Suresh Chander Sharma, J.
1. Harbans Singh the petitioner in this writ petition, is employed in the Railway Protection Force (RPF). After his selection for the post of Sub Inspector Gr. II he joined for initial training on 1st April, 1965 and after completion of the training he was appointed as Sub Inspector Gr. II in the Armed Wing Branch by the order of the Chief Security Officer dated 30th April, 1966. He was promoted as Sub-Inspector Gr. I with effect from 11th March, 1974 by the order of the Chief Security Officer, Western Railway, Bombay dated 29th November, 1975. The next post higher to the post of Sub-Inspector Gr. I is that of Inspector Gr. III. The promotion to the aforesaid post is made on the basis of seniority-cum-suitability by a Selection Board. The Selection Board was constituted in 1975 to draw the panel of Sub-Inspectors Grades I and II who were suitable for promotion as Inspector Grade II to fill up 17 vacancies of Inspectors Grade III. Out of these 17 vacancies 4 were reserved for Scheduled Castes and 1 was reserved for Scheduled Tribes. The Selection Board met on January 20, 30 and 31, 1976 and on the basis of the recommendations of the Selection Board the panel of Sub-Inspectors who had been selected for promotion as Inspector Gr. II were notified by the Chief Security Officer in May 6/10, 1976. The petitioner was amongst persons who had appeared before the Selection Board but his name was not included in the said penal. On 5th April 1978 the Chief Security Officer Western Railway, notified that it was proposed to convene the Selection Board to draw the panel of Sub-Inspectors Gr. II in the Executive Branch, Fire Service Branch and Prosecution Branch suitable for promotion as Inspectors Grade II. It was also notified that in the Executive Branch the selection would be convened for filling up Six posts of Inspectors out of which three posts were reserved for Scheduled Castes, one post was reserved for Scheduled Tribes and two posts were vacant for general community. The lists of Sub-Inspectors who were eligible to appear for selection in the respective Branches were also circulated. In the list of Sub-Inspectors of the Executive Branch the names of 24 Sub-Inspectors were included. hut the name of the petitioner was not included. The petitioner thereupon filed this writ petition. In the writ petition, the petitioner has challenged the Selection made by the Selection Board which met on January 29, 30 and 31, 1976 and the panel (Annex. 5) dated May 6/10, 1976 prepared by the said selection Board. The petitioner has also prayed that the notification (Annex. 6) dated 15th April, 1978, with regard to selection fixed on 19th May, 1978 for the post of Inspector Gr. II be quashed.
2. As regards the panel (Ex. 5) dated May 6/10, 1976 which was prepared by the Selection Board which met on January 29, 30 and 31, 1976, the case of the petitioner is that the said selection was made in violation of Regulation 5 of Chapter XII of the Railway Protection Force Regulations 1966 (here in after referred to as 'the Regulations') which prescribes the mode for assessment of the merit of the candidates for the purpose of promotion to the post of Inspector Gr. III. The case of the petitioner is further that in the said panel 25 candidates from general community, 5 candidates from Scheduled Castes and 3 candidates from Scheduled Tribes have been selected which is in excess of the total number of vacancies that were notified. The petitioner has submitted that by the selection of 33 candidates i.e. 16 candidates in excess of notified vacancies, the petitioner was deprived of his future chances of selection.
3. With regard to the selection which was notified by notification dated 15th April, 1978, the case of the petitioner is that the sanctioned strength of the posts of Inspectors Gr. II and Inspectors Grade III after the merger of the two cadres of Inspector Gr. II and III was 68 and that 10 persons belonging to Scheduled Castes were already working as Inspector Grade II and 6 persons belonging to Scheduled Tribes were already working as Inspector Grade II. The petitioner has submitted that under the circulars of the Railway Board, dated 27th August, 1968 and 20th April, 1970, the reservation for Scheduled Castes in the whole cadre has to be 15% and that for the Scheduled Tribes has to be 7-1/2% in the cadre and that in view of the aforesaid circulars the representation of the Scheduled Tribes in the cadre was more than 7-1/2% and no posts could be reserved for Scheduled Tribes and that in so far as the Scheduled Castes were concerned, only one post could be reserved for Scheduled Castes to maintain their 15% quota in the cadre. The petitioner has submitted that if the reservation for Scheduled Castes was confirmed to one post and no reservation was made for Scheduled Tribes, 5 posts would have been available for general community and 24 candidates belonging to the general community would have been eligible on the basis of seniority and the petitioner would have been among the persons who would have been called for selection.
4. The writ petition has been contested by the Railway Administration and a reply has been filed on their behalf. In the said reply it has been submitted that in so far as the challenge to the selection made in 1976 is concerned, the petitioner is guilty of laches in as much as he is seeking to challenge the selection which had been finalised more than two years before the filing of the writ petition. It has also been submitted that the aforesaid selection was made in accordance with the Regulations and that there is nothing in the Regulations to restrict the number of persons who could be put on the panel and that the election and placing on the panel of 33 persons although 17 vacancies were notified is not violative of the Regulations. In the said reply it has also been stated that Regulation 5 of Chapter XII of the Regulations has been amended by the Railway Board and that out of total 100 marks 50 marks are allotted for professional ability which includes written test for which 30 marks are reserved and oral test on professional knowledge for which 20 marks are reserved. Out of the remaining 50 marks 20 marks are reserved for personality leadership and academical qualifications, 15 marks were for record of service and the remaining 15 marks for seniority. In the reply it has been submitted that the assessment of merit was made in accordance with the aforesaid instructions. As regards, the selection which was to be made on the basis of the notification dated 15th April, 1978 and the reservation of vacancies for Scheduled Castes and Scheduled Tribes, it has been submitted in the said reply that the restriction for Scheduled Castes and Scheduled Tribes is done not on the basis of the total strength but on the basis of the 40 point communal roster prescribed by the Railway Board vide their letter dated 29th April, 1978 and that under the said 40 point communal roster certain specific points have been reserved either for Scheduled Castes or Scheduled Tribes and wherever that point occurs the same is required to be filled in by the candidates belonging to the respective community and in pursuance of the said instructions one post had to be reserved for Scheduled Castes and Scheduled Tribes and since there was an existing deficiency of two posts of Scheduled Castes, three posts were reserved for Scheduled Castes and one post was reserved for Scheduled tribes out of the six vacancies.
5. I will first deal with the challenge to the selection that was made by the Board in 1976 and the panel (Annex. 5) dated May 6/10, 1976. In this regard it may be mentioned that even though the said panel was notified in May, 1976, the petitioner did not take any steps to challenge the said selection till 3rd May, 1978 when he filed this writ petition. There is thus, a delay of two years in the filing of the writ petition in so far as the challenge to the said selection is concerned. In the writ petition, the petitioner had stated that Shri K.K. Goyal, M.P. had placed the view point of the petitioner among other before the Railway Minister regarding the aforesaid selection and that several Sub-Inspectors had also filed representations to the higher authorities but without any results and that Shri V.C. Verma Sub-Inspector (RPF) had also addressed a telegraphic notice demanding justice to the General Manager, Western Railway but nothing was done in the matter. The particulars about 1 he aforesaid representations have, however, not been mentioned in the writ petition. In my opinion, there is no plausible explanation for this inordinate delay in the filing of the writ petition in so far as the challenge to the panel (Annex. 5) dated May 6/10, 1976 is concerned.
6. Even on the merits the petitioner has not been able to make out a case for striking down the said selection. The principal argument that was advanced by Shri Pathak, the learned counsel for the petitioner, to challenge the aforesaid selection was that under Regulation 5 of Chapter XII of the Regulations 25 marks have been prescribed for personality address, leadership & academic, technical qualifications & 25 marks have been prescribed for record of service but in making the impugned selection, the Board allotted 20 marks for personality, leaderships and academic qualifications, 15 marks for record of service and 15 marks for seniority which was in contravention of Regulation 5, Shri Pathak has submitted that the letter of the Railway Board dated 29th June, 1973 (Annex. R-l) to the reply, is only an administrative order and it does not have the effect of amending Regulations of Chapter XII of the Regulations and on the basis of the said letter it was not permissible for the Selection Board to depart from the marking system laid down in Regulation 5. Ji is no doubt, true that the letter (Annex. R-l) dated 29th June, 1973 of the Railway Board is in the nature of administrative instructions and it could not have the effect of amending Regulation 5 of Chapter XII of the Regulations because the Regulations are statutory in nature having been framed in exercise of the powers conferred under Rule 33 of the Railway Protection Force Rules, 1959. The said letter (Annex. R-l) also stated that an amendment of the relevant provision of the Regulations would be issued in due course. The amendment in Regulation 5 in pursuance of the aforesaid letter (Annex. R-l) dated 29th June, 1973 has not been brought to my notice and it is not possible to say as to whether regulation 5 of the Chapter XII of the Regulations had been amended in accordance with the directions contained in the letter (Annexure R. 1) dated 29th June, 1973 before the impugned selection. But even if it be assumed that Regulation 5 remained unamended on the date of impugned selection a perusal of the said Regulation shows that the system of marking laid down in Regulation 5 was only for the guidance of the Departmental Selection Committee and the same cannot be held to be mandatory as to preclude the Selection Board from departing from the said system. Clause (i) of Regulation 5 provided as under:
(i) Promotion to the posts of Inspectors Grade III shall be made by the Chief Security Officer of each Railway. For this purpose, a departmental selection committee consisting of the Chief Security Officer of the Railway concerned and two other Chief Security Officers to be nominated by the Inspector General shall be constituted on the request of the Chief Security Officer of the Railway on whcich the selection is to be made. This Selection Committe will examine the service records and confidential reports of the eligible Sub-Inspectors and will hold a written and viva-voce test. Selection shall be made primarily on the basis of over all merit, but for the guidance of departmental selection committee, the factors to be taken into account and their relative weight are laid down below: Maximum Marks Qualifying Marks Prounfessional ability 50 30Personality, address leadership and academic 25 -technical qualifications Record of Service 25 -
Note 1: The item 'Record of Service' should also take into consideration 'Seniority' of the employees but no separate allotment of marks need be made on this account.
Note 2: Candidates must obtain a minimum of marks in professional ability and 60% marks on the aggregate for being placed on the panel.
Professional ability will be assessed by holding a practical test, in addition to a written one, for selection upto the rank of Sub-Inspector. The practical test will be in the out-door duties such as IT, PT and WT. For this purpose 50 marks will be divided into 30 for written and 20 for practical test.
7. In the aforesaid clause it is clearly laid clown that the selection shall be made primarily on the basis of overall merit and that the factors to be taken into account and marks that have been laid down 5 were only for the guidance of the Departmental Selection Committee. The said system of marks laid down in clause (i) of Regulation 5 cannot, therefore, be held to be mandatory in nature and was only directory in nature and it was open to the Selection Committee to depart from it and adopt another formula for assessment of over all merits. If the marking system as laid down in clause (i) of Regulation 5 and the marking system followed by the Selection Committee are compared it will be noticed that in addition to the factors mentioned in Clause (i) of Regulation 5 the Selection Committee has also taken into account seniority and has allotted 15 marks for it by reducing the marks reserved for personality address, leadership and academic technical qualifications from 25 to 20 and the marks reserved for Record of Service from 25 to 15. Under Clause (i) of Regulation 5 seniority was to be taken into consideration while considering the record of ser- vice for which 25 marks were allotted.Under the marking system followed by the Selection Committee 30 marks were, allotted for Record of Service and sentiority. This means that under the marking system followed by the Selection Committee the combined marks allotted for Record of Service and Seniority were increased by 5 marks and the marks allotted for personality, address, leadership and academic technical qualification were reduced by 5 marks. In my view this departure from the marking system laid down in clause (i) of Regulation 5 is not of such a magnitude as to vitiate the selection. Moreover in the reply filed on behalf of the Railway Administration it is stated that in proforma for allotment of marks where staff of two grades are made to appear for the selection has been prescribed by the Railway Administration and the same is applied to all the candidates. This shows that the system of marking that has been followed by the Selection Committee is being applied uniformly to all the candidates. The petitioner can therefore, have no cause for grievance. In these circumstances. I am of the opinion that the impugned selection of the persons mentioned in the panel dated 6/10, 1976 does not suffer from any legal infirmity. The contentions that have been urged by Shri Pathak to challenge the said selection are therefore, rejected.
8. I may now take up the challenge to the selection made in pursuance of the circular (Annex. 6) dated 16th April, 1978. The said selection has been challenged on the ground that it has been made in violation of the circulars of the Railway Board dated 27th August, 1968 and 20th April, 1970 which make provision for reservation of posts for employees belonging to Scheduled Castes and Scheduled Tribes. The submission of Shri Palhak was that under the said circulars provision has been made for reservation of 15% of the posts in the whole cadre for Scheduled Castes and 7-1/2% of the posts in the whole cadre for Scheduled Tribes. It has been pointed out that the total strength of the Cadre of Inspectors Grade II was 68 and on the basis of the reservation of 15% of the post only 10 posts could be reserved for persons belonging to Scheduled Castes and on the basis of reservation of 7-1/2% posts 5 posts could be reserved for persons belonging to Scheduled Tribes. It has been submitted that 10 selected candidates belonging to Scheduled Castes were already working as Inspector Gr. II, and 6 selected candidates belonging to Scheduled Tribes were already working as Inspector Gr. II and that only vacancy could be reserved for persons belonging to Scheduled Castes and no vacancy could be reserved for persons belonging to Scheduled Tribes. Shri Pathak has, therefore, submitted that out of the 6 vacancies which were notified by the circular dated 15th April, 1978 only one post could be reserved for Scheduled Castes and the remaining 5 posts should have been kept for the general Community. In support of his aforesaid submission Shri Pathak has placed reliance on the unreported decision of a Division Bench of the Allahabad High Court in J.C Malik and Ors. v. Union of India and Ors. Civil Misc. Writ No. 1809/1972 decided on 9th December, 1977.
9. Shri Bapna, the learned counsel for the Railway Administration, has on the other hand, submitted that the circular dated 15th April, 1978, rightly provides for reservation of three posts for Scheduled Castes and one post for Scheduled Tribes and two posts for general community and that it has been done in accordance with the 40 point roster that has been prescribed by the Railway Board under circular dated 20th April, 1970. Shri Bapna has submitted that in accordance with the said roster the reservation of 15% posts for Scheduled Castes and 7-1/2% posts for Scheduled Tribes has to be done by taking into account all the posts in the service and the said reservation is not to be determined on the basis of total number of posts in a particular cadre. Shri Bapna has also pointed out that the 40 point roster has been upheld by the Supreme Court in Akhil Bharatiya Soshit Karmchari Sangh v. Union of India : (1981)ILLJ209SC .
10. In my view, the aforesaid contention urged by Shri Bapna must be accepted. With great respect to the learned Judges who decided J.C. Malik and Ors v. Union of India and Ors. (supra), I am unable to agree with the view expressed in the said judgment. In J.C. Malik and Ors. v. Union of India and Ors. (supra), the Allahabab High Court was dealing with promotion to the post of Guards Gr. 'A' Persons who were working as Guards Gr.'C' were promoted as Guards grade 'A' against the post reserved for Scheduled Caste candidates and the said selection was challenged by persons who were working as Guards Gr. 'B' and Guards Gr.'C' on the ground that the posts against which the Scheduled Caste candidates were selected were wrongly reserved for them. The Allahabad High Court accepted the said contention & set aside the said promotion of the Scheduled Caste candidates. In that context, the learned Judges have held that under the circular of the Railway Board dt. 20th April 1970, the reservation of 15%of posts for Scheduled Castes has been made for appointment to the posts and not to the vacancies occurring in the posts from time to time. The learned Judges have pointed out that if it was held that the percentage of reservation relates to the vacancies and not to the posts serious consequences would ensue which would certainly result in discrimination against the employees not belonging to Scheduled Castes in as much as if 15% of the vacancies occurring in a particular year are filled by promotion of Scheduled Castes, the result would be that after some time the percentage of Scheduled Castes candi-date in the 'A' Grade would reach upto 60% which obviously be to the detri-merit of other persons who may be senior or meritorious but who cannot be promoted on account of reservation made in favour of Scheduled Castes.
11. It is true that the reservation of 15% for Scheduled Castes and 7-1/2% for Scheduled Tribes has been made in the posts and services. But for purpose of determining the number of posts that are available for Scheduled Castes candidates and Scheduled Tribes candidates at a particular time, the vacancies which occur from time to time have to be made the basis for such a determination.
12. The provision for reservation in public employment for persons belonging to Scheduled Castes and Scheduled Tribes are contained in clause (4) of Article 16 read with Article 335 of the Constitution. Clause (4) of Article 16 lays down that nonthing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any back-ward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Article 335 prescribes that the claims of the number of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in making of appointments to services and posts in connection with the affairs of the Union or of a State.
13. After the coming into force of the Constitution of India, the Government of India, vide Resolution dated 13th September, 1950 issued the first policy statement on the issue of better representation of Scheduled Castes and Scheduled Tribes in Government service. In the said resolution the Government has taken note of the policy of communal representation in the services before the Constitution and the Constitutional ban on discrimination by way of reservation on the ground of Caste. In the case of Scheduled Castes and Scheduled Tribes and it was declared that pending the determination of the figures of population at the census of 1951 the Government had decided that the existing reservation of 12-1/2% of vacancies filled by direct recruitment in favour of Scheduled Castes will continue in the case of recruitment of posts and services made, on an All India basis by open competition and where recruitment was made otherwise than by open competition the reservation for Scheduled Castes would be 16-2/3% as present at that time. As regards Scheduled Tribes it was declared that the reservation in their favour would be 5% of the vacancies filled by direct recruitment.
14. It was found that sufficient number of qualified candidates from among the Scheduled Castes and Scheduled Tribes were not available. The Government of India, therefore, issued supplementary instructions on 28th January, 1954, whereby it was directed that if a sufficient number of candidates of the Communities for whom reservations are made are not available the vacancies that remain unfilled will be reserved in the following year for the communities whose vacancies are thus filled up in addition to such number as would ordinarily be reserved for them under the order contained in the Resolution. This provision for carrying forward of vacancies of a particular year to the next succeeding year was further modified by Office Memorandum dated 7th May, 1955 of the Government of India whereby the vacancies of a particular year could be carried forward for next two succeeding year. By circular of the Railway Board dated 20th April, 1970 the Carry Forward Rule referred to above was extended and the vacancies can be carried forward for next three succeeding years.
15. By circular of the Railway Board dated 27th April, 1959 the prescribed quota of reservation was made applicable to Selection posts to which promotion was made a positive act of selection.
16. By circular of the Railway Board dated 20th April, 1970 the reservations prescribed by the Resolution dated 13th September, 1950 for Scheduled Castes and Scheduled Tribes were modified in the light of the population of these communities in the 1961 census and it was decided that the reservation for Scheduled Castes may be raised from 12-1/2% to 15% and the reservation for Scheduled tribes be raised from 5% to 7-1/2%. In order to give effect to this circular the roster was also revised by the Railway Board by its letter dated April 29, 1970. Under the revised 40 point roster posts at point Nos. 1, 8, 14, 22, 28 and 36 are reserved for Scheduled Caste candidates and posts at point Nos. 4, 17 and 31 are reserved for Scheduled Tribes candidates.
17. By its direction dated llth January, 1973 the Railway Board decided that a quota of 15% and 7-1/2% for Scheduled Castes and Scheduled Tribes respectively may also be provided in promotion to the categories and posts in class I, II, III and IV filed on the basis of seniority-cum-suitability provided the element of direct recruitment to those grades, if any, does not exceed 50%.
18. The validity of the circular of the Railway Board dated 27th April, 1959 whereby the prescribed quota of reservation was made applicable to promotion to selection came up for consideration before the Supreme Court in General Manager, Southern Railway v. Rangachari AIR 1962 SC 44. The said circular was upheld by the Supreme Court. In that case, Gajendragadkar, J., as he then was, speaking for the majority, has observed as under:
26. The condition precedent for the exercise of the powers conferred by Article 16(4) is that the State ought to be satisfied that any backward class of citizens is in adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services bat that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression 'adequately represented' imports considerations of 'size' as well as 'values', numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operations of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward class in any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such post may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively. If it is conceded that 'posts in the context refer to posts in the services and that selection posts may be reserved but should be filled only in the manner suggested by the respondent then we see no reason for holding that the reservation of selection posts cannot be implemented by promoting suitable members of backward class of citizens to such posts as the circulars intend to do.
19. In State of Kerala v. N.M. Thomas 1976 (2) SCC 309, decided by Special Bench of Seven Judges, the question which arose for consideration was whether promotion of Scheduled Castes members against 34 out of 51 vacancies of Lower Division Clerks in the Registration Department of the State of Kerala was excessive. The Kerala High Court had held that the said promotion was excessive and exhorbitant. The Supreme Court, by majority reversed the said decision of the Kerala High Court. Ray, C.J. has observed as under:
42. The High Court was wrong in basing its conclusion that the result of application of the impeached rule and the orders is excessive and exorbitant namely that out of 51 posts, 34 were given to the members of the Scheduled Castes and Scheduled Tribes. The promotions made in the services as a whole are no where near 50% of the total number of posts. The Scheduled Castes and Scheduled Tribes constitute 10% of the State's population. Their share in the gazetted services of the State is said to be 2% namely 184 out of 8,780. Their share in the non-gazetted appointment is only 7% namely 11,437 out of 1,62,714.
20. Fazal Ali, J., while rejecting the contention that there was no material on record to show that the members of the Scheduled Castes and Scheduled Tribes were not adequately represented in the services of the State, has observed that:
190. So far as this is concerned it was suggested by Mr. Krishna-moorthy Iyer appearing for the respondent No. 1 that there is no material on the record to show that the promotees were not adequately represented in the services under the State and the Government had not issued any notification declaring this fact. It, however, appears that this point was not canvassed before the High Court at all. Never the less the appellants have produced before us sufficient material to show that the members of the Scheduled Castes and the Scheduled Tribes were not adequately and properly represented in the services under the State and particularly in the Registration Department with which we are dealing in the appeal. It is clear from Annexure 'A' of the Appeal Paper Book that there were as many as 2254 non-gazetted employees in the Registration Department out of which members of the scheduled castes and tribes are only 198. It has also been stated in the counter-affidavit before the High Court that the members of the scheduled castes and tribes form about 8% of the population of the State of Kerala. This, therefore, clearly shows that the promotees were inadequately represented in the service under the State and, therefore, they fulfil the second condition required by Clause (4) of Article 16.
21. Fazal Ali, J., also rejected the contention that the reservation of 43 posts out of 81 vacancies for the Scheduled Castes was excessive.
22. The validity of the circulars dated 27th April, 1959, 20th April, 1970, revised roster dated 27th April, 1970 and the Directive of the Railway Board dated llth January, 1973 was challenged before the Supreme Court in Akhil Bharatiya Soshit Karmachari Sangh v. Union of India (supra). The contention that was urged before the Supreme Court on behalf of the petitioners was that the reservation compounded by the carry forward rule has ended up almost in cent-percent reservation for Scheduled Caste and Scheduled Tribe candidates wholly excluding others from job opportunities. In reply to the aforesaid contention it was submitted on behalf of the Railway Administration that normally only 15% and 7-1/2% of vacancies by names of a roster mechanism are reserved for Scheduled Castes and Scheduled Tribes respectively through in some cases it may look as if 100% of the available vacancies are being to Schedules Castes/Scheduled Tribes. The stand of the Union Government before the Supreme Court was that 'once the Government have decided after reviewing the overall position or representation of Scheduled Castes/Scheduled Tribes in Government Service that the reservation principles should continue in certain types of appointments the reservation of certain number of vacancies for the Scheduled Castes/Scheduled Tribes, out of total available vacancies have to be provided, irrespective of whether Scheduled Castes/Scheduled Tribes are already duly represented or not in specific cadres of the services. The Union Government placed before the Supreme Court, the relevant figures showing the representation of the Scheduled Castes and Scheduled Tribes in the various Railway Services, Krishna Iyer, J. who delivered the leading judgment, has referred to those figures and has pointed out that as in 1978. the Scheduled Caste had in Class I around 7% representation in Class II 9.5% in Class III 11.1% and even in Class IV (excluding Safaiwalals) only 18%. The learned Judge has also observed that Safaiwalas who are manials like scavengers and sweepers, are mostly drawn from Harijans since other communities consider such jobs infra dig and for that reason there is 83% representation of Scheduled Castes among Safaiwalas and this was so not because of representation but because no one else is forth coming for such untouchable jobs. As regards the Scheduled Tribes the learned judge has observed that they have a more pathetic tale to tell and that in Class I Services they have 1 % representations in Class II 1.8% in Class III 2.2% and in Class IV (excluding Safaiwalas) 5.1% and even among Safaiwalas only 1.5%. The learned Judge has held that these official figures called from the reports of the Commissioner for Scheduled Castes and Scheduled Tribes reveal that a square deal to the Scheduled Casts and Scheduled Tribes may take centuries, observing the current snail pace in the talk.
23. The learned Judge upheld the circulars of the Railway Board dated 27th April, 1959 and llth January, 1973 making provision for reservation against selection and non-selection posts filled by promotion on the basis of the decision in General Manager Southern Railway v. Rangachari (supra). The circular dated 20th April, 1970 which increased the reservation to 15% for Scheduled Castes and 7.5% for Scheduled Tribes and extended the carry forward rule to three years has been upheld with the reservation that the Railway Board shall take care to issue instructions to see that in no year shall Scheduled Castes and Scheduled Tribes candidates be actually appointed to substantially more than 50% of the promotional posts and that some excess will not affect mathematical precision is difficult in human affairs, but substantial excess will void the solution. The revised 40 point roster dated 27th April, 1970 was upheld with observation that 'implementation of reservations necessarily involves practical steps like evolving a roster system' and that once the parameters of reservation are within the frame-work of the fundamental rights, minute scrutiny of every administrative measure and hunting for unconstitutionally is not permissible'.
24. Chinnappa Reddy, J. while expressing his concurrence with the judgment of Krishna Iyer, J, has observed:
The report of the Commissioner for Scheduled Castes and Scheduled Tribes for 1977-78 & the Reports on progress made in the intake of Scheduled Castes and Scheduled Tribes against vacancie's reserved for them in recruitment and promotion categories in the Railways for the half-years ending March 31, 1974 March 31, 1975, September 30, 1976, March 31, 1977 and September 30, 1979 were placed before us. They reveal how painfully slow and woefully insignificant has been the progress achieved by the members of the Scheduled Castes and Scheduled Tribes in the matter of their participation in the Railway administration. My brother Krishna Iyer, J. has extracted some of the facts and figures. I do not think it is necessary for me to refer to them over again. It is sufficient to say that members of the Scheduled Casts and Scheduled Tribes far from acquiring any monopolistic or excessive representation over any category of posts (other than sweepers) are nowhere near being adequately represented. Neither the reservation rule nor the 'carry forward for three years' rule has resulted in any such 'disosterous' consequence. The complaint of the petitioners that the circulars and orders had resulted in excessive representation of the Scheduled Castes and Scheduled Tribes is without foundation generally or with reference to any particular year.
25. R.S. Pathak. J., has, expressed, reservation with regard to the judgments of Krishna Iyer, J., and Chinnappa Reddy, J., but he too has not accepted the contention of the petitioners that there was excessive reservation in form of Scheduled Castes and Scheduled Tribes and has observed:
We have been taken through charts and statistics among other documentary material but the material placed before us does not clearly and definitely establish what it seeks to prove.
26. On the basis of the aforesaid decisions of the Supreme Court in General Manager Southern Railway v. Rangachari (supra), State of Kerala v. N.N. Thomas (supra) and Akhil Bhartiya Soshit Karmachari Sangh v. Union of India (supra) it can be said that reservation in favour of Scheduled Castes and Scheduled Tribes is permissible under Article 16(4) so long as they are not adequately represented in the services and that inadequacy in the representation has to be assessed on the basis of a numerical as well as qualitative test, Further more for the purpose of determining whether there is adequate representation of the Scheduled Castes & Scheduled Tribes in the service it is necessary to take into consideration their representation in the various services. In so far as the present case is concerned it may be stated that the circular of the Railway Board dated 20th April, 1970 whereby the reservation for Scheduled Castes and Scheduled Tribes has been increased from 12-1/2% and 5% to 15% 7-1/2 respectively and and the revised 40 point roster issued by the Railway Board on 27th April, 1970 have been upheld by the Supreme Court in Akhil Bhartiya Soshit Karmachari Sangh v. Union of India(supra). The reservation of vacancies for Scheduled Castes and Scheduled Tribes in accordance with 40 point roster dated 24th April, 1970 cannot, therefore, be challenged on the ground that the said reservation is in excess of the quota prescribed for Scheduled Castes and Scheduled Tribes.
27. In this context it may be mentioned that the first notification that was issued after the coming into force of the Constitution was the Resolution dated 13th September 1950 and it provided for reservation of 12-1/2 %, vacancies for Scheduled Castes and 5% vacancies for Scheduled Tribes. The circular of Railway Board dated 20th April 1970 only increase the percentage of resesvation from 12-1/2% to 15% for Scheduled Castes & from 5% to 7-l/2% for Scheduled Tribes. It does not alter the basis for the reservation. This means that the enhanced reservation prescribed by the Circular dated 20th April, 1970 will also apply to vacancies occurring every year and is not to be applied on the basis of the total number of posts in a particular cadre. The circulars laying down the carry forward rule also lead to the same inference because the principle of carrying forward of vacancies also proceeds on the basis of reservation against vacancies each year. The 40 point roster circulated by the Railway Board on 27th April, 1970 also proceeds on the basis that the reservation is prescribed against the vacancies and not against the strength of the cadre.
28. In J.C. Malik v. Union of India (supra) the learned Judges have laid emphasis on the use of the words 'posts and services under Government of India' in the circular dated 20th April, 1970. The learned Judges have, however, failed to attach any importance to the fact that the circular dated 20th April, 1970 only modifies the percentage of reservation laid down in the resolution of the Government of India dated 13th September, 1950 and that the said Resolution dated 13th September, 1950 provides for reservation against vacancies. The learned Judges have also failed to notice that the rule about carry forward has been laid down for the purpose of giving effect to the policy of reservation and the various orders and circulars relating to the carry forward rule viz order dated 28th January, 1952 and 7th May, 1955 and the circular of the Railway Board dated 20th April, 1970, talk of vacancies of a particular year. The learned Judges have also failed to note that the interpretation placed by them on the circular dated 20th May, 1970 that the reservation has to be made on the basis of posts in the cadre and not on the basis of vacancies has the effect of reducing as unworkable the 40 point roster prescribed by the Railway Board on 27th April, 1970 for the purpose of implementation of the policy of reservation contained in the circular dated 20th May, 1970.
29. Apart from the considerations referred to above the decision of the Allahabad High Court in J.C. Malik v. Union of India (supra) can no longer hold the field after the decision of the Supreme Court in Akhil Bhartiya Soshit Karmachari Sangh v. Union of India (supra) wherein the adequacy of representation of the Schedule Castes/Scheduled Tribes in the services has been examined on the basis of the percentage of repreprentation in the entire service and wherein the 40 point roster prescribed by the Railway Board on 27th April, 1970 has been held to be valid.
30. The aforesaid discussion leads to the conclusion that reservation for the Scheduled Castes and Scheduled Tribes prescribed Under circular dated 20th April, 1970 has to be worked on the basis of vacancies occurring in each year and has to be implemented in accordance with the 40 point roster prescribed by the Railway Board on 27th April, 1970.
31. In the present case it is not disputed that the determination of the vacancies for the Scheduled Castes and Scheduled Tribes and the general categories in the circular dated 15th April, 1978 have been made in accordance with the 40 point roster. No fault can, therefore, be found in the said determination and the contention of the petitioner that the said determination of vacancies is violative of Articles 14 and 16 of the Constitution cannot be accepted.
32. No other contention was urged by Shri Pathak.
33. In the result the writ petition fails and is hereby dismissed. There will be no order as to costs.