Judgment S.ALI AHMAD, J. 1. This is an application under Arts.226 and 227 of the Constitution of India. Out of the 43 petitioners, petitioners Nos.1 to 39 are holding the selection grade appointments in the Ministerial cadre of the Patna High Court. The remaining petitioners, namely petitioners Nos.40 to 43 are serving as Assistants in the Patna High Court. Their prayer is to quash the order of promotion of respondents Nos.5 to 7 as contained in Annexure-5, the gradation list of the selection grade of Assistants as contained in Annexure-5 1 and the order as contained in Annexure-5 informing petitioner No. 1 that the representation dated 17-1-1978 filed by him and other Assistants has been rejected. 2. This case came up for hearing on 17-9-1984. Mr. Ganesh Prasad Singh, learned counsel for the petitioners argued the following three points for consideration :- (i) The High Court adopted the roster of 1971 and gave promotion to respondents Nos. 5 to 7 in the year 1978 when the roster had become obsolete in the year 1975. (ii) Posts reserved for respondents Nos. 5 to 7 in the roster have also been taken to be the position in the gradation list irrespective of the inter se seniorty in the lower cadre. (iii) Clause (4) of Art.16 of the Constitution of India does not permit reservation at different grades of service; it only prescribes reservation in the service. When learned counsel for the petitioners concluded his argument, we called upon learned counsel for the respondents to give his reply. It then transpired that the counter-affidavit filed by the respondents was most casual, formal and unhelpful. The case was accordingly, adjourned to enable the respondents to file an affidavit bringing necessary facts on record. The case was then listed on 22nd October, 1984. But on that day also it had to be adjourned because the respondents had not supplied the required information. A supplementary counter-affidavit on behalf of respondents Nos. 2 to 4 was thereafter filed annexing, inter alia, copies of entire minutes relating to the promotion of respondents Nos. 5 to 7. When the case was taken up on 3-1-1985. Mr. Ganesh Prasad Singh, learned counsel for the petitioners very fairly told us that in view of the facts brought on record by the supplementary counter-affidavit he withdrew his earlier submissions. 5 to 7. When the case was taken up on 3-1-1985. Mr. Ganesh Prasad Singh, learned counsel for the petitioners very fairly told us that in view of the facts brought on record by the supplementary counter-affidavit he withdrew his earlier submissions. Learned counsel, however, said that on the basis of the facts the following points need consideration :- The selection grade is not a promotion in service or in the cadre and therefore, reservation as postulated under Cl.(4) of Art.16 of the Constitution of India is not attracted. Learned counsel alternatively urged that since promotion to selection grade was based entirely on seniority-cum-fitness, there was no element of selection and. as such, the provision of Cl.(4) of Art.16 of the Constitution of India is not attracted. The next point urged by learned counsel is that assignment in the gradation list of seniority, according to the reservation of posts in the roster, is neither within the scope of Art.16(4) of the Constitution nor according to the Rules framed by this Court. According to learned counsel, therefore, the gradation list should be declared not to indicate the seniority of petitioners Nos.1 to 39 respondents Nos.5 to 7, inter se. 3. In view of the argument advanced by learned counsel for the parties, it is not necessary to mention all the facts which have been brought on record by the parties. I propose to mention only such facts which are necessary for consideration of the points in issue and I must say that such facts are very few which are as follows :- All the petitioners entered into the services of this Court as Lower Division Assistants, They were duly confirmed in the said cadre and were later promoted as Upper Division Assistants. Respondents Nos. 5 to 7 also joined as Lower Division Assistants in the High Court and were confirmed in that capacity They also, in due course, were promoted to the cadre of Upper Division Assistants on different dates. According to the petitioners, respondents Nos. 5 to 7 were juniors to them both as Lower Division Assistants and Upper Division Assistants. It may be mentioned here that these respondents, namely, respondents Nos. 5 to 7 are members of the Scheduled Caste and, accordingly, they are entitled to the benefit of reservation introduced in their favour by the State Government and adopted by the High Court. 5 to 7 were juniors to them both as Lower Division Assistants and Upper Division Assistants. It may be mentioned here that these respondents, namely, respondents Nos. 5 to 7 are members of the Scheduled Caste and, accordingly, they are entitled to the benefit of reservation introduced in their favour by the State Government and adopted by the High Court. With that end in view, the High Court office suggested that a roster of vacancies be drawn up so that the vacancies by promotion may be filled up according to the rotation prescribed in the roster. The roster as suggested by the office is as follows :- "Roster 1. Scheduled Caste. 2. Unreserved 3. Scheduled Tribe. 4-7. Unreserved 8. Scheduled Caste 9-12. Unreserved 13. Scheduled Tribe 14. Unreserved 15. Scheduled Case 16-21. Unreserved 22. Scheduled Caste 23. Scheduled Tribe 24-28. Unreserved 29. Scheduled Caste 30-32. Unreserved 33. Scheduled Tribe 34-35. Unreserved 36. Scheduled Caste 37-42. Unreserved. 43. Scheduled Tribe 44. Scheduled Caste 45-50. Unreserved." The suggestion regarding the roster was placed before the Hon ble the Chief Justice along with the notes of the Registrar which read as follows:- "Coming to the roster of vacancies. I agree with the views of the office as at K of the notes at pages 25-26/n. at L of the notes at page 26/n as also at M of the notes at page 26/n." Mr. Justice Untwalia, who was then the Chief Justice approved the suggestion by writing "as at X to 25" on 20-11-1973. The effect of this was that the vacancies on promotion in the High Court had to be filled up according to the roster. 4. Admittedly 21 vacancies were filled up in the manner indicated by the roster without any controversy. Also admittedly there was unification of the Lower Division and Upper Division cadre and a new cadre of assistants was created as a result of which 50 vacancies became available in the selection grade. 4. Admittedly 21 vacancies were filled up in the manner indicated by the roster without any controversy. Also admittedly there was unification of the Lower Division and Upper Division cadre and a new cadre of assistants was created as a result of which 50 vacancies became available in the selection grade. These vacancies were filled up according to the roster quoted above and the office - vide its office order dated 5-1-1978 issued under the signature of the Deputy Registrar of the High Court under Memo No. 95-152 dated 9-1-1978 (Annexure-51 and modified by the office order No.19 dated 7-4-1978 under the signature of the Deputy Registrar under Memo No. 4489-4527 (Acctts.) dated 21-4-1978 (Annexure-5(1) promoted petitioners Nos.1 to 37 and respondents Nos.5 to 7 to the selection grade. It will be convenient to quote here Annexure 5/1. It reads as follows :- "IN THE HIGH COURT OF JUDICATURE AT PATNA Office Order No. 19 dated 7-4-1978 (A) In continuation of Courts memo No. 96-152. Accounts dated 9-1-1978 the following assistants are also promoted to the posts of selection grade assistant in the scale of pay of Rs.505-15-565-20-665 with effect from "the dates mentioned against their names. (1) Sri Sarjug Pas-wan ... ... 1-3-77 (2) Sri Prem Chand Lal .. ... ... 1-3-77 (3) Sri Ramanand Prasad ... ... ... 19-1-78 (4) Sri Mahendra Pralap Mishra ... 3-4-78 (B) Sri Sarjug Paswan will get the first post of the 47 vacancies besides the first three already promoted earlier from and after 1-3-77 against the Scheduled caste quota. His position in the gradation list of selection grade assistants will be just below Sri Barun Kumar Bhattacharjee and just above Sri. Sheo Muni Ram. Sri Prem Chand Lal will get the 8th of the 47 vacancies besides the first three already promoted earlier from and after 1-3-77 and his position in the gradation list will be just below Sri Bindeshwari Pd. Sheo Muni Ram. Sri Prem Chand Lal will get the 8th of the 47 vacancies besides the first three already promoted earlier from and after 1-3-77 and his position in the gradation list will be just below Sri Bindeshwari Pd. Sinha and just above Sri Shyam Nandan Thakur, Sri Ramanand Prasad and Sri Mahendra Pratap Mishra will lose their respective positions by the persons below them already promoted under office order No.1 dated 5-1-78 and so their position in the gradation list of selection grade assistant after promotion under this order will be just below Sri Janardan Pandey in the order as aforesaid i.e. Sri Ramanand Prasad and Sri Mahendra Pratap Mishra." A perusal of this annexure will show that respondent No.5 was promoted to the first post of the 47 vacancies; besides the first three already promoted earlier and his position in the gradation list of the selection grade assistants was fixed just below Barun Kumar Bhattacharjee and just above Shri Sheo Muni Ram, respondent No.6. Shri Prem Chand Lal (respondent No.7) was to get the 8th post of the 27 vacancies; besides the first three already promoted earlier from and after 1-3-1977 and his position in the gradation list was fixed just below Shri Bindeshwari Pd. Sinha and just above Shri Shyam Nandan Thakur. The result of fixation of the position of respondents Nos. 5 to 7 in the gradation list was that petitioners Nos.1 to 37 were adversely affected. A representation dated 17-1-1978 was, therefore, filed by petitioner No.1 and others. That representation, it appears, was rejected and the petitioners were informed of this by the order as contained in Annexure-7 to this application. 5. The argument of Mr.Ganesh Pd. Singh that selection grade is not a promotion in service as it is in the same cadre and as such. Art.16(4) of the Constitution of India is not attracted and the alternative argument that since promotion to the selection grade was based entirely on seniority-cum-fitness, there was no element of selection and as such, the provision of Art.16(4) of the Constitution is not attracted, are closely connected and can conveniently be dispose of together. In support of his argument, learned counsel referred to paragraph 26 of the decision in the case of General Manager, Southern Railway V/s. Rangachari, AIR 1962 SC 36. In support of his argument, learned counsel referred to paragraph 26 of the decision in the case of General Manager, Southern Railway V/s. Rangachari, AIR 1962 SC 36. This paragraph No. 26 says: "The advancement of the socially and educationally backward classes requires not only that they should have adequate representation on the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. "Learned counsel submitted that the Supreme Court has approved promotion to the selection post in the service and not selection grade in the service. According to him, since selection grade is not a service, therefore, the promotion of respondents Nos. 5 to 7 in preference to his seniors was invalid and as such, should be struck down. Learned counsel also referred to the decision in the case of State of Punjab V/s. Hira Lal, AIR 1971 SC 177 and urged that in this case the Supreme Court only followed Rangacharis case (AIR 1962 SC 36) (supra) without giving any reason. That may be so but the position is that the Supreme Court approved the promotion as Superintendent on the basis of reservation. Mr. Additional Advocate General in reply has said that reservation on non-selection post can also be made and in support of his submission, he has referred to the decision in the case of Akhil Bharatiya Soshit Karamchari Singh (Railway V/s. Union of India, AIR 1981 SC 298 (1980 Lab IC 1325). This decision completely demolishes the argument of Mr. Ganesh Prasad Singh, Mr. Justice Krishna Iyer speaking for the Court in paragraph 91 of his judgment has said: "It was urged that Rangachari, AIR 1962 SC 36 (supra) did not cover non-selection posts and, therefore, could not be an authority to sustain its validity. There is no force in this submission." The promotion to the non-selection post which was on the basis of seniority-cum-suitability was upheld. Learned counsel also referred to the decision tn the case of State of Kerala V/s. N. M. Thomas, AIR 1976 SC 490 :(1976 Lab IC 395) in support of the plea that Art. 16(4) of the Constitution does not cover cases of promotion, as, according to him, it applies only in cases of initial appointment. He referred to paragraph 118 at page 521 of the report. He referred to paragraph 118 at page 521 of the report. It reads as follows:- "When citizens are already employed in a particular grade, as Government servants, considerations relating to the sources from which they are drawn lose much of their importance. As public servants of that grade they could, quite reasonably and logically be said to belong to one class, at least for purposes of promotion in public service for which there ought to be a real "equality of opportunity", if we are to avoid heart burning or a sense of injustice or frustration in this class. Neither as members of this single class nor for purposes of the equality of opportunity which is to be afforded to this class does the fact that some of them are also members of an economically and socially backward class continue to be material, or, strictly speaking, even relevant. Their entry into the same relevant class as others must be deemed to indicate that they no longer suffer from the handicaps of a backward class. For purposes of Government service the source from which they are drawn should cease to matter. As Government servants they would, strictly speaking, form only one class for purposes of promotion." This passage really does not help the petitioners as it was the view of Mr. Justice Beg alone and not the majority view. For these reasons, I do not find any merit in the argument of Mr. Singh. 6 The next argument advanced by learned counsel for the petitioners is that respondents Nos. 5 to 7 were juniors to the petitioners and on promotion to the selection grade they have been made seniors to the petitioners. According to him, this was against the general principle that if a number of persons are promoted in one transaction then their seniority in the lower cadre is carried on promotion. Learned counsel also referred to a Government Circular, which substantially supports him. But it is significant to mention that this Circular has not been adopted by the High Court under Art.229 of the Constitution of India, rather a roster has been drawn up and in that roster it has been determined as to which vacancy will be open and which will go to a member of the Scheduled Caste or to a member of the Scheduled Tribe. That roster has been framed under Art.229 of the Constitution of India and, therefore, the promotion of the employees of the High Court will be made in accordance with that roster. The very idea of drawing up of a roster is to depart from the general principle that seniority in the lower cadre must be reflected on promotion also. Therefore, the argument of Mr. Ganesh Prasad Singh that the gradation list in the selection grade does not determine the seniority of respondents Nos. 5 to 7 cannot be accepted. Mr. Ganesh Prasad Singh, while arguing on the logic of roster said that in certain cases the roster may lead to absurd results. According to him, therefore, the system of promotion by roster should be given a go by. In that connection, learned counsel posed a problem (which does not arise on the facts of this case I, which I am discussing as learned counsel insisted. He said that if in a given case there are five vacancies and according to the roster, the first post is reserved for a member of the Scheduled caste and in the gradation list from which promotions have to be made, the 1st, 2nd, 4th, 5th, 6th and 7th are not members of Scheduled caste; whereas the 3rd and the 8th are the members of the scheduled caste, then according to him the 8th candidate, who is a member of the Scheduled caste will be promoted to the first post and then the first, second, third and fourth persons will be promoted after him. According to learned counsel, therefore, the person occupying the 8th position in the gradation list will become senior to the other member of the scheduled caste, who was occupying the third position and was promoted on the basis of seniority and not on the basis of reservation. I do not think, learned counsel is correct. If the first post, according to the roster, is reserved for a member of the Scheduled caste then the member of the Scheduled caste, who was occupying third position in the gradation list will be promoted first and then the remaining four promotions will go to non-scheduled caste persons, who were occupying serial Nos. 1, 2, 4 and 5. The member of the Scheduled caste who was occupying 8th position in the gradation list will not be promoted at all. 7. 1, 2, 4 and 5. The member of the Scheduled caste who was occupying 8th position in the gradation list will not be promoted at all. 7. For the reasons discussed above, I do not find any merit in the application which is dismissed, but without costs. UDAY SINHA, J. 8 I agree. BRISHKETU SARAN SINHA, J. 9 I agree.