Kan Singh, J.
1. This is a writ petition under Article 226 of the Constitution filed by one Sudama Prashad, who was officiating as Chief Clerk in the scale at Rs. 335-425 in the Western Railway at the relevant time, against an order of his reversion to the lower rank passed by the General Manager, Western Railway on 6-4-64 (Ex. 5 on the record), and the consequent order passed by the Divisional Superintendent, Kota, (Ex-9 on the record).
2. There is no dispute on facts and they are briefly set out as follows:
3. The petitioner entered the Railway service in the Traffic Department as a clerk sometime in the year 1937, and after various promotions, with which we are not concerned, he came to be appointed as a Head Clerk, Commercial Branch, in the grade of Rs. 210-380 with effect from 1-8-56. and was posted In the office of the Divisional Superintendent, Western Railway, Kota. The Railway authorities had drawn up a panel of suitable persons in the cadre to which the petitioner belonged for consideration of further promotion to the cadre of Chief Clerk grade II in the scale of Rs. 335-425, on the basis of a departmental examination. In the panel so drawn up, the petitioner was assigned position at No. 1, on the basis of merit and Shankar Lal respondent No. 3, who was also holding a position equivalent to that of the petitioner was placed at No. 2.
There are several branchs in the Railway, such as Mechanical Branch, Operating Branch etc., but it appears that the posts of Chief Clerks working in several branches constitute one cadre and are transferable. Sometime in September, 1962, the post of Chief Clerk in the Mechanical Branch fell temporarily vacant on account of its incumbent Mehnga Ram getting an officiating chance as Office Superintendent which was a post higher than that of a Chief Clerk, Sudama Prashad, who was on the improved paned, was posed as Chief Clerk against that vacancy. Similarly, Shankar Lal, who was also a Head Clark in the scale of Rs. 210-380 in the Operating Branch, was promoted to officiate as Chief Clerk in the Operating Branch in the Grade of Rs. 335-425, as a vacancy became available on account of the upgrading of a post there. These officiating arrangements were ordered by a common order Ex-2 (dated 15-9-62) on the record.
About 11 months thereafter, as Mehngaram reverted to the post of Chief Clerk, Mechanical Branch the petitioner had to be assigned some other post, but as he was senior to Shankar Lal respondent No. 3, he was transferred as Chief Clerk, Operating Branch, and Shankerlal was reverted to his substantive post of Head Clerk and posted to the Commercial Branch in the office of the Divisional Superintendent, Kota, vide orders of the Divisional Superintendent dated 30-8-63 (Ex-4 on the record).
Upto this stage there was no trouble. On 6-11-63, respondent No. 3 Shanker Lal obtained a certificate from Additional District Magistrate, Kanpur, to the effect that he belonged to the 'Khateek' community which was recognised as a scheduled caste and armed with that certificate he made a representation to the authorities that as being the member of a scheduled caste, he was entitled to be appointed against the post of Chief Clerk in preference to the petitioner who was not a member of the scheduled caste, according to the roster for reservation for scheduled castes. The Railway authorities considered the matter and eventually the General Manager issued the order Ex-5, directing the Divisional Superintendent to revert the petitioner to the post of Head Clerk and appoint respondent No. 3 Shanker Lal in his place. The Divisional Superintendent in his turn passed an order on 4-5-64 giving effect to the direction of the General Manager. The petitioner made representations against the order of his reversion, but getting no relief he has filed the present petition.
4. According to the petitioner, as there was only one vacancy available and against it the petitioner was working, the same could not be treated as reserved for a scheduled caste candidate in accordance with a recent pronouncement of the Supreme Court in T. Devadasan v. Union of India, AIR 1964 SC 179. The petitioner contends that his reversion on the grounds mentioned in the impugned order results in denial of equal opportunity of employment to the petitioner as guaranteed by Article 16 of the Constitution. Reliance is also placed on Article 311 of the Constitution, Stress is also laid on the fact that at the time the petitioner was promoted as Chief Clerk in September, 1962, Shanker Lal did not come forward with any claim of his being a scheduled caste member, nor had he produced any certificate to that effect and consequently the subsequent claim should not be countenanced for dislodging him from the post he was lawfully occupying.
8. The writ petition has been opposed by the respondents. It was stated on their behalf that the impugned orders have been passed in pursuance of or on the analogy of an administrative policy based upon the provisions of the Constitution vouchsafing special treatment to members of scheduled castes. It was further submitted that on 15-9-62, there were two vacancies and reservation could properly be claimed by respondent No. 3 in respect of one of the two posts. As the order reverting Shankerlal was erroneous the administration corrected that error by passing the impugned orders and such orders, according to the respondents, could neither violate Article 16, nor Article 311 of the Constitution. It is also stressed that officiating chance on a higher post given to an incumbent does not create a right in his favour, nor does it affect his seniority, with the result that the present writ petition was not maintainable.
6. The above narration reveals that the question that emerges for consideration is whether the impugned order Ex-5 is violative of the provisions of Article 16 or Article 311 of the Constitution. It will be convenient for us to reproduce the order Ex-5. The other order Ex-9, being only a consequential one, need not be reproduced.
'The case of Shri Shankerlal D. Head Clerk of your office has been examined. It is observed that Shri Shankerlal D. a scheduled caste employee was available for posting of Chief Clerk scale Rs. 335-425 though your office was not possibly aware that he belonged to scheduled caste. He may, therefore, be put on to officiate as Chief Clerk scale Rs. 335-425(A) reverting the employee belonging to the unreserved community.'
7. We were not impressed by the arguments of the petitioner's learned counsel that any violation of Article 311 of the Constitution is involved in the case. Article 311 is attracted only against those orders as are passed by way of punishment in the form of dismissal, removal or reduction in rank, It cannot he argued with cogency that the impugned order, extracted above, was passed by way of penalty. The learned counsel himself did not seriously press this point at the end. This aspect of the matter, therefore, should not detain us any longer and we proceed to deal with the applicability of Article 16 of the Constitution to the facts and circumstances of the case.
8. Article 16 of the Constitution has come up for consideration recently in some of the cases both before the High Courts and the Supreme Court.
9. In Pandurang Kashinath More v. Union of India, AIR 1959 Bom 134 the learned Judges held that the Article ensures equality of treatment in all matters relating to employment. The words of the Article are wide enough to ensure equality of treatment both at the stage of initial appointment and during the continuance and subsequent stages of that employment including the stage of termination of the employment. According to the learned Judges, the protection of Article 16 is available both in case of permanent as well as temporary appointments. The following passage will serve to bring out the essentials of the reasoning of the learned Judges;
'Article 16 in terms clear and ample speaks of all 'matters relating to employment' and it is impossible to accede to the suggestion that what is contemplated by Article 16 is only the initial stage when the citizen is employed to serve the State. All along during the continuance of the engagement or office, he is assured of that equality of opportunity, and the same principle must govern the case when the appointment or employment is sought to be terminated.
Article 16 is in plain general terms and there is no reason or necessity [or subtracting temporary services from the operation of that article. The guarantee extends to every citizen and every employment or appointment whether permanent or temporary. It is essentially a question not of the nature or tenure of the engagement but of the basic guarantee of equable treatment assured by the Constitution. If the termination of service was on grounds extraneous, the order of termination would be without competence and jurisdiction and order must be treated as if it had not been made at all.'
10. The decision of the Bombay High Court was approved by their Lordships of the Supreme Court in General Manager, Southern Rly. v. Rangachari, AIR 1962 SC 36, According to the Supreme Court, Article 16(1) and (2) gives effect to the equality before the law guaranteed by Article 14. Articles 14, 15 and 16 which form part of the constitutional code of guarantees supplement each other. From this postulate their Lordships held that the matter relating to employment must include all matters in relation to employment both prior and subsequent to the employment which are incidental to the employment and form part of the terms and conditions of such employment. The following observations of their Lordships may be read with advantage:
'Article 16(2) prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of opportunity guaranteed by Article 16(1). The words 'in respect of any employment' used in Article 16(3) must, therefore, include all matters relating to employment as specified in Article 16(1). Therefore, promotion to selection posts is included both under Article 16(1) and (2).'
11. The bearing of Article 16 on the facts of the present case has particularly to be examined for me purposes of Clause (4) thereof and for facility of reference. Article 16 is reproduced below:
'Article 16--Equality of opportunity in matters of public employment. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office (under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory) prior to such employment or appointment.
4. Nothing in this article shall prevent the State from making 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.
5. Nothing in this article shall affect (sic) operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.'
In enacting Clause (4) of Article 16, analogous to Sub-clause (4) in Article 15 of the Constitution, the paramount consideration of the founding fathers was to give some fillip to the backward sections of the Indian society who were left behind in the march of progress compared to better placed sections of the society on account of historical reasons. While on the one hand, the creed of equality was adopted, a reasonable concession was also given to the backward classes in the matter of getting employments by providing them with some reservations so that, they could catch up with the rest of the population and as a result of the encouragement given, the backward sections of the community could eventually come at par with the rest of the people in general. In interpreting the rule of equality enshrined in Article 16, their Lordships have fully recognised the principle of equality of treatment to all citizens though, at the same time they have recognised an important exception to it to the extent reasonable safeguards are provided by the State for the advancement of the backward sections of the community. One cannot do better than quote the dicta of their Lordships in this behalf: AIR 1964 SC 179.
'The guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to ho filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly Or to disturb unduly the legitimate claims of other communities.'
Clause (4) of Article 16 is by way or a proviso or an exception to Clause (1). A proviso or an exception cannot be so interpreted as to nullify or destroy the main provision. To hold that unlimited reservation of appointments could be made under Clause (4) would in effect affect the guarantee contained in Clause (1) or at best make it illusory. No provision of the Constitution or of any enactment can be so construed as to destroy another provision contemporaneously enacted therein. It is true that effect must be given to the express words of Article 16(4): 'Nothing in this Article shall prevent the State from making any provision for the reservation of appointments ........ etc.,' but that does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the Article, particularly Clause (1) and (8) thereof. The overriding effect of Clause (4) on Clauses (1) and (2) could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all.
Under Article 16(4), it is clear that reservation of a reasonable percentage of posts for members of the Scheduled Castes and Tribes is within the competence of the State. What the percentage Ought to be must necessarily depend upon the circumstances obtaining from time to time.'
12. In State of Madhya Pradesh v. Peer Mohammed, AIR 1963 SC 645 the applicability of Article 15(4) came up for consideration and the observations were almost to the same effect.
13. In the present case, in the panel approved for promotion, the petitioner's name appeared above that of the respondent No. 3, and normally he was entitled to a preferential treatment in the matter of promotion to a higher post. Both of them were promoted in officiating capacity to the post of Grief Clerk by a common order (Ex. 2 on the record) on 15-9-62. While the petitioner was retained on the post, the respondent No. 3 was reverted to the post of Head Clerk on 30-8-66, by order Ex. 4.
It was for the first time that the respondent No. 8 obtained a certificate on 6-11-03 to the effect that be was a member of the scheduled caste and filed a representation before the Railway authorities to revert the petitioner to afford an opportunity to him on account of his being a member of scheduled caste. The General Manager then went into the matter and passed the order Ex.5, extracted above in the earlier part of the judgment. That order is a speaking order. It mentions that the authorities were possibly not aware that the respondent No. 3 was a member of the scheduled caste. It was, therefore, desired by the General Manager that the Divisional Superintendent should revert the petitioner and appoint respondent No. 3, to officiate as Chief Clerk.
It has been emphasised by their Lordships of the Supreme Court in Devadasan's case, AIR 1964 SC 179 (vide the passage cited above) that equality of treatment is the rule and Clause (4) of Article 16 is an exception to that rule and it cannot be so interpreted as to nullify or destroy the main provision. In the facts of the present matter the question is, whether the intention of the framers of the Constitution was that in order to ensure protection or to guarantee favourable treatment to members of the scheduled caste should persons already appointed be reverted to make room for them. This, to our mind, could not have been intended.
Preferential treatment to members of the scheduled castes or tribes was meant to be given at the time of making appointments or promotions, but it could not possibly be the intention that to create an opportunity for a member of the scheduled caste or tribe another non-schedule caste employee who was once given an opportunity lawfully should be made to climb down to make a post in the higher cadre available for a member of the scheduled caste or tribe. That, to our mind will be giving unwarranted extention to the scope of the exception so as to erode the main rule of equality enshrined in Articles 16(1) and 16(2) of the Constitution. It is remarkable that the respondent No. 8 had never asserted at the time the promotions were made, or even when his reversion was ordered that the authorities knew that he was a member of the scheduled caste. The certificate has been obtained by respondent No. 3, sufficiently long time after his reversion. That certificate, to our mind, could not be utilised for the purposes of creating a fresh opportunity for respondent No. 6.
14. What Article 16(4) contemplates is the giving of preferential treatment to members of the scheduled castes or tribes in matters of employment, but it cannot lend support to the contention that this Article could be utilised for demoting another person who has once been lawfully appointed. We have not been shown that the promotion of the petitioner, in September, 1962, suffered from any vice. Nor has it been shown that the authorities were in error when they retained the petitioner as Chief Clerk even after the reversion of Mehnga Ram, Reversion of respondent No. 3 by order dated 3-8-63, Ex. 4 was in the normal course. He being at No. 2 in comparison to the petitioner, who was at No. 1, it would not be unusual to revert him first when no post in the cadre in which be was officiating was available. Article 16(4) cannot be utilised to undo the appointment lawfully made in the context of circumstances existing at the time of the appointment.
We do not find any substance in the contention advanced for the respondents that the impunged orders have been passed in pursuance of or on analogy of an administrative policy based upon the provisions of the Constitutions safeguarding special treatment in cases of scheduled caste employees. Equally untenable is the submission that on 15-9-62, there were really two vacancies. One vacancy was of a permanent nature as that was created on account of the upgrading of one of the available posts in the department Another vacancy was a temporary one and was no longer available as soon as the incumbent of the post namely, Mehnga Ram reverted to that post.
Thus, in August, 1963, when the matter of reversion was considered and dealt with there was only one vacancy available and normally that could be available for the senior man on the approved panel namely, the petitioner. Till then, as observed by us earlier, there was nothing to show that the authorities knew that respondent No. 3 was a member of the scheduled caste. Protection has to be given within reasonable limits to members of the Scheduled castes and when there was nothing to show at the time that the authorities knew that respondent No. 8 was a member of the scheduled caste, or, that he had otherwise made a claim to that effect, non-giving of weightage to him could not possibly make the appointment of the petitioner or his subsequent retention on the post of Chief Clerk to be against the provision of any law.
As the order passed by the General Manager is a speaking one and gives only one reason for the reversion of the petitioner namely, that the respondent No. 8, was a member of the scheduled caste, we can legitimately infer that there was no other ground for ordering the reversion of the petitioner. Article 16(4), as observed by us, could not be resorted to to nullify orders properly made in the context of circumstances obtaining at the time. Consequently we come to the conclusion that orders Ex. 5 and Ex. 9 are not legal in that they deny an opportunity of equal treatment to the petitioner within the meaning of Articles 16(1) & 16(2) of the Constitution.
15. In the result we allow this writ petitionwith costs and hereby set aside the orders of theGeneral Manager dated 6-4-64 (Ex. 5) and that ofthe Divisional Superintendent, Kota, dated 4-5-64(Ex. 9).