Supreme Court Of India

Harish Chandra Ram V. Mukh Ram Dubey

Civil Appeal No. 1508 of 1994. [Arising out of SLP(C) No. 13834 of 1993]. 18-02-1994

JUDGMENT

K. Ramaswamy, J.

Delay condoned.

2. Leave granted.

3. Heard counsel for the parties. The appellant was initially appointed as a Typist on 7.11.1974, and was regularised on 13.12.1976, and having become eligible for promotion as a Junior Section Grade Head Typist, he was promoted with effect from 7.11.1981. For promotion as a Senior Selection Grade Head Typist, rules require him to put in 5 years of service to become eligible for promotion. When his turn came as a reserved candidate (Scheduled Caste), he was considered by the Promotion Committee and was promoted on 13.1.1987. The respondent, a general candidate, though initially appointed as a Typist on 19.11.1960 and regularised on 12.2.1968 and was confirmed on 1.1.1969, claimed promotion in his own right as a general candidate. When he approached the Tribunal on the first instance, a statement appears to have been made on behalf of the State that his case will be considered according to rules. On that basis the Tribunal disposed of the case. Thereafter when the appellant was promoted without considering the case of the respondent, he filed CWJC No. 5756 of 1991 in the High Court of Patna and by judgment dated 13.11.1992 the Division Bench set aside the appointment of the appellant and directed to consider the case of Mukh Ram Dubey, contesting respondent, for appointment as Senior Selection Grade Head Typist with the following directions:

"Annexure 10 is hereby quashed with a further direction to the respondents to consider the case of eligible candidates for promotion to the post of Senior Selection Grade Head Typist within a period of four months from today."

Calling that direction in question this appeal by special leave has been filed.

4. The Government in the counter-affidavit in this Court in para 3 stated that the vacancy was reserved for Scheduled Castes. The appellant being a Scheduled Caste candidate, having fulfilled all the criteria for promotion, the Departmental Promotion Committee constituted in this behalf considered the case of the appellant and promoted him. Shri Pramod Swarup, learned counsel for Mr. Dubey, has stated that in the roster the vacancy on No. 3 is for general candidate and No. 2 vacancy is reserved for the Scheduled Castes. Since it was not filled up for three successive years, it must be deemed that the vacancy has been dereserved and thrown open to the respondent and other general candidates who alone should be considered for promotion. We find that there is no force in the contention. In the Government Resolution dated 30.6.1983 it was stated thus:

"Reservation is Government's policy and dereservation is not included in it. Dereservation is an exception for which Chief Minister's approval through the Reservation Commissioner of the Cabinet Secretariat, is essential. In anticipation of the order of the Chief Minister the reserved post could not be dereserved."

In another resolution of Government of Bihar dated 21.11.1990 it was stated that in sub-section 4(a) in the first instance the general category candidates will be given time-bound promotion on only those unreserved vacancies which are for the general category candidates according to the approved roster. In any event the general category candidates will not be promoted against a reserved vacancy, even if in the first instance a reserved category candidate is not available. In sub-section 4(b), in the second transaction for filling the reserved vacancy which could not have been filled in the first transaction, only reserved category candidates will be considered.

5. In view of the aforestated resolutions, it is clear that the general candidates will not be considered for promotion to the post for SC, ST or BC reserved candidates. The reserved candidates even if they are not available, it is settled law that unless dereservation is done the vacancy will not be thrown open to the general category. It is not incumbent upon the Government as soon as the vacancy arises that it must be filled by recruiting the candidates either by direct recruitment or promotion from feeder cadre or by transfer. So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance an hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and D considered A and D were promoted in 1984. The recruitment years are 1982 and 1984, and not 1980 when one vacancy existed or 1983 when two vacancies existed. So each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment.

6. Take another illustration. Suppose Public Service Commission advertises for direct recruitment in the year 1980, but actually selects the candidates in 1984. Whether 1980 would be the recruitment year ? Answer would be no. Second advertisement was made in 1985 and recruitment was made in 1990. The second recruitment year is 1990 and not 1985. It is thus clear that the recruitment year is the year in which recruitment takes place, but not each three successive years in which the vacancy exists. The same yardstick would apply to fill in the reserved vacancy. Dereservation will be considered only at the end of third recruitment year provided reserved candidates are not available, or considered at the recruitment and found not fit for promotion or carried forward for three successive recruitment years. Then the matter should be placed before the competent authority for consideration for dereservation of the reserved posts and a resolution or order should be made dereserving the posts. Then those alone reserved posts or vacancies will the thrown open for recruitment by the general candidates.

7. In view of the above legal position, though the vacancy had occurred in the year 1980 but recruitment was made in the year 1987 by which time the appellant had already fulfilled the qualifications and had become eligible for consideration to Vacancy No. 2 in the roster which was admittedly reserved for SC candidate. The Promotion Committee was right in considering the case of the appellant for promotion as Senior Selection Grade Head Typist since that post was kept reserved for the Scheduled Caste candidate.

8. The stand of the High Court that the rule of carry forward was for three successive years and since no one belonging to SC candidates was promoted for three years the vacancy becomes available to general candidates is illegal. Accordingly the High Court has committed grievous error of law in quashing the appointment of the appellant under Annexure 10 placed before the High Court and it is restored.

9. The appeal is allowed. The order of the High Court is set aside. The writ petition stands dismissed, but without costs.

Orders accordingly.

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