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Arundhuti Mondal Vs. Kolkata Municipal Corporation and Ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantArundhuti Mondal
RespondentKolkata Municipal Corporation and Ors.
Excerpt:
in the high court at calcutta constitutional writ jurisdiction original side before: hon’ble mr.justice harish tandon w.p.253 of2017arundhuti mondal -vskolkata municipal corporation & ors.mr.soumya majumdar, mr.victor chatterjee..for the petitioner. c.a.v.on: 18.09.2017 mr.alok ghosh, mr.arijit dey..for kmc judgment on: 22.09.2017 the court: the petitioner has challenged provisional gradation list dated march 22, 2017 on mere apprehension and she can be thrown out of zone of consideration for promotional post even if it is for reserved category. the challenge is basically thrown on the plea that there should be a separate gradation list for a general category, schedule caste and schedule tribe category and the other reserved categories and all such reserved category candidate should not.....
Judgment:

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE BEFORE: HON’BLE Mr.JUSTICE HARISH TANDON W.P.253 OF2017ARUNDHUTI MONDAL -VSKOLKATA MUNICIPAL CORPORATION & ORS.Mr.Soumya Majumdar, Mr.Victor Chatterjee..for the Petitioner.

C.A.V.On: 18.09.2017 Mr.Alok Ghosh, Mr.Arijit Dey..for KMC Judgment On: 22.09.2017 The Court: The Petitioner has challenged provisional gradation list dated March 22, 2017 on mere apprehension and she can be thrown out of zone of consideration for promotional post even if it is for reserved category.

The challenge is basically thrown on the plea that there should be a separate gradation list for a general category, Schedule Caste and Schedule Tribe category and the other reserved categories and all such reserved category candidate should not be put into a single gradation list.

The facts emanate from the respective pleadings of the parties are that an advertisement was made in the year 2012 by the Municipal Service Commission to fill up 10 vacancies occurred in the post of Assistant Analyst in the Kolkata Municipal Corporation.

The said advertisement envisaged, apart from the other, that three vacancies are reserved for Schedule Caste and Schedule Tribe candidates.

The Petitioner applied as a Schedule Caste candidate and was adjudged as successful candidate, which would be evident from the panel prepared by the said Commission and the name of the Petitioner was at Serial No.10 therein.

The letter of appointment dated January 27, 2014 was issued to the Petitioner indicating that the said appointment is provisional and temporary depending upon the satisfying performance.

Undisputedly, the Petitioner was made permanent on 16.11.2016 to the said post and still continuing in service.

One Dipak Pramanik, Deputy Analyst (Chemistry) attained superannuation on February 28, 2017 having promoted to such post on 27.05.2011.

It is not in dispute that the said superannuated employee was promoted to the said post reserved for the Schedule Castes and Schedule Tribes as per 50 point roster as the deserving candidate under the aforesaid category was not found.

According to the Petitioner, such vacant promotional post cannot thereafter be filled by the general category candidates as the vacancy, which arose in the year 2011 is required to be carried forward and can only be filled by the Schedule Caste candidates.

Subsequently, a provisional gradation list for the post of Assistant Analyst cadre is published on March 22, 2017 and the Petitioner finds her name at Serial No.8 therein.

The solitary grievance of the Petitioner is that in terms of Rule 10 of the West Bengal Schedule Castes and Schedule Tribes (Reservation of Vacancies in Service and Post) Act, 1976, the zone of consideration is five times the number of the promotional vacancies actually available at the time of consideration and the Petitioner having placed at Serial No.8 in the single / combined gradation list shall not be eligible to offer her candidature to the promotional post reserved for the Schedule Caste category.

The Petitioner, thus, contends that the Kolkata Municipal Corporation must prepare and maintain a separate gradation list for general category, Schedule Caste and Schedule Tribe categories so as to bring the reserved category candidates within the normal zone of promotion.

On the other hand, the Corporation contends that the gradation / seniority list is prepared as per the extent regulation of seniority published on 23.04.1984 and there is no provision under the said regulations to prepare a separate list based upon the caste of the candidates i.e.the Schedule Caste and Schedule Tribe.

It is, further contended that Rule 10 of the West Bengal Schedule Castes and Schedule Tribes (Reservation of Vacancies in Service and Post) Act, 1976, expressly provides the selection against the vacancies reserved for Schedule Castes and Schedule Tribes to be made among those Schedule Caste and Schedule Tribe employees who fall within the normal zone of consideration.

The normal zone of consideration in respect of promotion to any particular post or posts means and includes the candidates appointed in descending order of seniority, five times the number of vacancy or vacancies actually available for filling up by promotion at the time of consideration.

It is, thus, stated that the single gradation list / seniority list has been prepared in terms of the extent regulations and the Petitioner has been rightly placed in the 8th position as a Schedule Caste candidate.

Both the Counsels appearing for the respective parties are uniformly relying upon the various judgments of the Supreme Court and sought to give their independent interpretation to justify their contentions raised in the instant Writ Petition.

Before I proceed to deal with some of the judgments which have a relevancy in the perspective of the core issue involved in the instant Writ Petition, it would be apposite to quote certain provisions of the Rules and Regulations issued in this regard.

Both the counsels are relying upon Rule 10 of the West Bengal Schedule Castes and Schedule Tribes (Reservation of Vacancies in Service and Post) Act, 1976, which was amended from time to time.

The amended Rule 10, which stands now are— “10.

While filling up vacancies reserved for Scheduled Castes and Scheduled Tribes by promotion, the following procedure shall be followed, namely:(a) Selection against vacancies reserved for Scheduled Caste and Scheduled Tribe employees who fall within the normal zone of consideration.

*Explanation.—Normal zone of consideration in respect of promotion to any particular post or posts shall consist of such of the employees eligible for promotion to such post or posts according to the prevailing recruitment rules or procedure as occupy, when arranged in descending order of the seniority, five times the number of vacancy or vacancies actually available for filling up by promotion at the time of consideration.”; (b) If candidates from Scheduled Castes and Scheduled Tribes obtain on the basis of merit with due regard to seniority, on the same basis as other candidates, less number of vacancies that that reserved for them, the difference shall be made up by selecting candidates irrespective of merit but who are considered fir for promotion: “Provided that for the purpose of fitness, all Scheduled Caste and Scheduled Tribe employees who are within the normal zone of consideration for promotion to higher posts shall be given one grading higher than the grading assigned to them on the basis of their record of service excepting in those cases where the highest grading has been assigned on the basis of record of service.” (c) In the absence of qualified Scheduled Caste or Scheduled Tribe candidate against a particular reserved vacancy, the reserved vacancy shall be carried forward till the next reserved vacancy occurs in the fifty-point roster but not beyond.

(d) While vacancies reserved for Scheduled Castes and Scheduled Tribes will continue to be reserved for the respective community only, a Scheduled Caste employee may also be considered for appointment against a vacancy reserved for Scheduled Tribes, or vice-versa, where the appropriate reserved vacancy could not be filled by a Scheduled Tribe or a Scheduled Caste candidate, as the case may be.” The explanation appended to Clause (a) of the said Rule was interpreted by the various authorities creating an anomalous situation and thereafter the Government of West Bengal thought it fit to clarify and assign the correct interpretation by issuing a Memorandum dated 6th March, 1981.

In the said Memorandum, it is categorically observed that the correct interpretation of the said amendment in relation to zone of consideration is five times the total number of promotional vacancies actually available at the time of consideration with the illustration as under:- “2.

The correct interpretation of this amendment is that the “zone of consideration” is five times the total number of promotional vacancies actually available at the time of consideration.

For example, let us suppose that there are eight vacancies at the time of consideration (i.e.at the time the appointing authority or the selection committee is considering the candidates for promotion, or at the time the vacancies are being reported to the Public Service Commission).It should be borne in mind that all the vacancies that are actually available will have to b considered reported simultaneously.

It will not be correct to consider report only some of these available vacancies holding back the remaining vacancies for future consideration reporting.

Let us also assume that the aforesaid eight vacancies occupy the 7th to the 14th place in the 20 point roster.

That would mean that these eight vacancies include two reserved vacancies – one for Scheduled Tribe candidates (8th in the roster) and one for Scheduled Caste candidates (13th in the roster).Therefore, according to the aforesaid rule 10 as it now stands, the zone of consideration will consist of 8 x 5= 40 candidates i.e.the fiRs.forty persons in the gradation list.” The Personnel Department of Kolkata Municipal Corporation by virtue of Circulation 13 of 1984-85 dated 23rd April, 1984 framed a Regulation regarding determination of seniority of the officers and employees namely Calcutta Municipal Corporation (Determination of Seniority) Regulation, 1984.

Rule 4 of the Regulations, 1984 provides the manner of determining the seniority of the direct recruits as under:- “Determination of Seniority of direct recruits: The relative seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determined by the order of merit in which they are selected for such appointment on the recommendation of Commission or other selecting authority, persons appointed on the results of an earlier selection being senior to those appointed on the results of a subsequent selection; Provided that where appointments of persons initially made otherwise than in accordance with the relevant recruitment regulations or in the absence of any prescribed recruitment regulations are subsequently regularised in consultation with the Commission, where necessary, seniority of such persons shall be determined from the very date of appointment.

Provided further that if any person selected for appointment to any post does not join within 2 (two) months of the offer of appoint his seniority shall count from the date on which he joins the post unless the appointing authority for reasons to be recorded in writing condones the delay at the time of joining.

Note:

1) A list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority when will be recruitment in a single processor of selection of more than one person.

2) Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these regulations, seniority shall, on the coming into force of these regulations, determined on the basis of actual date of their joining.

Then the date of joining of all such persons is the same, the seniority is to be determined on the basis of a date of birth, persons retiring early being adjudged as senior.

Then the date of birth is the same, seniority shall be determined on the basis of total marks obtained by each in the examination, passing of which is the academic qualification prescribed in R/R for recruitment to the particular post, cadre or pay-scale / grade.

3) In so far as the determination of relative seniority of persons selected either by the Commission or by selecting authority for appointment to different posts in the same pay-scale with different qualifications such as Assistant Engineers in Civil, Mechanical and determined from the date of joining.” From the conjoined reading of the aforesaid provisions, it is manifest that the seniority is determined of all such persons appointed directly through competitive examinations in the order of merit in which they are selected for such appointment.

In view of Rules, 1976 in the event any vacancy arises which is reserved for the Schedule Caste and Schedule Tribe, in the promotional post, the selection against the said vacancy shall be made amongst the person holding the feeder post and belonging to such category provided, they fall within the normal zone of consideration.

Normal zone of consideration has been explained in the said Rule imbibing within its contour the employees eligible for such promotion in descending order of seniority, five times the number of vacancy or vacancies actually available for filling up the promotional post at the time of consideration.

The said Rule further provides that the regard should be had on the basis of the merit in relation to seniority and in absence of qualified Schedule Caste and Schedule Tribe candidates against the said reserved vacancy it would be carried forward till the next reserved vacancy occurs as per five point roster.

Clause (d) of Rule 10 expressly postulates that where the vacancy is reserved for Schedule Caste or Schedule Tribe it would continue to be reserved for the respective community only and the reserved category employed may be considered for appointment against the vacancy reserved for such category if the same could not be filled by the reserved category candidate.

The Petitioner is apprehensive having placed at Serial No.8 of the combined grade / seniority list because of the 50 point roster to be followed under normal zone of consideration.

The sense has developed in the mind of the Petitioner that the candidates who belong to a general category and placed above her in the gradation / seniority list would be brought within the zone of consideration for filling up the promotional post meant for reserved category.

In case of R.K.Sabharwal & ORS.–versus State of Punjab & ORS.reported in (1995) 2 SCC745the challenge was made to reservation policy of the State of Punjab before the Constitution Bench on two fold grounds, firstly, that the object of reservation to provide adequate representation of the reserved category clauses in service would be defeated and the requisite percentage would not be achieved if the reserved category candidates are competing with the general category candidates; and, secondly, if the post is earmarked for the Schedule Caste / Schedule Tribe and other backward classes are filled, it would achieve the object and purpose for reservation.

While determining the same, the Constitutional Bench held:- “4.

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 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 reserved 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 number cannot be added and taken into consideration for working out the percentage of reservation.

Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under 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 Backward Class and its representation in the State Services.

When the State 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 changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats.

As mentioned above the roster point which is reserved for a Backward Class 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 members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation 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 followed.

Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.

We, therefore, see no force in the fiRs.contention raised by the learned counsel and reject the same.” It is further observed therein that once the total cadre has full representation of the Schedule Castes/ Schedule Tribes and the backward classes as per the reservation policy, any vacancies arising thereafter in the cadre are to be filled from amongst the category of person to whom the respective vacancies belong.

The Constitutional Bench ultimately held that the balance between the general and the reserved category should always be maintained in filling up the posts and illustratively held:“10.

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 100point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are 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 31-12-1994.

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 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 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 retirement etc.caused the vacancies then the balance between the reserve category and the general category shall always be maintained.

We make it clear that in the event 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.” Another Constitutional Bench in case of M.

Nagaraj & ORS.–VsUnion of India & ORS.reported in (2006) 8 SCC212succinctly considered the purpose and object of the reservation policy introduced by inserting Article 16(4A) by the 85th Amendment of the Constitution when the challenge was thrown on its vires having stated to operate retrospectively.

The said Constitution Bench noticed the earlier Constitution Bench decision rendered in R.K.Sabharwal (Supra) and approved the replacing theory in the following:“96.

The Constitution (Eighty-fiRs.Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R.K.Sabharwal [(1995) 2 SCC745: 1995 SCC (L&S) 548 : (1995) 29 ATC481 .

Once it is held that each point in the roster indicates a post which on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies does not arise.

Therefore, in effect, Article 16(4-B) grants legislative assent to the judgment in R.K.Sabharwal [(1995) 2 SCC745: 1995 SCC (L&S) 548 : (1995) 29 ATC481 .

If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory [Ed.: For the “replacement theory”, see R.K.Sabharwal case, (1995) 2 SCC745 in general, and para 118, below.].and within the limitations indicated hereinafter.” The carry forward theory was also accepted and reiterated in the said decision with the following observations:“116.

As stated above, Article 14 enables classification.

A classification must be founded on intelligible differentia which distinguishes those that are grouped together from otheRs.The differentia must have a rational relation to the object sought to be achieved by the law under challenge.

In Indra Sawhney [1992 Supp (3) SCC217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC385 an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to the making of classification.

Article 16(4-B) is also an enabling provision.

It seeks to make classification on the basis of the differentia between current vacancies and carry-forward vacancies.

In the case of Article 16(4-B) we must keep in mind that following the judgment in R.K.Sabharwal [(1995) 2 SCC745: 1995 SCC (L&S) 548 : (1995) 29 ATC481 , the concept of post-based roster is introduced.

Consequently, specific slots for OBCs, SCs and STs as well as GC have to be maintained in the roster.

For want of a candidate in a particular category the post may remain unfilled.

Nonetheless, that slot has to be filled only by the specified category [Ed.: It would seem that this is the “replacement theory”.].Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand.

Article 16(4-B) is a direct consequence of the judgment of this Court in R.K.Sabharwal [(1995) 2 SCC745: 1995 SCC (L&S) 548 : (1995) 29 ATC481 by which the concept of post-based roster is introduced.

Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged.

Therefore, in our view Articles 16(4).16(4-A) and 16(4-B) together form part of the same scheme.

As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court in Indra Sawhney [1992 Supp (3) SCC217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC385 and R.K.Sabharwal [(1995) 2 SCC745: 1995 SCC (L&S) 548 : (1995) 29 ATC481 .

They have nexus with Articles 17 and 46 of the Constitution.

Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B).The impugned constitutional amendments, therefore, do not obliterate equality.” While upholding constitutionality of the Article 16(4A) and 16(4B).it is conclusively held:“122.

We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

123. However, in this case, as stated above, the main issue concerns the “extent of reservation”.

In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.

As stated above, the impugned provision is an enabling provision.

The State is not bound to make reservation for SCs/STs in matters of promotions.

However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335.

It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-fiRs.Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.” The judgment rendered by the Constitutional Bench in case of M.

Nagaraj (Supra) is summed up in a recent decision rendered by the Supreme Court in case of B.K.Pavitra & ORS.–versus Union of India & ORS.reported in (2017) 4 SCC620in these words:“25.

Reference was then made to the Constitution amendment enabling reservation in promotions and consequential seniority which was upheld in M.

Nagaraj [M.

Nagaraj v.

Union of India, (2006) 8 SCC212: (2007) 1 SCC (L&S) 1013].The said judgment was summarised as follows: (U.P.Power Corpn.

LTD.case [U.P.Power Corpn.

Ltd.v.Rajesh Kumar, (2012) 7 SCC1: (2012) 2 SCC (L&S) 289]., SCC pp.

36-37, para

81) “81.

From the aforesaid decision in M.

Nagaraj case [M.

Nagaraj v.

Union of India, (2006) 8 SCC212: (2007) 1 SCC (L&S) 1013].and the paragraphs we have quoted hereinabove, the following principles can be carved out: (i) Vesting of the power by an enabling provision may be constitutionally valid and yet “exercise of power” by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.

(ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society.

They should be harmonised because they are restatements of the principle of equality under Article 14.

(iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.

(iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service.

The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated.

Further, roster has to be post-specific and not vacancy based.

(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation.

Clause (4-A) of Article 16 is an enabling provision.

It gives freedom to the State to provide for reservation in matters of promotion.

Clause (4-A) of Article 16 applies only to SCs and STs.

The said clause is carved out of Article 16(4-A).Therefore, clause (4-A) will be governed by the two compelling reasons—“backwardness” and “inadequacy of representation”, as mentioned in Article 16(4).If the said two reasons do not exist, then the enabling provision cannot be enforced.

(vi) If the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335.

If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration.

Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact situation.

(vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.

(viii) The constitutional limitation under Article 335 is relaxed and not obliterated.

As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate.

This exercise, however, will depend on the facts of each case.

(ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured.

That exercise depends on the availability of data.

That exercise depends on numerous factORS.It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals.

How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.

(x) Article 16(4).therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment.

These are compelling reasons.

They do not exist in Article 16(1).It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.” The complete answer can be had from a Co-ordinate Bench decision from the Subal Sakha Mondal & ORS.–versus The State of West Bengal & ORS.reported in 1996 (1) CLJ170in the following:“It is really not understandable as to how a person who became a lower division clerk on 6.2.81, could be promoted to the higher post although he did not complete at least three years of service before 1.4.81.

The petitioneRs.admittedly, joined the service as lower division clerks immediately after Shri Somnath Saha.

Even in the case of Somnath Saha, the promotion policy of the State was not attracted nor could he be promoted with effect from 1.4.81.

be that as it may, this Court is not concerned with the promotion of Shri Somnath Saha, but the said fact is being mentioned only for the purpose of showing that if a person who entered into service on 6.2.81, could be considered for promotion, it does not stand to any reason how the petitioners who had been appointed on 22.5.81, 6.12.82 and 2.11.81 and thus put in about 14-15 years of service, could not be considered for promotion despite the fact that they belong to reserved category.

As indicated hereinbefore while considering the matter relating to the grant of promotion, to reserved category candidates, the cases of general candidates must be excluded.

The zone of consideration, in that view of the matter, should be considered and thus considered, it must mean that while following the rule of zone of consideration, the question of consideration of the general candidate while filling up the posts for reserved category candidates are ruled on.

The zone of consideration only confines to those persons who belong to the reserved category candidates.” What can be gathered from the enunciation of law in the above report that every State or the Union has to maintain the constitutional obligation in keeping the percentage of reservation so that there would be an adequate representation of the unprivileged class of person for their upliftment.

The entire cadre strength should be taken into account to determine whether the reservation up to its required limit has been achieved.

While preparing the roster one thing should be ensured that the reservation would remain within the ceiling limit and each post should be earmarked in the category of the cadre and the subsequent vacancy to be filled by that category of candidate alone.

Even a carry forward theory cannot be applied to exceed the ceiling limit and if the vacancy arises for a particular category, it can only be filled by the candidates of such category from the single grade / seniority list.

In the instant case Rule 10 of the Rules 1976 is clear and explicit that the selection against the vacancies reserved for Schedule Castes and Schedule Tribes shall be made from among those Schedule Caste and Schedule Tribe employees falling within the normal zone of consideration.

There is an express indication that such vacancy should be filled with such category of the employees and the inclusion of the other category is ruled out.

The normal zone of consideration explained in the said Rule is to be read ejusdum generis with the purpose and object and any narrow or strict interpretation would whittle out such object.

The expression “employees eligible for promotion” appearing in the explanation appended to the said Rule should be read in the perspective of the enabling provision providing the selection against the vacancy amongst those Schedule Caste and Schedule Tribe employees.

If the eligibility is enshrined therein, it implies the exclusion of other categories of employees.

The explanation in descending order of seniority should be meant and restricted amongst the employees under the Schedule Caste an Schedule Tribe categories and the misconception appearing in the mind of the Petitioner does not appear to be correct and legal.

The idea underlying the tenet of Regulation, 1984 in determining the seniority amongst the direct recruits would be totally frustrated if separate seniority list on category wise are prepared.

The seniority within the class is maintained in the order of merit in terms of the Rule 4 thereof.

There is no hesitation in my mind that if the promotional post is to be filled by the reserved category, the normal zone of consideration would be amongst those category of employees as it cannot be filled with other category except in case where no deserving candidates are found.

This Court, therefore, does not find that the preparation of a single grade or seniority list affects any right conferred upon the Petitioner nor it brings the Petitioner out of the zone of consideration.

The Writ Petitioner is, thus, dismissed.

However, there shall be no order as to costs.

Upon appropriate application(s) being made, urgent photostat certified copy of this judgment, may be given expeditiously subject to the usual terms and conditions.

(Harish Tandon, J.)


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