1. These two appeals are filed against the order of Mohan, J., in W.P. No. 2293 of 1973. That petition was filed by one Dhana Singh for the issue of a writ of certiorari calling for the order dated 11th October, 1972 on the file of the General Manager, Integral Coach Factory, Madras, and quashing the same. In that writ petition Dhana Singh made the Chief Mechanical Engineer, General Manager, Chairman, Railway Board, and the Union of India, as the first four respondents, and Chakravarthi as the fifth respondent. The facts of the case are briefly as follows. Upto 25th March, 1970 selection to the nine grades like lathe-carpenter, fitter, etc., was made in accordance with a common roster maintained. Under the common roster for the nine grades a reservation of 12 1/2 per cent of seats for the Scheduled Caste and 5 per cent for the Scheduled Tribes was provided. By a circular dated 29th April, 1970, the representation for the Scheduled Caste and Scheduled Tribes was increased from 12 1/2 per cent to 15 per cent and from 5 per cent to 7 1/2 per cent respectively. The circular directed the preparation of a new roster from 25th March, 1970, according to the new representation provided for in the circular. The circular also provided that vacancies shall be filled up according to the new roster, subject to the exception which we shall refer to presently.
2. One Narayanasami, who was a Sheet Mechanic, was promoted as Shop Superintendent in 1965. To fill up the vacancy that arose because of the promotion of Narayanasami, Thomas Jebaraj was selected. His name was kept in the panel and he also officiated as Superintendent. On 7th October, 1971, Narayanasami applied for leave, preparatory to retirement. He was granted leave on 7th October, 1971 and he retired on 5th January, 1972. Jebaraj was promoted on 7th October, 1971. In November, 1971, the authorities conducted a selection for the post of Superintendent anticipating the promotion of Jebaraj. Two persons were selected, one was Dhana Singh (petitioner in the writ petition) and the other was Chakravarthi, (fifth respondent). In April, 1972, Jebaraj was promoted to Class II service. In the vacancy so caused Dhana Singh was posted by the Integral Coach Factory, But, on appeal, the Government set aside the order appointing Dhana Singh, and posted Chakravarthi. In the writ petition. Dhana Singh complained that the Government was in error in giving Chakravarthi seniority and depriving him of the seniority which was conferred on him by the amended circular, and that the order of the Government was in gross violation of Articles 16 (4) and 335 of the Constitution of India.
3. The learned Judge allowed the writ petition, holding that, according to the new circular and Annexure I, Jebaraj having been promoted as against a scheduled caste vacancy, the vacancy could only be treated as a reserve vacancy.
4. In order to appreciate the contentions of the parties, we shall refer to the circular which was issued, according to which appointments will have to be made. The relevant letter which regulated the appointments to the various categories is dated 29th April, 1970 from the Assistant Director (Establishment), Railway Board, New Delhi, to the General Managers of all Indian Railways. We extract the letter in full, as it is important:
The model rosters for reservation of vacancies for scheduled castes and scheduled tribes filled by direct recruitment on all India basis by open competition and also for posts filled otherwise than by open competition were circulated to Railways--vide Board's letter No. E(SCT) 64 CM 15/1 of 16th January, 1964. Consequent on the Government decision to increase the percentage of reservation for scheduled caste and scheduled tribe as communicated in Board's letter of even No. dated 20th April, 1970, the rosters have been revised and the revised rosters are enclosed as in Annexures I and II.
'For posts filled by promotion where reservation has been provided for scheduled castes and scheduled tribes, the roster prescribed in Annexure I is to be followed.
''Vacancies filled on or after 25th March, 1970, should be shown in the rosters to be opened in the forms now prescribed unless selections for filling recruitment promotion vacancies were made prior to 25th March, 1970. The existing rosters should be deemed to have been discontinued from that date. The unfilled reservation, if any, in the existing rosters should be carried over to the new rosters.'
5. The letter provided that on the Government's decision to increase the percentage of reservation for scheduled castes and scheduled tribes, the rosters had been revised and that the revised rosters were enclosed as on Annexures I and II. It also provided that for posts filled by promotion where reservation had been provided for scheduled castes and scheduled tribes the roster prescribed in Annexure I should be followed. Then comes the paragraph on the construction of which the decision of the case will depend. It provided that vacancies filled on or after 25th March, 1970, should be shown in the rosters to be in the forms now prescribed. Stopping here for a moment, it is clear that, if a vacancy was filled up on or after 25 th March, 1970, it would have to be shown in the new roster. There is an important proviso to this rule, viz., that, if selections for filling up recruitment promotion vacancies were made prior to 25th March, 1970, they would be exempt. The letter also stated that the existing rosters should be deemed to have been discontinued from that date, i.e., 25th March, 1970. The unfilled reservation, if any, in the existing rosters should be carried over to the new rosters. The crucial question for consideration in this case is what is the scope of the proviso to the rule, that vacancies filled up on or after 25th March, 1970, should be shown in the new rosters. It is clear that the existing rosters should be deemed to have been discontinued except to the extent to which the proviso applied. There is also no difficulty if the appointment is made after 25th March, 1970, for that can only be under the new rosters. If the appointment had been prior to 25th March, 1970, equally there could be no difficulty, for the old roster would apply. Difficulty, however, arises, when selections were made before 25th March, 1970, but appointments were made subsequent to 25th March, 1970. In the case before us the vacancy actually arose on 7th October, 1971, when Narayanasami went on leave, preparatory to retirement, on 5th January, 1972. This was also an anticipated vacancy, when Jebaraj was selected on 5th September, 1966. The order of selection runs as follows:
The Selection Board which met on 17th August, 1966 and 24th August, 196r have selected the following candidates to the posts noted below in Mechanical Department:
For promotion to the post of Shop Superintendent Mechanist/Sheet Metal.
Order of merit Name Designation Shop/Office
1. Sri Thomas Jebaraj Asst.Shop Material plann ing Office/Shell
Superinten dent. Division.
The order of selection also provided that the said panel shall be current (or two years or till exhausted, whichever was earlier. But it is not disputed that, as required under Rule 217 (b) of the Indian Railway Establishment Manual, Thomas Jebaraj officiated against a non-fortuitous vacancy and that therefore his position in the panel was confirmed. While so, a substantive vacancy arose only on the retirement of Narayanasami on 5th January, 1972. The new rosters came into force on 25th March, 1970. The appointment was no doubt made after the rules came into force, but the question is whether the case of Jebaraj falls under the exception to the rule, viz., whether he was selected for filling up a promotion vacancy prior to 25th March, 1970. Considering the language of the letter, we have no difficulty in coming to the conclusion that Jebaraj was selected for filling up a promotion vacancy prior to 25th March, 1970. But Mr. Chella-swamy, learned Counsel for the respondents, submitted that the selection should be for a specified permanent post and that the selection for constituting a panel for enabling a person to act in an unexpected vacancy would not fulfil the requirement of selection for filling up a vacancy. We are unable to read in the language of the letter anything as requiring that the selection should be for filling up a specified permanent vacancy. The contention of learned Counsel is that, when Jebaraj was selected, the selection was not earmarked for filling up the vacancy caused by the retirement of Narayanasami on a future date. We find ourselves unable to accept this contention, for there are no limiting words in the letter. All that it requires is that, if selection was made for filling up promotion vacancies prior to 25th March, 1970, it would be exempt. It cannot be disputed that Jebaraj was selected for filling up the vacancy which was expected to arise on the retirement of Narayanansami on 5th January, 1972. We are inclined to go further and say that the requirement of the letter will be satisfied even if the selection was made for filling up an anticipated vacancy, for as already stated, there are no limiting words.
6. We are unable to agree with the view of the learned Judge that the requirement of paragraph 3 of the letter in question would not be satisfied, when there was only a selection for drawing up a panel. According to the learned Judge, paragraph 3 contemplates selection against a particular vacancy. For the reasons already stated, we are unable to accept this view, as the language of the letter does not warrant such a construction. We are also unable to accept the learned Judge's view that the third paragraph of the letter contemplates the discontinuance of the existing rosters, for such discontinuance was subject to the proviso which exempted the selection made before 25th March 1970.
7. The note appended to Annexure I of the Board's letter dated 29th April, 1970, states:
If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved, and, if there be only one vacancy, it should be treated as unreserved.
The appointments of Dhana Singh and Chakravarthi were made by an order dated 2nd December, 1971. The order runs as follows:
The Selection Board which met on 29th November, 1971, have selected the following two candidates for the post of Shop Superintendent Mechanist (Sheet Metal)....
Order of merit Name Designation Shop/Office
1. R. Chakravarthi Asst., Shop Supt. PL/Fur.
2. M. Dhana Singh (S.G.) Ghargeman 'A' Shop 10
8. It is noted that Dhana Singh was selected against a reserve vacancy for scheduled castes. The selection admittedly having been made after 25th March, 1970, the new roster was applicable, and as admittedly there was only one vacancy in 1972, the rule that it should be treated as an unreserved vacancy, as stated in the Note to Annexure I, would have to be followed. The result will be that Ghakravarthi would have to be appointed and that is what the Government have done in this case. In this view, the writ petition ought to have been dismissed. We therefore allow the writ appeals and restore the order of the Government appointing Ghakravarthi. There will be no order as to costs.