Jamuna Jha v. State of Bihar — 1985 DIGILAW 320 (PAT)

JUDGMENT : Uday Sinha, J.-These are two writ petitions under Articles 226 and 227 of the Constitution. Prayer has been made for quashing Annexures-4 and 8 in C. W. J. C. No. 3021 of 1981 and Annexure-5 in C. W. J. C. No. 244 of 1982. The real prayer, however is for quashing the promotion of respondents 6, 7 and 8 in the former petition and respondents 5 to12 in C. W. J. C. No. 244 of 1982. Respondents 5, 6 and 7 in the said application have been impleaded as respondents in C. W. J. C. No.3021 of 1981 as well. 2. The brief is bulky but the real point in issue is rather simple. But in ORDER :to dispose of the two writ applications, the recital will bring out that the petitioners have no case to agitate. 3. The Registration Department in this State of Bihar forms part of Revenue Department. In the beginning the Registration Department consisted of officers of various grades. They were Sub-Registrars, District Sub-Registrars, Inspector of Registration, Selection grade Sub-Registrars etc. These posts were bngei filled up in ORDER :of seniority dove-tailed by the Rules of Reservation for Scheduled Castes and Scheduled Tribes. Scheduled castes were to be appointed/promoted in the ratio of 14% and Scheduled tribes in the ratio of 10% of the strength of the cadre. The working out of the promotion consisting with reservation brought out several anomalies which led to filing of several writ applications. One of them was C. W. J. C. No. 1464 of 1977. In that application a counter-affidavit was filed on behalf of the State on 22.8.1979. It was stated in that counter-affidavit that the facts stated in that alone, were the correct facts and represented the true picture of state of affairs in the Registration Department. The then learned Government Pleader Mr. Tarkeshwar Dayal stated that the counter-affidavit filed in that writ application on 9.3.1978 may be ignored. In the counter-affidavit filed in that case, it was stated that Annexures-1, 2 and 3 of that writ application which were circular dated 14.2.1976 (Personnel Department), No. 46 dated 11.3.1972 (Appointment Department) and Government Resolution No. 382/111/71-9277 dated 29.5.1971 ceased to have any effect, as the entire cadre of Inspectors, Sub-Registrars, District Sub-Registrars and Selection Grade District Sub-Registrars had been merged to form one uniform cadre. This was effected by Finance Department Resolution No. 4013 dated 28.4.1977. This was effected by Finance Department Resolution No. 4013 dated 28.4.1977. There were 148 posts in the cadre, 25 posts of which were selection grade posts with higher scale of pay. Promotion to the selection grade would be done in accordance with the rule of seniority consistent with merit and reservation. The only post above these 148 posts was that of Deputy Inspector General of Registration. That post could be filled up in accordance with a roster. A roster was prescribed for promotion-to selection grade as well. 4. In terms of the Government Resolution, mentioned above, as referred to in the counter-affidavit of the State filed on 22.8.1979, the question of reservation would arise only in the matter of initial appointment and in the matter pf promotion to selection grade posts. No objection could be raised to the principle of reservation. Thus the question of injustice wrought by the principle of reservation did not arise. In view of the above statements by the then learned Government Pleader and Mr. Sorejendu Mukherjee, counsel for the petitioners respondents, learned counsel for the petitioners stated that the petitioners would have no grievance with these state of affairs. It would be useful here to quote part of paragraph 3 and paragraph 4 of that JUDGMENT : which read as follows : "In view of the statements of learned Government Pleader and Mr. Sorejendu Mukherjee that there was no question of reservation in the matter of promotion from post of Sub-Registrar to District Sub-Registrar (which are not in the selection grade) and that promotion to selection grade would be made on the basis of seniority-cum-merit-cum-reservation, learned counsel for the petitioners stated that he could have no grievance with these state of affairs as contained in Annexure-R1/E to the counter-affidavit filed on behalf of the State. There can be no doubt that Annexure-R1/E holds the field and the Department has been functioning on the basis of this annexure. Any ORDER :to the contrary passed earlier in relation to the Registration Department must be considered a dead letter. The petitioners cannot make any grievance in respect of Annexures-5 and 7 because they are mere transfer ORDER :s without conferring any higher status or emoluments on the respondents." 5. Any ORDER :to the contrary passed earlier in relation to the Registration Department must be considered a dead letter. The petitioners cannot make any grievance in respect of Annexures-5 and 7 because they are mere transfer ORDER :s without conferring any higher status or emoluments on the respondents." 5. The JUDGMENT : in the aforesaid writ application should have set at rest all controversies, but curiously the petitioners have once again challenged the seniority of respondents 6 to 8. The promotion of Ram Baran Prasad (respondent No. 6 in C.W.J.C. No. 3021 of 1981) probably triggered the filing of the said application. The petitioners in the said application claimed that they were also entitled to be considered for promotion to the post of Deputy Inspector General of Registration, but their names were not forwarded to the Bihar Public Service Commission as they had not been promoted to selection grade District Sub-Registrars. They alleged that the posts of selection grade District Sub-Registrars were vacant and available under the Registration Department and the petitioners having been found fit for promotion, they were entitled to be promoted to the selection grade posts. They have therefore, prayed for quashing Arinexure-4 in C.W.J.C. No. 3021 of 1981 which is the gradation list of officers in the Registration Department. 6. Mr. Yogendra Mishra, learned counsel for the petitioners submitted that it had been adjudicated in C.W.J.C. No. 1464 of 1977 that all notifications and ORDER :s except the resolution of 1977 had become 'dead letter’. Therefore, the principles of reservation and roster were no longer applicable. That being so, the petitioners having entered the. Department prior to the respondents were entitled to rank senior to them and, therefore, they should have been granted promotion to selection grade posts and their names should have been sent to the Bihar Public Service Commission for consideration for promotion to the post or Deputy Inspector General of Registration. 7. The submission urged on behalf of the petitioners is based upon some confused thinking. It is not necessary for me to go into the question as to whether the petitioners entered the Department earlier or the respondents. The position is that on 1-5-1977, the cut off date in terms of Government resolution of April, 1977, all the petitioners and the respondents were in Class II service of the Registration Department. It is not necessary for me to go into the question as to whether the petitioners entered the Department earlier or the respondents. The position is that on 1-5-1977, the cut off date in terms of Government resolution of April, 1977, all the petitioners and the respondents were in Class II service of the Registration Department. The respondents were in the reserved category and the petitioners were in the non-reserved category. On 1.5.1977 on the principle of reservation Ram Baran Prasad, Samual Guria, Sushi Lakra, Jagannath Prasad, Bikrama Prasad and Joikim Barla the six seniormost among reserved candidates would fill the reserved posts in, the selection grade. It is, worthwhile mentioning that in the selection grade posts of twenty five, 24% would mean six posts. Thus all the aforesaid six incumbents would get the selection grade posts. The petitioners, however, could stake their claim only to the non-reserved posts in the selection grade and that too only if their seniority amongst the non-reserved officers merited. Since there were others in non-reserved category senior to the petitioners, they could not get the selection grade posts. They can, therefore, make no grievance of the respondents having been awarded selection guide posts. The reserved candidates would fill the reserved quota and the non-reserved could take a place only in non-reserved section. Learned counsel for the petitioners had to concede, though after, much explaining that they were not entitled to selection grade post on 1.5.1977. The position is thus clear that the petitioners of C. W. J. C. No. 3021 of 1981 have no case to agitate as against respondents Ram, Baran Prasad, Samual Guria and Sushil Lakra (respondents 6 to 8). Similarly the petitioners of C. W. J. C. No. 244 of 1982 have no case to agitate against respondents 5 to 9 and 11, namely, Ram Baran Prasad, Samual Guria, Sushil Lakra, Jagannath Prasad, Bikrama Prasad and Joikim Barla of that application. The position in regard to respondent No. 10 Dayanand Anand and respondent No. 12 Hem Chand Arya (of C.W.J. C. No. 244 of 1980) is slightly different and will have to be dealt with separately. 8. Annexure-1 to C. W. J. C. No. 3021 of 1982 shows that the amalgamation of cadres in Class II services in Registration Department was to be, completed in three stages. That, however, is not relevant for us. 8. Annexure-1 to C. W. J. C. No. 3021 of 1982 shows that the amalgamation of cadres in Class II services in Registration Department was to be, completed in three stages. That, however, is not relevant for us. From what date which respondents would be entitled to selection grade after 1.5.1977 is a different question into which I need not enter for the simple reason that six places in selection grade were to be filled up by reserved candidates. The petitioners in any of the two applications would have no claim to them. The petitioners could get them only if reserved candidates were not available. It is undisputed that on the relevant dates reserved candidates were available. C. W. J. C. No.3021 of 1981 must be rejected on this short ground. C. W. J. C. No. 244 of 1982 must also be dismissed against respondents 5 to 9 and, if for the same reason. 9. The next question which falls for consideration is whether the grant of selection grade to respondents Dayanand Anand and Hem Chand Arya, respondents 10 and 12 respectively in C. W. J. C. No. 244 of 1982 was justified and valid. In this behalf we shall be concerned only with C. W. J. C. No. 244 of 1982. They were given selection grade posts in the scale of Rs. 620-1415 by Annexure 5 dated 15.1.1982. Their appointments were supported on the footing that in accordance with the roster prepared by the State Government, they will be entitled to the 22nd and 23rd posts, and, therefore, their promotion to that grade was valid. 10. The uncontroverted position is that respondents 10 and 12 were appointed to the selection grade on the basis of the roster. It is also true that consequent upon their promotion the percentage of reserved candidate shot from 24% to about 33 percent, but that is no ground for assailing their appointment. The substantive rule is that reserved category candidates shall constitute 24%. The validity of reservation could not and has not been challenged. The roster called out is only a method of implementing the policy of reservation. At first sight it appears incongruous that the benefit of reservation should go above 24%. But this incongruity disappears when it is appreciated that at some point of time the quota of reserved candidate may fall below 20%. The roster called out is only a method of implementing the policy of reservation. At first sight it appears incongruous that the benefit of reservation should go above 24%. But this incongruity disappears when it is appreciated that at some point of time the quota of reserved candidate may fall below 20%. In that view of the matter, the roster system is not vulnerable to attack. It is meant to effectuate the policy behind reservation. It cannot, therefore, be held to be contrary to Article 16 of the Constitution. The Supreme Court was seized of a similar situation in Hira Lal versus The District Judge, Ghaziabad and others : A. I. R. 1984 Supreme Court 1212. In that case the reservation quota appeared to have shot up to 21% when the prescribed quota was only 18%. In that situation, the Supreme Court observed as follows. "The stand taken in the counter-affidavit that more than 21 % of the posts in the Grade III cadre of the judgeship were being manned by the people belonging to the scheduled castes at the relevant time is no answer to the prescription of the roster. It is not known whether some of the recruits of earlier years already in service belonging to the scheduled castes had come On the basis of overall merit without reference to reservation." In view of the decision of the Supreme Court, quoted; above, the challenge to the grant of selection grade post to Dayanand Anand and Hem Chand Arya lacks substance. 11. Another matter agitated by the petitioners is whether the petitioners in the two writ applications were entitled to be recommended to the Bihar Public Service Commission for consideration of their names for promotion to the pest of Deputy Inspector General of Registration. In this behalf the question of seniority in the selection grade does net arise. The petitioners are in the non-reserved quota and the respondents are in the reserved quota. The pest is only one. In this behalf paragraph 3 of the circular quoted earlier provides that where there is only one post, the roster will be worked out in this manner that the second vacancy will be filled up by non-reserved candidate. Prima-facie, there is no reason not to accept this rule as valid. The pest is only one. In this behalf paragraph 3 of the circular quoted earlier provides that where there is only one post, the roster will be worked out in this manner that the second vacancy will be filled up by non-reserved candidate. Prima-facie, there is no reason not to accept this rule as valid. Learned counsel for the petitioners brought to our notice an unreported decision of this Court in N. Amanullah versus The State of Bihar and others : C.W.J.C. No. 4637 of 1983 disposed of on 14.6.1984 ( 1984 PLJR 863 ) and contended that there cannot be reservation if the pest is only one. I regret, the decision of this Court does net help the petitioners. That was a case where the post was ex-cadre. Their Lordships definitely held that the pest of Engineer-in-Chief (Building) was ex-cadre pest. Their Lordships also held that the State Government had not taken any formal decision, to apply the principle of reservation in respect of ex-cadre pest. Their Lordships, therefore, held, and if I may so rightly as fellows : "As I have already pointed out above that the pest of Engineer-in-chief being an ex-cadre pest, cannot be filled up en basis of reservation." The position is entirely different in the instant case. The post of Deputy Inspector General of Registration is obviously in the cadre and is a promotional post. Annexure-6, 7 and 8 in C.W.J.C. No. 3021 of 1981 clearly show that they are promotional posts. Being promotional they are not selection posts nor outside the cadre. The petitioners in C. W. J. C. No.3021 of 1981 have accepted in paragraph 18 that the post of Deputy Inspector General of Registration is to be filled up by promotion. It is thus obvious that the post of Deputy Inspector General of Registration is in the cadre and not ex-cadre. The decision of N. P. Singh and M. P. Varma, JJ, therefore, was on entirely different situations. It has no relevance. The reservation policy, although one in respect of one post cannot be struck down. We were informed at the Bar that the first vacancy of Deputy Inspector General of Registration was filled up by non-reserved candidate. The second should have been filled up by a reserved candidate, but since no reserved candidate possessing the requisite qualifications was available, that also was filled up by non-reserved candidate. We were informed at the Bar that the first vacancy of Deputy Inspector General of Registration was filled up by non-reserved candidate. The second should have been filled up by a reserved candidate, but since no reserved candidate possessing the requisite qualifications was available, that also was filled up by non-reserved candidate. Thereafter Ram Baran Prasad had been appointed as he fulfilled all the requirements. In that view of the matter, the attack on the principle of reservation or the applicability of the roster for the post of Deputy Inspector General of Registration is without substance and must be rejected. 12. For the reasons, stated above, I find no merit in any of the applications and they are dismissed accordingly. There shall be no ORDER :as to costs. Applications dismissed.