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

- **Citation:** [1999] Supp. 2 S.C.R. 521
- **Court:** Supreme Court of India
- **Decided:** 1999-09-16
- **Case number:** I.A. Nos. 1-3 In Civil Appeal Nos. 3792-94of1989
- **Bench:** Dr. A.S. Anand, K. Venkataswami, G.B. Pattanaik S.P. Kurdukar, M. Jagannadha Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajit-singh-and-ors-v-the-state-of-punjab-and-ors-16844
- **Pages:** 41

## Headnote

Service Law :
A
B
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 of seniority-cum-merit-Claim for seniority on the basis of continuous
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 refixedHowever, 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.
Constitution of India, 1950:
Articles 16(1), 16(4) and l 6(4A)-Reservation in promotion-Right to
F
· 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.
B
Articles 16( 4), 16( 4A) and 33 5-Reservation in promotionMaintenance of efficiency in administration-Necessity of
Reservation in promotion-Promotions made in excess of roster pointE.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
F
the reserved candidates under Articles 16(4) and 16(4A) were fundamental
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 seniorit

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..
AJIT SINGH AND ORS.
v.
THE STATE OF PUNJAB AND ORS.
SEPTEMBER 16, 1999
[DR. A.S. ANAND, C.J., K. VENKATASWAMI, G.B. PATTANAIK
S.P. KURDUKAR AND M. JAGANNADHA RAO, JJ.]
Service Law :
A
B
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 of seniority-cum-merit-Claim for seniority on the basis of continuous
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 refixedHowever, 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.
Constitution of India, 1950:
Articles 16(1), 16(4) and l 6(4A)-Reservation in promotion-Right to
F
· 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.
B
Articles 16( 4), 16( 4A) and 33 5-Reservation in promotionMaintenance of efficiency in administration-Necessity of
Reservation in promotion-Promotions made in excess of roster pointE.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
F
the reserved candidates under Articles 16(4) and 16(4A) were fundamental
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 of Haryana, [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.
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.
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.
D
E
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
F
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]
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.
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.
F
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 of Punjab) [ 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 of India 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 of Haryana, (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 of India 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.
c
The Contentions in brief
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
. ..
-
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AJIT SINGH v. STATE [M . .TAGANNADHA RAO, J.]
531
was a vacancy generated at the points already filled, fresh candidates from A
the reserved candidates could not be promoted by further operation of the
roster. Having so held, the Court said that the judgment would be
"prospective". The reserved candidates now contend that the above direction
means that not only the reserved candidates so promoted in excess of the
roster points could not be reverted but that their seniority against such 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.
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.
F
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
532
SUPREME COURT REPORTS [1999] SUPP. 2 S.C:R.
A
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?
B
(2)
Have Virpal, Ajit Singh been correctly decided and has Jagdish
Lal been correctly decided?
(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:
H
"Article 16(1)-Equality of appointment in matters of public
employment-There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the
State.
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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.
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,
F
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.
F
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).
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
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
F
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
A
B
c
D
536
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
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
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
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
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 ..... ".