STATE OF HARYANA AND ORS.versusPREM SINGH AND ORS. ETC.

                       STATE OF HARYANA AND ORS.                                  A
                                       v.
                        PREM SINGH AND ORS. ETC.

                                 APRIL 5, 2000

            [S. SAGHIR AHMAD ANDS. RAJENDRA BABU, JJ.]                             B
        Service law-Appointment to lateral post by trO(l-Sfer-Benefit of reser-
  vation not given-Held : post held both before and after transfer are
  equivalent posts and both being class II posts, there was no promotion-No
  benefit of reservation either as scheduled caste or otherwise available under    C
  the rules.
       The appellants claimed benefit of reservation both as Scheduled
  Caste members and also as per the rules, by filing a writ petition, the
  High Court allowed. Hence this appeal is by the State.
        Allowing the appeal, this Court                                           ·n
         HELD: 1.1. Respondent No. 1 had worked for about two years on
  the equivalent post of Deputy Collector to which post he had been pro-
  moted on May 14, 1992 and, therefore, he cannot claim to be appointed as
  Tehsildar by transfer. Posts of Deputy Collector and Tehsildar are both
  Class Il posts and are equivalent posts. Deputy Collector is a post under        E
  the Irrigation Department, whereas, Tehsildar is a post under the Revenue
  Department in the State.
         Respondent No. 1 was promoted to the post of Deputy Collector and
  was granted regular promotion thereto and the Haryana Public Service
  Commission has also approved such promotion. The contention advanced             F
  on behalf of the first respondent that he held a post inferior to that of a
1 Tehsilda_r falls to the ground and, therefore, he cannot claim the benefit of
  promotion at all. It is also clear from the Recruitment Rules tltat the case
  of the respondent could not have been considered on any other basis.
  While respondent No. 1 had been promoted to the post of l;>eputy Collec-         G
  tor by an order made on April 21, 1992, the writ petition was filed on
  November 26, 1992. In the circumstances, he could not have made a claim
  to the post of Tehsildar at all. (1000-B-E]
        1.2. Even on the basis found by the High Court that the reservation
  policy was to apply in respect of transfer from a lower post to a higher         H
                                      997
    998                     SUPREME COURT REPORTS                 (2000] 2 S.C.R.
A   post inasmuch as respondent No. 1 held a post of Deputy Collector equiva-
    lent to that of Tehsildar which are both Class II posts be could not have
    claimed benefit of reservation in respect of Scheduled Castes. In this view
    of the matter, this Court has no hesitation in setting aside the order made
    by the High Court. (1000-E-F]

B          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6361 of 1994
    Etc.

         From the Judgment and Order dated 9.12.93 of the Punjab & Haryana
    High Court in C.W.P. No. 955 of 1993.

C         C.S. Vaidyanathan, Mukul Rohtagi, Additional Solicitor General, R.F.
    Nariman, AK. Srivastava, M.L. Ve1ma., Mahabir Singh, Manoj Swamp, Jasbir
    Malik, K.K. Mohan, Pradeep Gupta, Arvind Bansal, Puneet Agarwal, Atul
    Bandhu, N.S. Bisht, K.G. Bhagat, Vineet Bhagat, Kamal Baid, Debasis Misra,
    Pankaj Kalra, Ravindra Bana, Dr. Ratan Lal, Abbay Prakash Sahay, (Sant Lal
D   Pacher) in-person, B.K. Sharma, Prem Malhotra, Anil Mittal and Ms. Indu
    Malhotra for the appearing parties.

           The Judgment of the Court was delivered by

           RAJENDRA BABU, J.
E   CIVIL APPEAL NO. 6361 OF 1994

          A writ petition was filed before the High Court of Punjab & Haryana
    by the respondents. Facts, in brief, giving rise to this appeal are as follows:

           Respondent No. 1 was selected as Ziledar and after completion of
F   training was appointed in the Irrigation Department in January 1975. Under
    the relevant recruitment rules three sources were provided for appointment to
    the post of Tehsildar ('B' Class) - (i) 40% by direct recruitment, (ii) 40%
    by promotion, and (iii) 20% by transfer from amongst the following
    categories :-
G
             (i)   Superintendent of the office of the Deputy Commissioners;
             (ii) Assistant Superintendent of Commissioners' and Deputy Com
                  missioners' office;
             (iii) District Kanungoes;

H            (iv) Zonal Ziledars of P.W.D. (Irrigation Branch] OR
                    STATE v. PREM SINGH [RAJENDRA BABU, J.]                     999
             (v) Head Assistant of Director Land Records Office.                        A
           The Government on February 9, 1979 issued instructions wherein it was
    stated that the quantum of reservation would be to the extent of 20% for
    Scheduled Castes in the case of direct recruitment to Class I, II, III and IV
    posts. It was clarified that in all appointments by promotion 20% reservation
    will be granted in favour of the Scheduled Castes but such reservation would        B
    be limited to Class III and Class IV posts on the basis of seniority- cum-merit.
    It was expressly stated that in respect of appointments by promotion there will
    be no reservation in Class I and Class II posts. It was further clarified in the
    instructions issued on June 10, 1982 that if posts were filled by transfer to an
    identical time scale of pay, there would be no reservation but if a higher post     c
    was filled by transfer then the benefit of reservation would be given. Process
    of selection was announced to the post of Tehsildar ('B' Class) for appoint-
    meI)l by transfer in the year 1986. Eight persons were appointed in 1986, four
    in 1990 and six in 1992. In the recruitment made as per the rules in 1986 the
    benefit of reservation was not given to the post of Tehsildar which is a Class
    II post. Respondent No. 1 filed a writ petition claiming his right to appoint-      D
    ment on the ground that he is a senior Ziledar and also on the basis of
    reservation. The High Court made an order on the basis that reservation was
    available in the case of appointment by transfer to Class II post. The High



-   Court did not consider the fact that even assuming that reservation had to be
    granted in this category, the claim of all the Scheduled Castes candidates in
    the five posts from which the recruitment was to be made by transfer. This
    order is in challenge before us in this appeal.

           The first respondent contended that he is entitled to the post in question
                                                                                        E




    not only on the basis of reservation in favour of a Scheduled Caste candidate
    but also that he is being appointed by way of transfer from a lower scale of        F
    Ziledar in the Inigation Department to a different department, that is, Revenue
    Department to the post of Tehsildar. The instructions issued by the Govern-
    ment would not be applicable and on the other hand he would be entitled to
    such appointment. A bar, if any, is implied and that the instructions are
    applicable to each and every Schedule Caste candidate wherever transfer is          G
    made to an equivalent post and for purpose of getting the benefit of the
    reserved post by way of transfer it must be from a post carrying lower pay
    scale to another post in any department carrying a higher pay scale. On that
    basis it is contended that the view taken by the High Court is in order.

          We have carefully examined tl1e facts arising in the case. The facts          H
    1000                     SUPREME COURT REPORTS                  [2000] 2 S.C.R.
A   available on record clearly disclose that Ziledar is a Class III post and
    Tehsildar and Deputy Collector are Class II posts. The posts of Clerk,
    Assistant and Assistant Superintendent are Class III posts, while the post of
    Superintendent, Deputy Collector and Tehsildar are Class II posts. Respond-
    ent No. 1 had worked for about two years on the equivalent post of Deputy
    Collector to which post he had been promoted on May 14, 1992 and,
B
    therefore, he cannot claim to be appointed as Tehsildar by transfer. Posts of
    Deputy Collector and Tehsildar are both Class II posts and are equivalent
    posts. Deputy Collector is a post under the Irrigation Department, whereas
    Tehsildar is under the Revenue Department in the State. It is also made clear
    by the affidavit of Bhagwan Dass Bishnoi,. Tehsildar, Narnaul (Haryana) that
c   respondent No. 1 was promoted to the post of Deputy Collector and was
    granted regular promotion thereto and the Haryana Public Service Commis-
    sion has also approved such promotion by an order made on May 14, 1992.
    The contention advanced on behalf of the first respondent that he held a post
    inferior to that of a Tehsildar falls to ground and, therefore, he cannot claim
D   the benefit of promotion at all. It is also clear from the Recruitment Rules that
    the case of the respondent could not have been considered on any other basis.
    While respondent No. 1 had been promoted to the post of Deputy Collector
    by an order made on April 21, 1992, the writ petition was filed on November
    26, 1992. In the circumstances, he could not have made a claim to the post
    of Tehsildar at all. Even on the basis found by the High Court that the
E   reservation policy was to apply in respect of transfer from a lower post to a
    higher post inasmuch as respondent No. 1 held a post of Deputy Collector
    equivalent to that of Tehsildar which are both Class II posts he could not have
    claimed benefit of reservation in respect of Scheduled Castes. In this view of
    the matter, we have no hesitation in setting aside the order made by the High
F   Court and dismiss the writ petition filed by the respondent. The appeal stands
    allowed accordingly. However, there shall be no orders as to costs.

    CIVIL APPEAL NO. 6362 OF 1994

          In the light of the order made by us in CIVIL APPEAL NO. 6361 of              -.,
G   1994, this appeal has become unnecessary and, consequently it stands dis-
    missed.

    l.M.A.                                             Appeals allowed/dismissed.