S. B. SINHA, J. ( 1 ) THE petitioners who are three in numbers, have filed this writ application claiming inter alia the following relief:" (A) A writ in the nature of mandamus directing the respondents and each one of them to promote the petitioners to the post of Upper Division Clerk with effect from 1st April, 1984 or 27. 8. 88 with all service benefits. " ( 2 ) THE grievance of the petitioners in short is that although they had been appointed long back and despite the fact that they are members of the Scheduled Caste, their case for promotion has not been taken for consideration although persons similarly situated, have been promoted long back. ( 3 ) ADMITTEDLY, the petitioners filed writ application in this Court which was marked as C. O. 7467 (W) of 1992. Paritosh Kumar Mukherjee, J. directed the learned District Judge to pass an appropriate order upon taking into consideration the relevant circulars issued by the Scheduled Caste and Scheduled Tribes Welfare Department. Learned District Judge by an order dated 31. 3. 93 which is contained in Annexure 'c' to the writ application, stopped all promotion inter alia on the ground that their case could not be considered in view of the fact that their position in the gradation list was 62, 81 and 65 respectively and in that view of the matter, they do not come within the purview of the requisite Zone of consideration. ( 4 ) MR. Bhattacharjee, learned Counsel appearing on behalf of the petitioners, has raised several contentions. Mr. Bhattacharjee submitted that from the records it appears that in 1988, 162 persons were promoted and out of the said promoted candidates 141 were from the general category. Learned Counsel submits that the learned District Judge appears to have not taken into consideration the provisions of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancy in Service and Post) Act, 1976 and in particular section 5 (a) thereof. Learned Counsel pointed out that in paragraph 9 of the Affidavit-in-Opposition it has been stated that 17 persons out of reserved category candidates were promoted from amongst 100 candidates. Mr. Bhattacharjee has also drawn my attention to the supplementary affidavit and submitted that in fact no gradation list had been published. Learned Counsel pointed out that in paragraph 9 of the Affidavit-in-Opposition it has been stated that 17 persons out of reserved category candidates were promoted from amongst 100 candidates. Mr. Bhattacharjee has also drawn my attention to the supplementary affidavit and submitted that in fact no gradation list had been published. ( 5 ) LEARNED Counsel further submitted that one Somnath Saha, however, pursuant to the aforementioned policy decision of the State of West Bengal, was promoted to the post of Upper Division Clerk on 6. 2. 81 although till that date, the Policy decision adopted by the State of West Bengal did not come into force. ( 6 ) MR. Biswas, learned Counsel on behalf of the respondents, however, submitted that the petitioners are not entitled to be promoted as all of them were appointed after 1. 4. 81. It was submitted that keeping in view of the fact that the aforementioned Somnath Saha was appointed prior to 1. 4. 81, he could be promoted to the post of Upper Division Clerk. It was further submitted that although the provisions of the West Bengal Scheduled Caste and Scheduled Tribes (Reservation of Vacancy in Service Post) Act 1976 (hereinafter referred to and called for brevity as the said Act) and the Rules framed thereunder as also the subsequent Government circulars passed thereafter from time to time apply to the establishment in the Judgeship, the petitioners being placed far below the Zone of consideration, their case could not be considered. ( 7 ) ADMITTEDLY, the petitioners were appointed on 22. 5. 81, 6. 12. 82 and 2. 11. 81 respectively whereas the aforementioned Somnath Saha was appointed as a Lower Division Clerk on 6. 2. 81. ( 8 ) IT is also not in dispute that the State of West Bengal issued the Circular dated 31. 3. 84 with a view to improve the promotional prospect to the post of Upper Division Assistants with effect from 1. 4. 1984 at the ratio of 1:1 which is applicable to all the Establishments of the State of West Bengal. By another Memo bearing No. 5278-F dated 3. 5. 84, the State directed that the Rules for filling up of the vacancy by applying with the reservation policy of the State for Scheduled Caste and Scheduled Tribes Candidates would also be applicable to the entire State of West Bengal. By another Memo bearing No. 5278-F dated 3. 5. 84, the State directed that the Rules for filling up of the vacancy by applying with the reservation policy of the State for Scheduled Caste and Scheduled Tribes Candidates would also be applicable to the entire State of West Bengal. ( 9 ) THERE cannot be any doubt that the employee of the State which included employees working in the establishments of the District Judges of the various districts, are governed by the Service Rules framed by the State in exercise of its power under the proviso appended to Article 309 of the Constitution of India. The law with regard to the reservation of posts for Scheduled Caste and Scheduled Tribes is governed by the said Act. The said Act having been enacted in terms of Clause 4 of Article 16 of the Constitution of India, the circulars issued by the State either by framing of Rules or by issuing executive instructions under Article 162 of the Constitution of India, are binding upon the appointing authorities. It is now beyond any manner of doubt that in the matter of appointment, Clause 4 of Article 16 of the Constitution empowers the State to make any provision for reservation of post in favour of any Scheduled Caste and Scheduled tribe candidate of Backward Class of Citizen which to the opinion of the State is not adequately represented in each service. Although Clause 4 of Article 16 of the constitution of India does not confer any fundamental right on any citizen, but is merely an enabling provisions; but once the State which acts in terms of the said provision, the scheme for appointment in the Post of reserved categories has to be implemented by all concerned. ( 10 ) THE said Act was amended by West Bengal Scheduled Caste and Scheduled Tribes (Reservation of Vacancy in Service and Post) Amendment Act, 1992 in terms whereof dereservation was prohibited by any appointing authority except by an order of the State. The said Act further states that if a reserved vacancy cannot be filled up in the absence of any qualified Scheduled Caste and Scheduled Tribe Candidate, the vacancy was to remain unfilled. ( 11 ) IT is not in dispute that with a view to give effect to its reservation policy, the State introduced a 20% roster system. The said Act further states that if a reserved vacancy cannot be filled up in the absence of any qualified Scheduled Caste and Scheduled Tribe Candidate, the vacancy was to remain unfilled. ( 11 ) IT is not in dispute that with a view to give effect to its reservation policy, the State introduced a 20% roster system. The said 20% roster system was enhanced to 50% roster by reason of a notification issued in the year 1990 which came into force with effect from 27. 4. 90. The Legislature of the State of West Bengal also amended the schedule of the said Act in the year 1994 being Act No. XLII/94 in terms whereof the policy of 20% roster was changed to 50% roaster. ( 12 ) THE said 1994 Act came into force with effect from 16. 1. 95. It is not the case of the respondents that the reservation policy is not to he given effect to. The learned District Judge in the impugned order however observed that at the relevant time, there existed three vacancies for the Upper Division Clerk and nine vacancies have already been filled up upon following the 50% roster. Learned District Judge in the impugned order pointed out that the 10th, 11th and 12th vacancy of the said roster are to be filled up one of which the 11th vacancy was reserved for the scheduled caste candidate and the 10th vacancy for general was carried over once. ( 13 ) LEARNED District Judge was of the opinion that if no scheduled caste candidate was available, the same shall be filled up by a general vacancy. He further came to the conclusion that in view of the fact that there existed three vacancies, keeping in view the law relating to the zone of consideration, only 15 candidates would be considered for promotion. Learned District Judge appears to have misread the provision of the said Act and the Rules framed thereunder. ( 14 ) IT is true that the circular letter of the State which provided for grant of promotion to the eligible candidates with effect from 1. 4. 84 which later on modified to have effect from 1. 4. 81, is not applicable in the case of the petitioners nor the circular letter of the State defining the word 'status quo' has any applicability in their case. 4. 84 which later on modified to have effect from 1. 4. 81, is not applicable in the case of the petitioners nor the circular letter of the State defining the word 'status quo' has any applicability in their case. But the fact remains that the petitioners are candidates belonging to the Scheduled Caste. The District Judge unfortunately failed to consider the question that the petitioners being of reserved category candidates cannot be considered along with the general category candidates. The case of the petitioners being reserved category has to be considered independently by applying roster system as introduced by the State of West Bengal from time to time as noticed hereinbefore. ( 15 ) ONLY in the event, the entire roster is exhausted, the employer can treat one year as a unit and fill up the vacancy in terms thereof. It is not the case of the respondents in their counter affidavit that the entire vacancy has been filled up by applying roster system. ( 16 ) THE petitioners in the writ application have categorically stated that they are not aware of existence of any gradation list. ( 17 ) IT was the statutory obligation on the part of the District Judge to prepare a proper gradation list. The petitioners admittedly are confirmed employees. ( 18 ) HOWEVER, so far as the seniority of an employee is concerned, the same cannot be accounted from their respective date of confirmation, but has to be accounted from the date of their respective permanent appointment. This aspect of the matter has been considered by the Supreme Court in Pran Krishna Goswami and Others v. State of West Bengal and Others reported in AIR 1985 SC 1605 and in P. D. Agarwal and Other v. State of U. P. and others reported in AIR 1987 SC 1676 . If any final gradation list has not been published, it is difficult to understand as to how and on what basis the respondent District Judge had refused to consider the petitioners' case for promotion. ( 19 ) IT may be mentioned that according to the petitioners in the year 1988, 162 candidates were promoted and out of such promoted candidates, 141 belonged to general categories. It may be true that in the year 1988, 20% roster system was invoked but as indicated hereinbefore from the year 1990, the 50% roster system is in vogue. ( 19 ) IT may be mentioned that according to the petitioners in the year 1988, 162 candidates were promoted and out of such promoted candidates, 141 belonged to general categories. It may be true that in the year 1988, 20% roster system was invoked but as indicated hereinbefore from the year 1990, the 50% roster system is in vogue. ( 20 ) IN R. K. Sabharwal and Others v. State of Punjab and Others reported in (1995) 2 SCC two points were raised by the Supreme Court of India. (1) The object of reservation is to provide adequate representation to the Scheduled Caste/tribes and Backward Classes in service and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that for working out of percentage of reservation the promotees appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the reserve posts are to be counted. In other words if more than 14% of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit seniority by competing with the general category candidates then the purpose of reservation in the said cadre having been achieved, the Government instructions providing reservations would become inoperative. (2) Once the posts earmarked for the Scheduled Castes/tribes and Backward Classes on the roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category reserve or general-due to retirement etc. of whose member the post full vacant. " Answering the first point the Supreme Court held:- "when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from against the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16 (4) of the Constitution of India permits the State Government to make any provision for the reservation of appointment or posts in favour of any Backward Class of Citizens which, in the opinion of the State is not adequately represented in the services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the state services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be tilled by way of appointment/promotion of the member of the said class. ( 21 ) IT is not necessary for the purpose of disposal of this case to consider the second question raised before the Apex Court in this application. This matter has also been considered by me in two recent decisions in Premananda Pramanik v. The Hon'ble Chief Justice, High Court, Calcutta and Others being C. O. 14547 (W) of 1994 and in Somenath Mukherjee and Others v. State of West Bengal and Others being C. O. No. 2051 (W) of 1993 disposed of on 5. 9. 1995. ( 22 ) IT is profitable to note that the Supreme Court recently in the Government of A. P. and Others v. Bala Musalaish and Others reported in 1995 (70) FLR page 301 observed as follows:"according to us, the principle and policy behind the reservation would be adequately met and would received constitutional Approval, if, while retrenching the employees, the roster followed while making appointments if adhered to. To elucidate, if the roster is operated backward (which we shall call recycled) and if the employee to be retrenched as per normal principle be on a non-reserved point, a reserved category candidate would not be retrenched, even if as per general rule of 'last is first out' he would have been required to be retrenched. To state it differently, a reserved category candidate would be retrenched only when on the recycled path the reserved point is reached. This mode of following roster would adequately protect the reserved category candidate inasmuch as their percentage in the service or cadre would remain as it came to be when appointments were made. To explain further, if in the cadre or service reserved category candidates where holding, say seven posts, and seven persons are required to be retrenched, the reserved category employees would not be retrenched even when they be the last seven as per the seniority list, which would have otherwise happened on following the normal principle. Instead of the seven reserved category candidates being retrenched as per the normal principle, the reserved category candidate on the recycled roster point alone would be retrenched, because of which the percentage of representation of such candidates in the service, as it got reflected in appointments made following the roster, would remain unaffected. May we mention that the reservation in appointment, to effectuate which roster is prepared, makes an incumbent of the reserved category senior to the general category incumbent, as, though lower in merit the former gets appointed earlier as per the roster point. This in itself protects to some extent the interest of the listed category candidates, as under the normal rule, the retrenchment starts from the junior most employees and it travels back step by step. " ( 23 ) IT is really not understandable as to how a person who became a lower division clerk on 6. 2. 81, could be promoted to the higher post although he did not complete at least three years of service before 1. 4. 81. The petitioners, admittedly, joined the service as lower division clerks immediately after Shri Somnath Saha. Even in the case of Somnath Saha, the promotion policy of the State was not attracted nor could he be promoted with effect from 1. 4. 81. 4. 81. The petitioners, admittedly, joined the service as lower division clerks immediately after Shri Somnath Saha. Even in the case of Somnath Saha, the promotion policy of the State was not attracted nor could he be promoted with effect from 1. 4. 81. Be that as it may, this Court is not concerned with the promotion of Shri Somnath Saha, but the said fact is being mentioned only for the purpose of showing that if a person who entered into service on 6. 2. 81, could be considered for promotion, it does not stand to any reason how the petitioners who had been appointed on 22. 5. 81, 6. 12. 82 and 2. 11. 81 and thus put in about 14-15 years of service, could not be considered for promotion despite the fact that they belong to reserved category. As indicated hereinbefore while considering the matter relating to the grant of promotion, to reserved category candidates, the cases of general candidates must be excluded. The zone of consideration in that view of the matter, should be considered and thus considered, it must mean that while following the rule of zone of consideration, the question of consideration of the general candidate while filling up the posts for reserved category candidates are ruled out. The zone of consideration only confines to those persons who belong to the reserved category candidates. ( 24 ) THE submission of Mr. Biswas that the seniority of the eligible candidate was to be considered on the basis of their respective dates of confirmation cannot be accepted in view of the decision referred hereinbefore. ( 25 ) THE submission of Mr. Biswas to the effect that in case of Shri Somnath Saha, the learned District Judge also appears to have misdirected himself in so far as he misread the circular letter dated 18. 6. 88 with regard to the grant of status quo. The said direction for maintenance of status quo was passed by the State of West Bengal only in relation to those candidates who were although not eligible for promotion on 1. 4. 81 and were in fact promoted, but keeping in view of its subsequent decision to comply with the circular of the State which came into force with effect from 1. 4. 81, they should not have been reverted back. 4. 81 and were in fact promoted, but keeping in view of its subsequent decision to comply with the circular of the State which came into force with effect from 1. 4. 81, they should not have been reverted back. Somnath Saha was not promoted in the year 1984 but promotion was given to him at later date. In that view of the matter, the aforementioned circular of the State was not attracted. ( 26 ) FOR the foregoing reasons, it must be held that the learned District Judge failed to pose unto himself the correct question so as to enable him to be guided with the correct fact and thus he misdirected himself in law. He has failed to take into consideration the relevant facts and has passed his order on the relevant and extraneous consideration and thus the impugned order cannot be sustained. This application is therefore allowed. The impugned order as contained in Annexure 'c' to the writ application i. e. the order dated 31. 3. 93 is set aside. ( 27 ) LEARNED District Judge is hereby directed to prepare a gradation list in accordance with law, if not already prepared and consider the case of promotion of the petitioners in the light of the observations made hereinbefore. However, in the facts and circumstances of the case, there will be no order as to costs. Such consideration should be made at an early date and preferably within a period of 8 weeks from the date of communication of this order. 26. Learned District Judge, however, without disturbing the promotion which have already-been made, may consider the question as to whether the petitioners in view of the fact that the roster system had not been followed, can be granted promotion with retrospective effect in accordance with law. Application allowed.