre and the roaster indicates the reserve points, it bas to be
taken that the post shown at the reserve poinsts are to be filled from ---,._,
G amongst the members of reserve categories and the candidates belonging
to the general category are not entitled to be considered for the reserve
posts. On the other hand the reserve category candidates can compete for
non-reserve posts an_. in the event of their appointment to the said post
their nuniber cannot be added and taken into consideration for working
ff. out the percentage.of reservation. (45-B, 43-D-E]
<, '
R.K.SABHARWALv. STATEOFPB. 37

Joginder Singh Sethi and Others v. Punjab Govemment and Others, A
(1982) 2 SLR 307 and Jaswant Singh v. Secretmy to Govemment of Punjab,
Education Depa1tme11t, (1989) 4 SLR 257, referred to.

4. Article 16(4) ofthe Constitution of India permits the-State Govern-
ment to make any provision for the reservation of appointments or posts in
favour of any backward class of citizen which, in the opinion of the State is B.
not adequately represented in the services under the State. It is therefore,
incumbent on the State Government to reach a conclusion that the back-
ward class/classes for which the reservation is made is not adequately
represented in the State services. While doing so the State may take the total
population of a particular backward class and its representation in the C
State services. When the State after doing the necessary exercise makes the
~servation and provides the extent of percentage of posts to be reserved for
the said backward class then the percentage has to be followed strictly. The
roaster point has to be filled by way of appointment/promotion of the
member of the said class. No general category candidate can be appointed
against a slot in the roster which is reserved for the backward ciass. The fact D
that considerable number of members of a backward class have been ap-
pointed/promoted against seats in the State services may be a relevant
factor fer the State Government to review the question of continuing the
reservation for the said class but so long as the instructions/rules providing
certain percentage of reservations for the backward classes are operative E
the same bas to be followed. [43-F-H, 44-A-C]

5. Th~ reservations provided under the impugned Government in-
structions are to be operated in accordance with the roster to be main-
tained in each departmenL The roster is implemented in the form of p
running account from year to year. The purpose of 'running account' is to
make sure that the scheduled castes/scheduled tribes and backward clas-
ses get their percentage of reserved posts. When all the roster points in a
cadre are filled the required percentage of reservation is achieved. In other
words, in a cadre of 100 posts when the posts are earmarked in the roster
for the scheduled caste and backward classes are filled the percentage of G
reservation provided for the reserved categories is achieved. There is no
justification to operate the roster thereafter. The 'running account' is to
operate only till the quota. The numerical quota of posts is not a shifting
boundry but represents a figure with due application of mind. Therefore
the oalf way te ensure equality of opportunity to backward classes and the H
38 SUPREME COURT REPORTS [1995) 2 S.C.R.

A general catego'ry is to permit the roster to operate till the time the respec-
tive appointees/promotees occupy the posts meant for them in the roster.
The operation of the roster and 'running account' must come to an end
thereafter. Suppose all the posts in a cadre consisting of 100 posts are
filled in accordance with the l"oster by December 31, 1994. Thereafter in
B the year 1995, 25 general category persons (out of 84) retire. Again in the
year 1996, 25 more presons belonging to the general category retire. The
position which would emerge would be that the scheduled castes and
backward classes would claim 16% share out of the 50 vacancies. If 8
vacancies were given to them in the cadre of 100 posts the reserved
categories would be holding 24 posts thereby increasing the reservation
C from 16% to 24%. On the contrary if the roster is permitted to operate till
the total posts in the cadre are filled and thereafter the vacancies falling
in the cadre are to be filled by the same category of persons whose ~-
(
retirement etc. casused the vacancies then the balance between the reserve
category and the general category shall always be maintained. In the event
D of non-availablity of·a reserve candidate at the roster point it would be
open to the State Government to carry forward the point in a just and fair
,manner. (44-E-H, 45-A, C, 47-E-H]

Indira Sawhney v. Union of India, AIR (1993) SC 477, relied on.

E. 6. The vacancies arising to the cadre after the initial posts are filled,
will pose no difficulty. When there is a vacancy whether permanent or
temporary in a particular post the same bas to be filled from amongst the
category to which the post belonged in the roster. By following this proce--
dure there shall neither be shortfall nor excess in the percentage of
reservation. (45-D-E]
F
J.C. Malik and Others v. Union of India and Others, (1978) 1SLR844,
relied on.

7. The expressions 'posts' and 'vacancy' often used in executive -)---
instructions providing for reservations, are rather problematical. The
G word 'post' means an appointment, job, office, or employment. A position
to which a person is appointed. 'Vacancy' means an unoccupied post or
office. The plain meaning of the two expressions make it clear that there
must be a 'post~ in existence to enable ~e 'vacancy' to occur. [4~-Fl

H 8. The cadre-strength is alWays measured by the number of posts
R.K. SABHARWAL v. STATE OF PB. 39

comprising the cadre. Right to be considered for appointment can only be A
claimed in respect of a post in a cadre. As a consequence the percentage
of reservation has to be worked out in relation to the number of posts
which from the cadre strength. The concept of 'vacancy' has no relevance
in operating the percentage of reseniation. (45-G-H]

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 79 of B
1979.

(Under Article 32 of the Constitution of India.)

V.R. Reddy, Additional Solicitor General, G.K. Chatrath, A.G., C
Barish N. Salve, Punjab, Arun Jaitley, Rajiv Dhawan, Dr. Anand Prakash
( Sharma, V.C. Mahajan, S.N. Jha, D. Goburdhan, R.P. Singh, Ugra Shankar
Prasad, Wasim A. Qadri, Ashok K. Srivastava, D.S. Mehra, Ms. Anil
Katiyar, Ms. A subhashini, Arivind K. Sharma, Ms. Indu Goswami, Rajiv
K. Garg, Ms. Minakshi Grover, Ms. Monika Goyal, K.R. Nagaraja, R.
Santhana Krishnan, P.K. Rao, V.S. Chauhan, Sakesh Kumar for S.K. D
Agnihotri, R.S. Suri, T. Topgay, Rohit Kr. Aggarwal, P.H. Parekh, S. Fazl,
Ms. Nina Gupta, Vineet Kumar Arvind Minocha, S.K. Mehta, B.D. Shar-
ma, S.S. Khanduja, R. Nagarathanam, Madan Mohan Lal Srivastava, Ms.
S. Bagga, Hiranandani Sethi & Co., A.S. Bhasme, S.V. Tambwekar, S.K.
Verina, Devi D. Sharma, A.T.M. Sampath, D.N. Mishra, for JBD & Co., E
K.B. Rohtagi, D.B. Vohra, Prem Malhotra, C.V. Rappai, C.S.S. Rao, Ms.
Sushma Suri, S. Muralidhar Shakil Ahmad Syed, B.K. Prasad, P. Parmes-
waran Syed Shaukat Hussain, Mukul Mudgal, S. Srinivasan, Shyam Narain
Singh, A. Mariarputham, B.S. Gupta, Rajesh and V.K. Verma for the
appearing parties. F
The following Judgment of the Court was delivered:

--<. The petitoners and respondents 4, 5 and 6 are members of the
Punjab Service of Engineers (Class I) (the Service) in the Irrigation
Department of the State of Punjab. The respondents are members of the G
Scheduled Castes whereas the petitioners belong to the general category:
The conditions of service of the members of the Service are governed by
the Rules called The Punjab Service of Engineers Class I. P.W.D. (I.B.)
Rules, 1964 (the Rules). the Punjab Government by the instructions dated
M~y 4, 1974 provided; reservations for the Scheduled Castes and Backward H
"'-,
. 40 SUPREME COURT REPORTS (1995] 2 S.C.R.

A Classes in promotions to and within Class I and II services under the State
Government. It was laid down under the said instructions that 16 per cent
of the posts to be filled by promotion were to be reserved for members of
the Scheduled Castes and Backward Classes (14 per cent for the Scheduled
Castes and 2 per cent for the Backward Classes) subject to the conditions
B that the persons to be considered must possess the minimum necessary
qualifications and they should have satisfactory record of service. The
instructions further provided as under :

"(i) In a lot of 100 vacancies occurring from time to time, those
falling at serial numbers mentioned below should be treated as
c reserved for the members of Scheduled Castes;

1, 7, 15, 22, 30, 37, 44,51, 58, 65, 72, 80, 87, 91 and so on. Vacancies
y
i
falling at serial numbers 26 and 76 should be treated as reserved
for the members of Backward Classes.

D (ii) The reservation prescribed shall be given effect to in accord-
ance with a roster to be maintained in each Department. The roster
will be implemented in the form of a running account from year
to year."

E Rule 9 of the Rules which provides for promotion within the service reads
as under:

"Promotion within service :-

(1) Subject to the provisions of sub-rules 2 and 3 members of the
F Service· shall be eligible for promotion to any of the posts in the
Service, namely, Executive Engineers, Superintending Engineers
and Chief Engineers.

Provided that a Member of the Service in whose case the qualifica-
tions mentioned in clause (a) of Rule 6 ·have been waived, shall
G not be eligible for promotion to the post of Superintending En-
gineer or above till he has acquired the necessary qualification.

Explanation :- Once an officer has been appointed a member ol
· the Service, his promotion within it from one rarik to another aW
H · be ~d as promotion within the same cadre.
R.K. SABHARWAL v. STATE OF PB. 41

(2) Promotions shall be made by selection on the basis of merit A
and suitability in all respe~ and no member of the Service shall
have any claim to such promotion as a matter of right or mere
seniority.

(3) A member of the Service shall not be eligible for promotion
to the rank of - B
(a) Executive Engineer unless he has rendered five years service
as an Assistant Executive Engineer;

Provided that an officer who has rendered six years or more service
as an Assistant Executive Engineer shall unless he is considered C
i unsuitable for promotion, be given preference for such promotion
I over an eligible Class II Officer;

(b) Superintending Engineer, unless he has rendered seven years
service as an Executive Engineer; ·
-D
(c) Chief Engineer, unless he has rendered three years service as
Superintending Engineer;

Provided that, if it appears to be necessary to promote an officer
in public interest, the Government may, for reasons to be recorded E
in writing, either generally for a specified period or in any in-
dividual case reduce the period specified in clauses (a), (b) and
(c) to such extent as it may deem proper."

It is stated in the writ petition that the petitioners are at serial Nos. 19, 23,
26; 29, 30, 31, 34 and 38 of the seniority list of the Service whereas the p
respondents are at serial Nos. 46, 140 and 152. Respondent-Rattan Singh
was promoted to the rank of Chief Engineer against the psot reserved for
the Scheduled Castes by superseding 36 senior colleagues including the
petitioners. Similarly, respondents Surjit Singh and Om Parkash were
promoted as Superintending Engineers against the reserve vacancies ~y
superseding 82 and 87 senior colleagues respectively. According to the G
petitioners at the time of promotion of these respondents the petitioners
were already working as Superintending Engineers for several years. It is
further averred in the petition that respondents 4, 5 and 6 were in fact
working as Executive Engitieers when the petitioners were holding the post
of Superintending Engineers. H
,.
/

42 SUPREME COURT REPORTS (1995) 2 S.C.R.

A On the above facts the petitioners have challenged the reservation-
policy on several grounds but Mr. Harish Salve, learned counsel for the
petitioners, has confined the arg~ments to t~e following two points. /

(1) The object of reservation is to provide adequate representation
B to the Schedule Castes{fribes and Backward Classes in services and as
such any mechanism provided to achieve that end must have nexus to the
object sought to be .achieved. The precise argument is that for working out
the percentage of reservation the promotees/appointees belonging to the
Scheduled Castes and Backward Classes whether appointed against the
general category posts or against the reserve posts are to be counted. In
C other words i(more than 14% of the Scheduled Castes candidates are
appointed/promoted in a cadre on their own merit/seniority by competing
With the general category candidates then the purpose of reservation in the
said cadre having been achieved the Government instructions providing
reservations would become inoperative.
D
2. Once the posts earmarked for the Scheduled Castes{fribes and
Backward Classes on the roster are filled the reservation is complete.
Roster cannot operate any further and it should be stopped. Any post
falling vacant, in a cadre thereafter, is to be filled from the category -
E Feserve or general - due to retirement etc. of whose member the post fell
vacant.

Adverting to the first point Mr. Harish Salve and Mr. rRajiv Dhawan,.
learned counsel representing the petitioners, have contended that the total
number of promotees/appointees belonging to the reserve categories in a
F ,cadre are to be coUn.ted to work- out the prescribed percentage of reser-
vation. According to the learned counsel the reserve categories can take
advantage of the reservation made in their favour till their representation
in the Service - including those appointed against general category posts -'"7--
- reaches the prescribed percentage. For working out the percentage the
G promotees/appointees belonging to reserve categories in the Service,
whether on the reserve posts or general category posts, are to be counted.
-Support is sought from the judgment of the Punjab and Haryana High
Court in Joginder Singh Sethi and others v. Punjab Government and others,
(1982) 2 SLR 307. In· the said case 22% reservation was provided for ·the
H members of Scheduled Castes{fribes and Backward Classes. In the cadre ·
R.K. SABHARWAL v. STATE OF PB. 43

strength of 202 posts the Scheduled Castes candidates were entitled to 42 A
posts. There were already 47 members of the said category in the cadre
but out of them 10 were promoted on the basis of seniority-cum-merit
against the general category posts. There being only 37 persons who had
·been promoted against the reserved posts 4 more Scheduled Castes were
sought to be promoted against the reserve vacancies. The High Court B
quashed the promotion on the ground that the cadre was already having
more than 22% persons from the reserve categories. We are of the view
that the High Court in Joginder Singh Sethi's case fell into a patent error.
The said case was subsequently considered by a Full Bench of Punjab &
Haryana High Court in/aswant Singh v. Secretary to Government of Punjab, C
Education Department, (1989) 4 Services Law Reporter 257. The Full
Bench did not agree with the ratio in Joginder Singh Sethi's case and
reversed the same.

When a percentage of reservation is fixed in respect of a particular
cadre and the roster indicates the reserve points, it has to be taken that D
the posts shown at the reserve points are to be filled from amongst the
members of reserve categories and the candidates belonging to the general
category are not entitled to be considered for the .reserve posts. On the
other hand the reserve category candidates can compete for the non-
reserve posts and in the event of their appointment to the said posts their E
number cannot be added and taken into consideration for working out the
percenta~e of reservation. Article 16(4) of the Constitution of India permits
the State Government to make any provision for the reservation of appoint-
ments or posts in favour of any backward class of citizen which, in the
opinion of the State is not adequately represented in the Services under F
the State. It is, therefore, incumbent on the State Government to reach a
conclusion that the backward class/classes for which the reservation is
made is not adequately represented in the State Services. While doing so
the State Government may take the total population of a particular back-
ward class and its representation in the State Services. When the State G
Government after doing the necessary exercise makes the reservation and
provides the extent of percentage of posts to be reserved for the said
backward class then the percentage has to be followed strictly. The
prescribed percentage cannot be varied or charged simply because some
of the members of the backward Class have already been ap- H
44 SUPREME COURT REPORTS [1995) 2 S.C.R.

A pointed/promoted against the general seats. As mentioned abvoe the roster
point which is reserved for a backward clas~ has to be filled by way of
appointment/promotion of the member of the said class. No general
..__ -category candidate can be appointed against a slot in the roster which is
reserved for the backward class. The fact that considerable number of
B . members of a backward class have been appointed/promoted against
general seats in the State Services may be a rele;vant factor for the State
Government to review the question of continuing r~servation for the said
class but so long as the instructions/Rules providing certain percentage of ...,.
reservations for the backward classes are operative the same have to be
C followed. Despite any number of appointees/promotees belonging to the
backward classes against the general cateory posts the given percentage
has to be p~ovided in addition. We, therefore, see no force in the first
contention raised by the lear~ed counsel and reject the same.

We see considerable force in the second contention raised by the
D · learned counsel for the petitioners. The reservations provided unde~ the
impugned Government instructions are to be operated in accordance with
the roster to be maintained in each Department. The roster is implemented
in the form of running account from year to year. The purpose of "running
account" is to make sure that the Scheduled Castes/Schedule Tribes and
E Backward Classes get their percentage of reserved posts. The con~pt of
"running account" in the impugned instructions has to be so interpreted
that it does not result in excessive reservation. "16% of the posts ..... " are
reserved for members of the Scheduled Caste and Backward Classes. In a
lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30, 37, 44, 51,
F 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster
for the Scheduled Castes. Roster points 26 and 76 are reserved for the
members of Backward Classes. It is thus obvious that when recruitment to
a cadre starts then 14 posts earmarked in the roster are to be. filled from
amongst the members of the Scheduled Caste. To illustrate, first ·post in a
G cadre miist go to the Scheduled Caste and thereafter the said class is
entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total
number of posts in a cadre are filled by the operation of the roster then
the result envisaged by the impugned instructions is achieved. In other
words, in a cadre of 100 posts when the posts earmarked in the roster for
H the Scheduled Castes and the Back\vard Classes are filled the percentage
R.K. SABHARWAL v. STATE OF PB. 45

of reservation provided for the reserved categories is achieved. We see no A
justification to operate the roster thereafter. The "running account" is to
operate only till the quota provided under the impugned instructions is
reached and not thereafter. Once the prescribed percentage of posts is
filled the numerical test of adequacy is satisfied and thereafter the roster
does not survive. The percentage of reservation is the desired repre- B
sentation of the Backward Classes in the State services and is consistent
with the demographic estimate based on the proportion worked out in
relation to their population. The numerical quota of posts is not a shifting
boundary but represents a figure with due application of mind. Therefore,
the only way to assure equality of opportunity to the Backward Classes and
the general category is to permit the roster to operate till the time the C
respective appointees/promotees occupy the posts meant for them in the
roster. The operation of the roster and the "running account" must come
to an end thereafter. The vacancies arising in the cadre, after the initial
posts are filled, will pose no difficulty. As and when there is a vacancy
whether permanent or temporary in a particular post the same has to be D
filled from amongst the category to which the post belonged in the roster.
For example the Scheduled Caste persons holding the posts at Roster-
points 1, 7, 15 retire then these slots are to be filled from amongst the
persons belonging to the Scheduled Castes. Similarly, if the persons holding
the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled E
from among the general category. By following this procedure there shall
neither be short-fall nor excess in the percentage of reservation.

The expressions "posts" and "vacancies", often used in the executive
instructions providing for reservations, are rather problematical. The word
"post" means an appointment, job, office or employment. A position to F
which a person is appointed. "Vacancy'' means an unoccupied post or
office. The plain meaning of the two expressions make it clear that there
must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-
strength is always measured by the number of posts comprising the cadre.
Right to be considered for appointment can only be claimed in respect of G
a post in a cadre. As a consequence the percentage of reservation has to
be worked out in relation to the number of posts which form the cadre-
strength. The concept of 'vacancy' has no relevance in operating the H
percentage of reservation.
)
(

46 SUPREME COURT REPORTS [1995) 2 S.C.R.

A When all the roster-points in a cadre are filled the required percent-
age of reservation is achieved. Once the total cadre has full representation
of the Scheduled Castes(fribes and Backward Classes in accordance with
the reservation policy then the vacancies arising thereafter in the cadre are
to be filled from amongst the category of persons to whom the respective
B vacancies belong. Jeevan Reddy, .l. speaking for the majority in Indira
Sawhney v. Union of India, AIR {1993) SC 477, observed as under:-

"Take a unit/service/cadre comprising 1000 posts. The reservation
in favour of Scheduled Tribes, Scheduled Castes and Other Back-
ward Classes is 50% which means that out of the 1000 posts 500
c must be held by the members of these classes i.e. 270 by Other
Backward Classes, 150 by Scheduled Castes and 80 by Scheduled
Tribes. At a given point of time, let us say the number of members
.of OBCs in the unit/service/category is only 50, a shortfall of 22<).
Similarly the number of members of Scheduled Castes and
Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and
r·
D
75. It the entire service/cadre is taken as a unit and the backlog is
sought to be made up, then the open competition channel has to
be choked altogether for a number of years until the number of
members of all backward classes reaches 500 i.e., till the quota
meant for each of them is filled up. this may take quite a number
E of years because the number of vacancies arising each year are not
many. Meanwhile, the members of open competition category
would become age barred and ineligible. Equality of opportunity
in their case would become a mere mirage. It must be remembered
that the equality of opportunity guaranteed by clause (1) is to each
F individual citizen of the country while clause (4) contemplates
special provision being made in favour of socially disadvantaged
classes. Both must be balanced against each other. Neither should
be allowed to eclipse the other. For the above reason, we hold that
for the purpose of applying the rweof 50% a year should be taken
as the unit and not the entire strength of the cadre, service or the
G unit as the case may be" )--

The quoted observations clearly illustrate that the rule of 50% a year
/ · as --a unit, and not the entire strength of the cadre has been adopted to
p.rotect the rights of the general category under clause {1) of Article 16 of
; ·H the Constitution of India. These observations in Indra Sawhney's case are
R.K. SABHARWAL v. STATE OF PB. 47

only in relation to posts which are filled initially in a cadre. The operation A
of a roster, for filling the cadre-strength, by itself ensures that the reserva-
tion remains within the 50% limit. Indra Sawhney's case is not the authority
for the point that the roster survives after the cadre-strength is full and the
percentage of reservation is achieved.

A Division Bench of the Allahabad High Court in J.C. Malik and B
others v. Union of India and others, (1978) 1 SLR 844 interpreted Railway
Board's circular dated April 20, 1970 providing 15% reservations for the
Scheduled Castes. The High Court held that the percentage of reservation
is in respect of the appointment to the posts in a cadre. On the basis of
the material placed before the High Court it reached the conclusion that C
if the reservation is permitted in the vacancies after all the posts in a cadre
are filled then serious consequences would ensue and the general category
is likely to suffer. considerably. We see no infirmity in the view taken by the
High Court.
D
We may examine the likely result if the roster is permitted to operate
in respect of the vacancies arising after the total posts in a cadre are filled.
In a 100 point roster, 14 posts at various roster-points are filled from .
amongst the Scheduled Castes/Scheduled Tribes candidates, 2 posts are
filled from amongst the Backward Oasses and the remaining 84 posts are E
filled from amongst the general category. Suppose all the posts in a cadre
consisting of 100 posts are filled in accordance with the roster by December
31, 1994. Thereafter in the year 1995, 25 general category persons (out of
the 84) retire. Again in the year 1996, 25 more persons belonging to the
neral category retire. The position which would emerge would be that the
Scheduled Castes and Backward Classes.would claim 16% share out of the
F
50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts
the reserve categories would be holding 24 posts thereby increasing the
reservation from 16% to 24%. On the contrary if the roster is permitted to
operate till the total posts in a cadre are filled and thereafter the vacancies
falling in the cadre are to be filled by the same category of persons whose G
retimrement etc. caused the vacancies then the bctlance between the
reserve category and the general category shall always be maintained. We
make it clear that in the even of non- availability of a reserve candidate at
the roster-point it would be open to the State Government to carry forward
the point in a just and fair manner. H
/
48 SUPREME COURT REPORTS. [199$) 2 S.C.R.

A We, therefore, find considerable force in the second point raised.by
the learned counsel for the petitioners. We, however, direct that the
interpretation given by us to the working of the roster and our findings on
this point snail be operative prospectively.

. The writ petition is, therefore, disposed of in the above terms. No
B costs.
I.MA. Petition disposed of.