B. R. ACHARYA v. STATE — 1984 DIGILAW 278 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) PETITIONER B. R. Acharya who is working as a probation officer under the Probation of Offenders Act 1958 within the administrative set Up of the Directorate of Social Defence State of Gujarat has come to this court by way of the present petition under Article 226 of the Constitution of India read with Articles 14 and 16 thereof making a grievance that respondent No. 4 who is at present working as Deputy Director in the same Directorate of Social Defence has been illegally promoted even though originally the petitioner was senior to respondent No. 4 in the lower cadre of the same service. The petitioner has challenged the promotions given to respondent No. 4 on three occasions firstly in December 1977 when respondent No. 4 was promoted as Chief Officer Probation of Offenders Act secondly in November 1978 when he was promoted as Child Marriage Prevention officer in class 11 service and lastly when he was promoted on 19. 5. 1982 as Class I officer in the same service as Deputy Director ( 2 ) IN order to appreciate the grievance of the petitioner who has argued this petition in person. it is necessary to briefly note at the outset the relevant service history of both the contenders viz. the petitioner on the one hand and respondent No 4 on the other. SERVICE history of the petitioner:- He is a graduate of Arts and Law of the Gujarat University having obtained his degrees in 1959 and 1961 respectively. He joined the department of Social Welfare which is subsequently known as Social Defence Department of the respondent-State in January 1963 as a probation officer. At that time probation officers posts were governed by the provisions of the Bombay Probation of Offenders Act 1958 In 1965 the petitioner was posted on transfer as probation officer under the Childrens Act which was at that time Saurashtra Childrens Act. In 1969 the petitioner was again transferred as a probation officer under the Bombay Probation of Offenders Act. He worked as a probation officer at various places during his service tenure and even at present he is working as a probation officer. However from 1973 the petitioner is working as a probation officer under the provisions of the Probation of Offenders Act 1958 which is the Central Act. He worked as a probation officer at various places during his service tenure and even at present he is working as a probation officer. However from 1973 the petitioner is working as a probation officer under the provisions of the Probation of Offenders Act 1958 which is the Central Act. As provided under the Central Act and the rules made thereunder the petitioner was entitled to the status of a gazetted officer class rr under rule 7 thereof. The petitioner was notified as such vide notification of November 1979 with effect from September 1975. However even prior thereto in May 1973 the petitioner was confirmed as a probation officer with effect from January 1979. Now it is pertinent to note that probation officers working under the Directorate of Social Defence of the State of Gujarat and exercising their functions under the provisions of the Probation of Offenders Act 1958 were not guaranteed gazetted status of class II service in the light of the then existing rules which held the field. According to the probation officers they were entitled to that status. Hence some of them filed special civil application No. 806 of 1975 in this court against the State of Gujarat and its concealed officers. The said petition came to be allowed by D. A. Desai J. (as he then was) on 7/08/1975 It was directed that the respondents should classify concerned petitioners of that petition as gazetted officers of class II service of the State of Gujarat from the date the relevant rules came into force. The petitioner was also a probation officer working under the Probation of Offenders Act at the relevant time. As per the decision of this court. he also became entitled to be given class II status though he was actually not joined as one of the petitioners in the aforesaid petition. But this discussion is academic for the present purpose for two reasons. Firstly no question regarding determination of the status of the petitioner as class II servant arises for consideration in the present proceedings and secondly after the decision of D. A. Desai J. in the aforesaid petition the very rules have undergone a change and the concerned rule 7 has been deleted with effect from January 1980. Consequently. this aspect of the matter is not dilated upon any further. Consequently. this aspect of the matter is not dilated upon any further. The aforesaid resume of the important events that took place in the service career of the petitioner as a probation officer shows that right from 1963 onwards all throughout the petitioner has worked as a probation officer earlier under the Bombay Probation of Offenders Act and subsequently under the Central Act from January 1973 and he has been confirmed as a probation officer from 1972. Thus he is fairly senior probation officer. Service history of respondent No. 4 - Now is the time to have a look at the service biodata of respondent No 4 He is a scheduled tribe employee. dc joined the service of respondent No. 1 State under the Directorate of Social Defence in August 1965. His appointment was made as a probation officer under the then applicable Bombay Probation of Offenders Act 1958 Thereafter in 1970 he was transferred to Ahwa as a probation officer under the Childrens Act which at the relevant time was the Bombay Childrens Act. There is no dispute that respondent No. 4 continued all throughout to act as a probation officer under the Childrens Act till beginning of December 1977. It is thereafter that respondent No. 4 got promoted as chief officer. Probation of Offenders Act by way of roster point. This is the starting point of dispute between the contesting parties. Respondent No. 4 was further promoted as Child Marriage Prevention officer which was a substantive class II post in November 1978 and thereafter he was further promoted in May 1982 as Deputy Director of Social Defence which is a class 1 post. The aforesaid three events in the service career of respondent No. 4 have been hotly brought in controversy in the present proceedings. ( 3 ) MAIN contention of the petitioners :- In the background of the comparative service history or the petitioner and respondent No 4. the main contentions canvassed by the party-in person will have to he considered. His main submissions are as under :- (1) Respondent No. 4 was admittedly junior to the petitioner in the cadre of probation officers as he had joined as probation officer in 1965 two years after the petitioners entry in Government service as probation officer. the main contentions canvassed by the party-in person will have to he considered. His main submissions are as under :- (1) Respondent No. 4 was admittedly junior to the petitioner in the cadre of probation officers as he had joined as probation officer in 1965 two years after the petitioners entry in Government service as probation officer. That the petitioner had continued as a probation officer all throughout sometimes acting as a probation officer under the Childrens Act sometimes under the Bombay Probation of Offenders Act and thereafter under the Central Act; while respondent No. 4 upto December 1977 had continued to work as a probation officer under the Childrens Act. Promotion given to respondent No. 4/12/1977 as Chief officer Probation of Offenders Act was illegal and contrary to the usual procedure of recruitment which places emphasis on seniority. (2) Initial promotion to respondent No. 4/12/1977 as Chief officer and subsequent promotion as Child Marriage Prevention officer in November 1978 and his further promotion as class 1 officer in May 1989 are all based on the fact that respondent No. 4 was a scheduled tribe employee and was seeking protection under the Government instructions issued in 1976 reserving special promotional avenues in the departmental hierarchy as per the provisions of Article 16 (4) of the Constitution. It was contended that these types of reservations for scheduled castes and scheduled tribes as made applicable by the State of Gujarat in the Social Defence Department were unconstitutional because they were excessive and as the rules of reservations were made to apply retrospectively and they sought to destroy the existing rights of Government servants then in Government service. That inflicted substantive injury to the petitioner. (3) Reservations made ill favour of scheduled tribe and scheduled caste candidates by the respondent-State by means of Government resolutions were illegal as they were not backed up by any statutory rules under Article 309 of the Constitution of India; (4) Reservations made in favour of scheduled tribe and scheduled caste candidates in any case are bad as no such reservations have been made in other wings of the State viz. judiciary and legislature and especially in judiciary. ( 4 ) MR. S. R. Divetia for the respondents has combated these contentions. Deputy Director J. H. Thakur has filed his affidavit-in-reply opposing the petition and the petitioner has filed his rejoinder. judiciary and legislature and especially in judiciary. ( 4 ) MR. S. R. Divetia for the respondents has combated these contentions. Deputy Director J. H. Thakur has filed his affidavit-in-reply opposing the petition and the petitioner has filed his rejoinder. ( 5 ) I shall proceed to deal with the aforesaid contentions canvassed by the party-in-person in the same sequence in which they were raised. So far as the first contention is concerned it is no doubt the that the petitioner had entered the portals of the service of the respondent-State in the Directorate of Social Defence as a probation officer two years prior to the entry of respondent No. 4. It is also true that till November 1977 the petitioner had worked as a probation officer and he was confirmed as such from January 1972 while respondent No. 4 from the date of his entry in 1965 had worked as a probation officer under the Childrens Act. It is not strictly necessary to consider whether at the relevant time the petitioner can be treated to be a gazetted officer or not as that controversy is not relevant nor is it on anvil in the present case. However the fact remains that the petitioner was senior to respondent No. 4 as probation officer from the inception of the service career of both these contenders. However the distinguishing feature in the case of respondent No. 4 is that he is a scheduled tribe employee. ( 6 ) SO far as his first promotion as chief officer Probation of Offenders Act is concerned it is an admitted position between the parties that there were diverse channels for effecting recruitment to the said post. From amongst Probation officers working under the Probation of Offenders Act or Probation officers working under the Childrens Act and from other sources promotion could be effected to the post of chief officer. It is true that even though the petitioner was senior to respondent No. 4 at the relevant time he was bypassed and respondent No. 4 was appointed as chief officer in December 1977. The question is whether his promotion was in any way contrary to any statutory rules. It is true that even though the petitioner was senior to respondent No. 4 at the relevant time he was bypassed and respondent No. 4 was appointed as chief officer in December 1977. The question is whether his promotion was in any way contrary to any statutory rules. In the affidavit-in-reply filed by the Deputy Director it has been stated in para 3 that it was the First occasion of promotion in the higher cadre of C. O. and its equivalent in the pay scale of Rs. 550-900. Roster point No. 1 reserved for S. T. candidate was to be filled in by the S. T candidate. As per the seniority list of the P. O. as on 1. 1 published and finalised under the office letter No. EST/sent/346 dated 15. 6 shri Balat is shown at Sr. No. 19 but he being seniormost to all other S. T. candidates in the seniority list and fulfilling other requirements for promotion his case was considered and given promotion with effect from 14. 12. 1977. It is therefore a specific case of the respondents that respondent No. 4 was permitted to steal a march over the petitioner only by the force of roster point. Thus reservation in promotional avenues in the higher echelon of service for S. T and S. C. employees was pressed in service by the respondents for effecting promotion of respondent No. 4/12/1977 as chief officer under the Probation of Offenders Act. It is also not disputed between the parties that the roster system came into force so far as the Social Defence Department is concerned from 1. 1. 1976. I have been referred to a compilation published by the Social Defence Department in 1977 which collects all the resolutions and Govt. circulars issued by the State of Gujarat from time to time in connection with reservations of posts in Govt. service for S. T. and S. C. candidates. It is made clear that the said reservations have effected as per Articles 335 and 16 (4) of the Constitution. This is specifically mentioned in Chapter I of the said compilation Instructions issued by the State Government from time to time regarding operation of the roster system are collected in chapter IV. service for S. T. and S. C. candidates. It is made clear that the said reservations have effected as per Articles 335 and 16 (4) of the Constitution. This is specifically mentioned in Chapter I of the said compilation Instructions issued by the State Government from time to time regarding operation of the roster system are collected in chapter IV. It has been stated therein that for reservation of posts promotional avenues to class I and II service would be 7% for S. C. candidates and 14% for S. T. Candidates. In chapter V in clause 9 (1) a Government circular has been mentioned which provides to the effect that in cases where proper candidates for filling up reserved posts in a given year were not available they can be filled up as non-reserved posts but in two successive occasions for future recruitment that number of posts should be carried forward as reserved posts. But in any case the total number of reserved posts should not exceed at a given point of time 45% of the total available vacancies at that point of time. In view of the aforesaid reservation made for S. T. and S. C. employees as per the provision of Articles 335 and 16 (4) of the Constitution it cannot be said that initial promotion of respondent No. 4 who is admittedly an S. T. employee in December 1977 was in no way discriminatory or contrary to the recruitment rules then in force. The Government resolutions which were holding the field ensuring and guaranteeing such reservation necessarily represent a special scheme of promotion for such reserved post for such S. T. and S. C. candidates for whom such scheme was meant. The first contention of the petitioner therefore fails on account of the aforesaid special features of this case. ( 7 ) THAT takes me to the consideration of the second contention of the petitioner. Having realised that the scheme of reservation of promotion posts in the department for S. T. and S. C employees had come into force from 1. 1. 1976 and that roster system was applied since then the petitioner was driven to contend that these types of reservations were unconstitutional firstly because the reservations were excessive and secondly because rules of reservations were made to apply retrospectively. 1. 1976 and that roster system was applied since then the petitioner was driven to contend that these types of reservations were unconstitutional firstly because the reservations were excessive and secondly because rules of reservations were made to apply retrospectively. It is therefore necessary for me to examine these two pronged attack on the scheme of reservation as mounted by the petitioner. So far as the first limb of the attack is concerned it has to be kept in view that the system of reservation which has been brought in force since 1. 1. 1976 in the Social Defence department has provided for a limited percentage of reservation of promotion posts for S. T. and S. C. employees. Even the total carried forward posts for S. T. and S. C. Candidates has not to exceed 45% at a given point of time The question is whether such type of reservation can be considered to be excessive and therefore unreasonable. The aforesaid contention of the petitioner has to be answered in the negative in the light of the settled legal position that emerges from a catena of decisions of the Supreme Court. I may refer to two judgments on the point. The Constitution Bench of the Supreme Court consisting of S. K Das acting C. J. and K. Subba Rao Raghubar Dayal N. Rajagopala Ayyangar and J. R. Mudholkar JJ. had to examine the scope of Art. 16 (4) in the light of carry forward rule permitting reservation of posts for S. C. and S. T. candidates in a given year. Mudholkar J. speaking for the majority has made the following pertinent observations. "what is meant by equality in Art. 14 is equality amongst equals. It does not provide that what is aimed at is an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of the differences such as age sex education and so on and so forth as may be found amongst people in general indeed while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be made by the State between a citizen and a citizen who answer the same description and the differences which may obtain between them are of no relevance for the purpose of applying a particular law reasonable classification is permissible. It does not mean anything more". It does not mean anything more". It has been further observed -"it is an accepted fact that members of the Scheduled Castes and Tribes are by and large backward in comparison with other communities in the country The purpose of of Art 16 (4) is to ensure that such people because of their backwardness should not be unduly handicapped in the matter of securing employment in the various services of the State This provision therefore contemplates reservation of appointments or posts in favour of backward classes who are not adequately represented in the service under the State Where therefore the State makes a rule providing for the reservation of appointments and posts for such backward classes it cannot be said to have violated Art 14 merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or even more meritorious than the members of the backward classes or merely because such reservation is not made in every kind of service under the State whole the object of a rule is to make reasonable allowance for the backwardness of members of a class by reserving certain proportion of Appointments for them in the public services of the State what the State would in fact be doing would be to provide the members of backward classes with an opportunity equal to that of the members of the more advanced classes in the matter of appointments to public services. If the reservation is so excessive that if practically denies a reasonable opportunity for employment to members of other communities the position may well be different and it would be open then for a member for a more advanced class to complain that he has been denied equality by the State"the Supreme Court then examined the question as to when call reservation under Article 16 (4) be treated as unreasonable or excessive. In that connection it was observed in para 17 -"under Art 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"it was further observed:"if reservation was within the competence of the State the said fortuitous circumstance could not affect the reservation so made Reservation made in one selection or spread over many selections is only a convenient method of implementing the provision of reservation Unless it is established that an unreasonably disproportionate part of the cadre strength is filed up with the said castes and tribes it is not possible to contend that the provision is not one of reservation but amounts to an extinction of the fundamental right"on facts it was found that the carry forward rule which came Up for consideration before the Supreme Court permitting reservation of more than 50% in third year was unconstitutional and invalid. It is therefore obvious that even according to the aforesaid decision of the Supreme Court reservation of posts upto 50% by way of carry forward system in a given year would not be treated as unreasonable. However all depends upon the facts and circumstances of the concerned service for which reservation is made. So far as the facts of the present case go it cannot be said that there was such comprehensive reservation of promotional avenues in the Social Defence department as can be treated to be unreasonable at any point of time. The scheme of reservation in the present case as seen earlier did not envisage at any point of time even by way of carry forward system reservation of more than 45 of available vacancies and in a given year reservation was even much less. In December 1977 when respondent No. 4 was promoted as Chief officer by roster point he was the only S. T. candidate in the department who was given the available post. The system of reservation on account of which he got promoted cannot be faulted on the facts of the case by dubbing it to be unreasonable from any view point. The system of reservation on account of which he got promoted cannot be faulted on the facts of the case by dubbing it to be unreasonable from any view point. It has to be kept in view that it is now well settled that if there is only one vacancy at a given point of time by application of the reservation system and on operation of the roster it can be made available to S. T. or S. C. candidate. That would not be obnoxious. or contrary to the constitutional guarantee under Art. 16 (1) read with Art. 16 (4 ). he later Constitutional Bench of the Supreme Court of A. N. Ray C. J. and D. G. Palekar. Y. V. Chandrachud. P. N. Bhagwati and M. R. Krishna Iyer JJ. in the case of A. R. Choudhury v. Union of India A. I. R. 1974 S. C. 533. had an occasion to consider this question. The carry forward rule in that case provided that in any recruitment year. the number of normal reserved vacancies I the carried forward reserved vacancies together shall not exceed 45 per cent of the total number of vacancies and nevertheless if there be only two vacancies one of them may be treated as a reserved vacancy. But if there be only one vacancy it shall he treated as non-reserved. The aforesaid carry forward rule was held to be within the legally permissible limit of Art. 16 (4 ). In view of the aforesaid settled legal position it is not possible to agree with the submission of petitioner that on the facts of the present case reservations of promotional avenues for S. T. and S. C. employees as per the roster system in vogue were in any way excessive. ( 8 ) THAT takes me to the second limb of the second contention of the petitioner. He submitted that in any case the system of reservation has been applied retrospectively and that has the effect of destroying the existing rights of the Government servants for being promoted according to the normal recruitment procedure. Even this contention does not bear scrutiny. It must be kept h view that the roster system came to be introduced in the department in question from 1. 1. 1976. Even this contention does not bear scrutiny. It must be kept h view that the roster system came to be introduced in the department in question from 1. 1. 1976. Under that system reservations of promotional avenues for S. T. and S. C. employees came to be guaranteed as per the constitutional provision of Articles 336 and 16 (4) of the Constitution for the deserving candidates belonging to that disabled category. The promotion of respondent No. 4 in question was effected for the first time in December 1977 by giving him benefit of roster point. By that time system of reservations had already applied and it was more than one year old. There is no question of any retrospective operation of the roster system on the facts of the present case. It is obvious that as and when he system of such reservations comes to be applied for the first time it has to apply to all the existing Govt. servants amongst whom may be S. T. and S. C. employees also. Merely because the roster system is applied at a given point or me and because of that future promotion chances of the existing Government employees get adversely affected if they do not belong to the class of S. T. or S. C. employees it cannot be said that any retrospective effect is given to the stem of reservation as and when brought in force. . It is true that Government servant may be justified in having a fond hope that he may reasonably get a chance of promotion in future other things being equal. But it is a mere chance promotion. The roster system does affect that chance but if the system can sustained on the touch stone of the Constitution it cannot be faulted merely account of the fact that its result is deleterious to non-scheduled tribe or scheduled caste employees in Government service who may be expecting promotion in future. It is therefore not possible to agree with the submission of the petitioner that the roster system is applied retrospectively on the facts of the present case. The said submission is found to be unsustainable on the facts of present case as discussed earlier This is not a case in which by applying the roster point respondent No. 4 is being pushed up from any time prior to 1976 in the roster system came in vogue. The said submission is found to be unsustainable on the facts of present case as discussed earlier This is not a case in which by applying the roster point respondent No. 4 is being pushed up from any time prior to 1976 in the roster system came in vogue. He was pushed up for the first time in December 1977 when the roster system had come into operation in the Social Defence department. Whatever promotion were given to respondent No. 4 on the basis of the roster point as S. T. employee were all given subsequent to the operation of the roster system. In view of the aforesaid factual position the ratio of the decisions of the Supreme Court in TELCO v. S. T. officer Poona A. I. R. 1979 S. C. 345 and State of U. P. v. Chandra Bhushan A. I. R. 1980 S. C. 591 cannot be of any avail to the petitioner as it is now well settled that seniority is a valuable right and a condition of service and if reservations are to be affected They are to be effected prospectively. On the facts of of this case it is found that the roster system introduced in the Social Defence department has been utilised purely prospectively as far as respondent No. 4 is concerned. The second prong of the second submission of the petitioner therefore fails. ( 9 ) THAT takes me to the consideration of the third contention of the petitioner. He submitted that if any reservations are to be effected by the State under Article 16 (4) of the Constitution they can be effected by enacting statutory rules under Article 309 alone. This submission is ex-facie devoid of any merit. All that Article 16 (4) provides is that it would be open to the State to make suitable provision for 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 service under the State at a given point of time. It nowhere enjoins that the reservations if made accordingly have to be made by statutory rules alone. It is now well settled that executive can act by framing statutory rules or even by issuing departmental instructions or circulars which obviously have to be uniformly followed by the persons concerned. It nowhere enjoins that the reservations if made accordingly have to be made by statutory rules alone. It is now well settled that executive can act by framing statutory rules or even by issuing departmental instructions or circulars which obviously have to be uniformly followed by the persons concerned. it is not necessary that reservations effected as per Article 16 (4) should only be by statutory rules as canvassed by the petitioner. They can be made by statutory rules or can be by departmental instructions which once issued would hold the field to the extent they do not conflict with any statutory rules and till they are superseded by further instructions or by statutory rules which may be enacted in future and which may occupy the same field. It is not the contention of the petitioner that the instructions introducing the roster system which are compiled in the compilation referred to by me earlier are in conflict with any other statutory rules or that they are subsequently rescinded or superseded by fresh instructions or any other subsequent statutory rules. Consequently the roster system as applicable to the department in question from 1. 1. 1976 cannot be found fault with only on the ground that no statutory rules are framed to that effect by the State. If any authority were needed in that connection it is supplied by the decision of the Punjab and Haryana High Court in the case of Mangal Singh v. Punjab State A. I. R. 1968 Punjab 506 In that case a Division Bench of the Punjab High Court placing reliance on the decision of the Supreme Court in the case of M. R. Balaji v. State of Mysore A. I. R. 1963 S. C. 649 has held that the State can make provisions under Article 16 (4) by executive orders for appointment of backward class employees and for that purpose legislation is not necessary. I wholly concur with the aforesaid view of the Punjab and Haryana High Court. The third contention therefore fails. ( 10 ) THAT takes me to the last contention canvassed by the petitioner. I wholly concur with the aforesaid view of the Punjab and Haryana High Court. The third contention therefore fails. ( 10 ) THAT takes me to the last contention canvassed by the petitioner. He submitted that if any reservations were to be effected for S. T. and S. C. employees as per the permissive provision of Article 16 (4) the State ought to have introduced such reservations not only for the executive department btu also for Judiciary and so long as that is not done the reservations already introduced should be treated as illegal. It is difficult to appreciate this submission of the petitioner. It is not as if that S. T. and S. C. employees serving in Judiciary are making such grievance. So long as such reservations are not introduced in any wing of the Government as per the mandate of Art. 16 (1) all the employees of that wing would be treated at par. If at all a departure is to be made it with have to be consistently made as per the permissible provision of Article 16 (4 ). So long as that is not done the employees belonging to the general class i. e. who are not S. T or S. C. employees cannot make a grievance. They obviously do not and cannot hold a brief for S. T. or S. C. employees. Even such type of employees cannot make a grievance that for any given wing of the Government such reservation is not effected. It is now well settled that Article 15 (4) of the Constitution is merely a permissive provision. No right can be founded on the said provision to compel the State to effect reservations at any given point of time in any service. In the case of C. A. Rajendran v. Union of India A. I. R. 1968 S. C. 507 the Supreme Court has in terms held that Article 16 (4) is merely a permissive provision and confers no right on any employee to compel the State to effect reservations in a given service. Consequently even this last submission of the petitioner is found to he devoid of any substance and hence it is rejected. Consequently even this last submission of the petitioner is found to he devoid of any substance and hence it is rejected. ( 11 ) THESE were the only contentions canvassed by the petitioner in support of the petition and as they are found to be substanceless the inevitable result is that the petition fails and it is accordingly dismissed. Rule discharged. In the facts and circumstances of the case there will be no order as to costs. Petition dismissed. .