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1995 DIGILAW 553 (ALL)

ER K P TRIPATHI v. STATE OF U P

1995-05-05

PALOK BASU, R.K.SINGH

body1995
PALOK BASU, J. The questions involved in the first writ petition filed by Sri K. P. Tripathi and others is as to whether the direction contained in the memorandum dated 13-3-1995 (Annexure 8-A) as issued by the Chairman, State Electricity Board is valid to the extent it involves promotion of Sche duled Castes and Scheduled Tribes Executive Engineers to the post of Superin tending Engineers on determined reserved quota, and whether the reservations if valid, could be increased by subsequent order of the State Government and adopted by the Board for the promotional posts of Superintending Engineers ? The question in issue in the other two writ petitions do not relate to promo tional post but challenge the power of the U. P. State Electricity Board (for short the Board) to pass orders of confirmation in favour of the candidates in the Assistant Engineers belonging to the Scheduled Castes and Scheduled Tribes to the extent the petitioner stand affected. As agreed by the learned counsel for the parties all the three writ petitions have been heard together because the matter has assumed importance inasmuch as some of the interim orders passed in the later two writ petitions have stopped further promotions of all the candidates eligible for it whether belonging to general category or to the category of Scheduled Castes and Scheduled Tribes. Counter-affidavit and rejoinder affidavits as well as supplementary affidavits by all the parties have been filed in the later two writ petitions but so far as first writ petition is concerned a counter-affidavit and supplementary affidavit by one of the opposite parties, namely Sri Balram Verma, have initially been filed. It may be mentioned that notice on behalf of the Board was accepted by Sri Sashi Nandan, Advocate on 20-3-1995. At the time of arguments, the Board has been represented by Shri S. M, A. Kazmi in the first writ petition as learned Standing Counsel for the Board while in the other two by Shri S. P. Mehrotra, Subsequently however, a counter-affidavit on behalf of the Board has also been filed to which a rejoinder affidavit has also been filed on behalf of the peti tioners in the first writ petition. Sri Rakesh Dwivedi, assisted by Sri Sailendra, has appeared on behalf of the petitioners in all the petitions while Sri Sudhir Chandra, Sri A. K. Yadav, Sri Subhash Budhwar have argued the case on behalf of private respondents in all the three writ petitions. As agreed by the learned counsel for the parties all the three writ petitions are being disposed of finally at this stage. 2. Coming to the facts involved in the first writ petition it may be stated here that origin of the controversy in this case has long history to narrate. A Division Bench of the Lucknow Bench of this Court passed final orders in the two writ petition (Writ Petition No. 47 of 1984, B. P. Kuril v. Board and Writ Petition No 1003 of 1985, U. P. Rajya Vidyut Parishad (SC, ST) Karmchari Kalyan Sanzh v. Board, and by its judgment and order dated 5-3-1987 partly allowed the petitions. The relevant portion of the judgment should be quoted here :- "in view of the above the writ petition are partly allowed and a writ of mandamus is issued commanding the Board and its authorities to consider the claim of executive engineers belonging to the Scheduled Castes and Scheduled Tribes who fulfil the eligibility qualification for promotion to the post of Superintending Engineer in accordance with law and the observations made hereinabove. It is specifically directed that the suitability and merit of the members of the Scheduled Castes and Scheduled Tribes, including petitioner B. P. Kureel, shall be judged by comparing the same with Executive Engineers belonging to the general category. The costs in the two petitions shall be easy. " 3. It appears that some of the Engineers belonging to the general cate gory felt aggrieved by the aforesaid judgment. They and some others filed review petition which came to be numbered as Review Petition No. 75 (w) of 1987, Review Petition No. 76 (w) of 1987 and Review Petition No. 117 of 1987. In the first two review petitions the U. P. State Electricity Board was the applicant while in the third Sundar Lal and some other candidates of the general category were the applicants in which U. P. Rajya Yidyut Parishad (SC, ST) Karmchari Kalyan Sangh and others were opposite parties. 4. In the first two review petitions the U. P. State Electricity Board was the applicant while in the third Sundar Lal and some other candidates of the general category were the applicants in which U. P. Rajya Yidyut Parishad (SC, ST) Karmchari Kalyan Sangh and others were opposite parties. 4. It would have been better to go into respective cases pleaded by all concerned claiming review of the said judgment, but since the matter has later on engaged the attention of the Honble Supreme Court, the arguments advanced in the review petitions are omitted. Suffice it to say that the opera tive portion of the judgment in the review applications reads as under :- "in view of the above the review applications are allowed and the judgment and order dated 5th March, 1987 rendered in Writ Petition Nos. 47 of 1984 and 1003 of 1985 is hereby set aside. That judgment will stand substituted by the present judgment whereby we partly allow the writ petitions and issue a writ of mandamus to the U. P. Electricity Board and its authorities and hereby command that they will consider the claim of Executive Engineers belonging to the Scheduled Castes and Scheduled Tribes who possess the qualifications prescribed in Rule 3 of the U. P. State Electricity Board Services of Engineers Regulations, 1970 for promotion to the post of Superintending Engineer, if they fall in the zone of consideration, in accordance with law and the obser vations made hereinabove. The cost in the review petitions and in the writ petition shall be easy. 5. Civil Appeal No. 4026 of 1988 was filed before the Honble Supreme Court by U. P. Rajya Vidyut Parishad (SC, ST) Karmachari Kalyan Sangh. It appears that on other writ petition as well as one other S. L. P. was connected with the same. The aforesaid special appeal has been disposed by their Lord ships of the Supreme Court finally on 23-11-1994. Some of the observations in the said judgment have binding effect and both the parties have sought interpretation of the same in one way or the other calling upon this court to indicate its opinion as to the effect of the Honble Supreme Courts judgment. Some of the observations in the said judgment have binding effect and both the parties have sought interpretation of the same in one way or the other calling upon this court to indicate its opinion as to the effect of the Honble Supreme Courts judgment. The relevant portion in the aforesaid judgment of the apex court is as under :- "we concluded the argument in this case on November 16,1994 passed following order : "we have concluded hearing argument. We are prima facie in agreement with. the contention of the learned counsel for the applicant that there has to be separate zone for consideration so far as SC, ST candidates are concerned. Clubbing Sche duled Castes with general category in the same zone of consideration would defeat the very purpose of reservations. Mr. B. Sen, learned senior counsel, appearing for the Board, stated that he would like to place the matter before the Board and seek further instruction from the Board. . . . . . . . " 6. Thereafter, Their Lordships have quoted paragraphs 5, 6 and 7 from the affidavit of one Mr. A. M. Rawal on behalf of State Electricity Board which was filed before the Supreme Court on 22-11-1994. Then Their Lord ships have made the following observations :- "in view of the averment made in the affidavit quoted above, it is not necessary for us to go into various questions canvassed before us as they have been substantially met by the Board. In view of the stand taken by the Board in its aforesaid affidavit, the judgment of the High Court has become redundant and it shall not be operative. The appeal is disposed of with no order as to costs. In view of the order passed in O. A. No. 4078 of 1988 the writ petition and Special Leave Petition are disposed of. " 7. It transpires that the petitioners have grievances against the aforesaid office memorandum dated 13- 3-1995 (Annexure 8-A) in the first writ petition. It may be mentioned that by the aforesaid memorandum dated 13th March, 1995 nine Executive Engineers have been promoted to the post of Superintend ing Engineers. 8. It was contended on behalf of the petitioners that the aforesaid order promoting 9 respondents as Superintending Engineers is not permissible because no reservation could be extended to the promotional posts of Superin tending Engineers. 8. It was contended on behalf of the petitioners that the aforesaid order promoting 9 respondents as Superintending Engineers is not permissible because no reservation could be extended to the promotional posts of Superin tending Engineers. It is not denied that the post of Superintending Engineers is a promotional post. It is argued that in view of the decision of the Honble Supreme Court in the Indra Sawhneys case reported in AIR 1993 SC 477 , in spite of the judgment of Honble B. P. Jeewan Reddy, J. reservation in promo tion is not permissible. In this connection reliance was placed on some of the observations of other Honble Judges in the said judgment. The other argu ment advanced is that the Board has by means of Regulations of 1989 declared that unless the Board passes specific resolution adopting some of the Govern ment G. Os. or B, O. passed earlier, resolution or G. O, regarding reservation shall not be extendable to any of the candidates. 9. It may be mentioned here that on behalf of the Board as well as private respondent, it was contended that the aforesaid judgment of the Supreme Court does not permit this court to go into any issue concerning reservation in promotion to the post of Superintending Engineer particularly because the zone of consideration for SC and ST candidates was a different zone than the zone for general candidates. It was further argued on behalf of opposite parties that it will not be permissible for this court to take any independent decision concerning the observations of the Honble Supreme Court quoted above. 10. On behalf of the petitioners, reliance was placed on the decision of the Supreme Court reported in AIR 1976 SC 997 ; AIR 1970 All 251 ; 1989 (1) SCC 101 and 1991 (4) ACC 139 to demonstrate that the judgment of the Honble Supreme Court quoted above will not have any presidential value. In this connection it was contended vehemently that a judgment made on concession can not have even persuasive value. 11. It may be stated here that from what has been observed by the Honble Supreme Court, the judgment of the Lucknow Bench of this Court has been interpreted to cease to exist as it became redundant after the Boards decision was indicated to the apex court by the affidavit of Sri Rawal. 11. It may be stated here that from what has been observed by the Honble Supreme Court, the judgment of the Lucknow Bench of this Court has been interpreted to cease to exist as it became redundant after the Boards decision was indicated to the apex court by the affidavit of Sri Rawal. Of course this would show that the original judgment of the Lucknow Bench stands restored. In any case, the separate zone for SC/st candidates was thought absolutely necessary by the apex court when their Lordship used the expression :- "we ate prima facie in agreement with the contentions of the learned counsel for the appellant that there has to be separate zone for consideration so far as SC/st candidates are concerned. Clubbing Scheduled Castes with the general category in the same zone of consideration would defeat the very purpose of reservation. " 12. So far as this Court is concerned it is bound by the aforesaid obser vations. It may further be added that further observations of this Honble Apex Court before disposing of the case to the effect that "the judgment of the High Court has become redundant and it shall not be operative" has but only one meaning that the subsequent judgment of the Lucknow Bench review ing its earlier judgment in the petition has become non-existent. 13. In view of the aforesaid determination of the point involved, it is no more permissible to hold that separate zone for Scheduled Castes and Scheduled Tribes candidates cannot be created. Under the circumstances, the promotion to the post of Superintending Engineer has got to be made from out of the general candidates entering the field of eligibility within the zone of consideration and likewise from out of the SC/st candidates entering the field of eligibility but within the separate zone of consideration for those candidates. 14. It was however argued on behalf of the petitioners that in any case, the number of SC/st Executive Engineers cannot be extended beyond the percentage of the reservation limits which were prevailing on the date of judgment of the Supreme Court in Indra Sawhneys case (supra) reliance was placed on the following observation of Honble Mr. 14. It was however argued on behalf of the petitioners that in any case, the number of SC/st Executive Engineers cannot be extended beyond the percentage of the reservation limits which were prevailing on the date of judgment of the Supreme Court in Indra Sawhneys case (supra) reliance was placed on the following observation of Honble Mr. Justice B. P. Jeevan Reddy at page 588 :- "reservation of appointments or post under Article 16 (4) is confined to initial appointment only and can not extent to providing reser vation in the matter of promotion, We direct that our decision on this question shall operate only prospectively, and shall not affect promotions already made, whether on temporary officiating or regular/permanent basis. It is further directed that where over reservations are already provided in the matter of promotion be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the defini tion of state in Article 12 such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or issue the relevant rules to ensure the achievement of the objective of Article 16 (4 ). If any authority thinks that for ensur ing adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to so. " 15. It was sought to be canvassed by the petitioners that the aforesaid observation is minority view inasmuch as the majority of the Honble Judge have not made such observation. The respondent side however strongly contended that all the Honble Judges who have expressed their mind have not spoken individually or collectively against the aforesaid observation made by my lord Honble Mr. Justice B. P. Jeevan Rsddy. The respondents side placed reliance on a Division Bench decision of this Court reported in 1993 ALJ page 1340 in order to lend support to the argument that the pro motional post shall also carry reservation and if so done it will be further be within the purview of and the intendment contained in Article 16 of the Constitution of India. Reliance was placed on the judgment of the Honble Supreme Court in Vishwas Anna Sawant and others v. Municipal Corporation of Greater Bombay and others, 1994 (2) UPLBEC 1305. The Honble Supreme Court has made significant observation while using following expression in the penultimate paragraph of the judgment: "the right of consideration for promotion is a fundamental right guaranteed to Scheduled Castes and Scheduled Tribes in fulfilment of the mandate under Article 16 (1) read with Article 46 of the. Constitution to render socio-economic justice. This Court has upheld the said right in Mrs. Kalpana Saohu Kumbles case. Thereby the Corporation is enjoined to give effect to the Cons titutional mandate. It is see that when Mr. Mane had appro ached the High Court for granting the relief in the previous writ petition which was filed in a representative capacity not only for himself but also for all backward class citizens, he was given the benefit of promotion, when he initiated the contempt proceedings. But when the appellants had approached the High Court by an independent writ petition, the same benefit was not given to them. The appellants stand in the same position as Mane and that therefore the Corporation cannot take a different and inconsistent stand denying promotion to the appellants who stand on par with Mane. It is seen from the record that they were not declared unfit for promotion by any resolution passed by the Corporation promotion Committee or competent Officer. On the other hand the Corporation relied on the interview con ducted by it, which method or principle was declared by the High Court to be illegal. Under these circumstances, the action of the respondent-Corporation in not giving promotion to the appellants to the post of Assistant Engineers from the posts of Sub- engineers is clearly illegal. The appeal is allowed. The order of the High Court is set aside. 16. Having thus seen the latest observation made by the Supreme Court, it is no doubt true that under the existing law of reservation it shall be permissible to govern promotional posts for a period of 5 years. 17. The appeal is allowed. The order of the High Court is set aside. 16. Having thus seen the latest observation made by the Supreme Court, it is no doubt true that under the existing law of reservation it shall be permissible to govern promotional posts for a period of 5 years. 17. The aforesaid observation of the Supreme Court would not permit the respondents or for that matter any authority, to change the promotional rule in order that the promotional quota is increased, It was seriously contended that by an enactment brought about by the State known as Uttar Pradesh Public Service (Reservation for Scheduled Castes and Scheduled Tribes and other Backward Classes) Act, 1994 the reservation for Scheduled Castes candidates has been increased from 18% to 21% (Scheduled Tribes reservation of 2% has been left untouched) and it is being applied for all promotional posts. It was argued that the vires of the said Act is under challenge in this Court and the matter has been referred to a full Bench for Decision. It was pointed out that by an interim order only 18% reservation in promotional posts has been permitted until the matter is finally decided. It was thus argued that, if at all, the promotional reservation can not exceed 18%. The respondents however contended that since in the affidavit before the Supreme Court, it was averted that 13 Promotions were to be made from SC/st candidates to the post of Superintendent Engineers, it is not permissible for this Court to pass such order which may reduce the said number. This objection is not tenable. The Honble Supreme Courts judg ment has already been quoted above and at no point of time did the question of increase in the percentage of reservation in promotional posts was raised before the Honble Supreme Court. Moreover, the apex Court has not decided that point at all nor was it even raised. The affidavit only indicated the concessions, the Board made before the filing of the affidavit. Therefore, so long as by any authorative pronouncement it is not decided that increase in percentage of reservation in promotional posts is permissible, the State and the Board must contain the reservation in promotional posts to the percentage which existed on the date Indira Sawhneys case was decided. This controversy stands thus resolved. 18. Therefore, so long as by any authorative pronouncement it is not decided that increase in percentage of reservation in promotional posts is permissible, the State and the Board must contain the reservation in promotional posts to the percentage which existed on the date Indira Sawhneys case was decided. This controversy stands thus resolved. 18. Coming now to the argument concerning regulations of 1989 it may be pointed out that the interpretation sought to be placed by the petitioners is not acceptable. The resolution of the Board refers only to the "other classes" where the State Government may issue orders for making reservations and unless the Board by a specific resolution adopted the same, the said GO. would not be applicable. But the G. O. of the State Govern ment concerning the Scheduled Castes and Scheduled Tribes reservations were already adopted and implemented by the Board by earlier G. Os. and B. Os. The result, therefore, is inescapable that the attempt on the part of the peti tioners to interpret said regulation to mean that all three categories of reserved candidates i. e. SC/st and other Backward classes would be requiring fresh decision or resolution of the Board, is without any basis. If any fresh deci sion is taken by the Board concerning reservation in posts for some classes other than the SC/st candidates, may be that fresh resolution of the Board may be necessary. In any case, the Boards stand having already been made clear before the Honble Supreme Court, it must be taken for, granted that the Board has accepted the G. O. of the State Government regarding reserva tions and therefore, this point does not survive for further consideration. 19. In view of the aforesaid discussions it is hereby directed that Office Memorandum dated 13-3-1995 (Annexure 8-A in the first writ petition of K. P. Tewari) as also the Office Memorandum dated 13-4-1995 (Annexure-1 to the supplementary affidavit in the first writ petition) shall be operative only to the extent the promotees to the post of Superintending Engineer do not cross the permissible limit of 18% plus 2% reservation. If it is beyond the said limit of 18% and 2% and has been increased to 21% plus 2% taking shelter behind the U. P. Act No. 4 of 1994, the said Memorandum dated 13-3-1995 and 13-4-1995 shall be amended accordingly to bring it in conformity with the law laid down by the Supreme Court in Indira Sawhneys case (supra ). 20. Coming to the two cases of Sri A,k. Pathak and others, and Sri A. K. Srivastava and others, the grievance of the petitioners is that the post of Executive Engineer involves high intelligence and also experience. It is pleaded that the Scheduled Castes and Scheduled Tribes candidates cannot claim any reservation at any other level except the initial recruitment level and since they do not possess superior skill they can not claim reservation. It is further said that promotion from the post of Assistant Engineer to the post of Executive Engineer can be allowed only in terms of law laid down by the Supreme Court in the case of Indira Sawhneys (supra ). In this view of the matter, it has been prayed in writ petition No. 14178 of 1994 that the list of confirmation of Scheduled Castes and Scheduled Tribes candidates Engineers dated 16-3-1994 (Annexure 4 to the writ petition) be quashed. It may be mentioned that the pleading, Annexure and the affidavit in the two writ petition one of Shri A. K. Pathak and others, and, the others, A. K. Srivastava and others, are identical. 21. It was argued on behalf of the petitioner that Regulation 6 made permissible promotions to the post of Executive Engineer on the basis of seniority subject to the rejection of the unfit, the list announced through the impugned Government order dated 16-3-1994 includes fifteen candidates of the year 1986 from Scheduled Castes and Scheduled Tribes candidates. But no one from the general candidate of the said year has been included and thus they stand discriminated. It is argued that confirming SC/st candidates of the year 1986 and leaving aside general candidates, the Board is not treating the general candidates evenly. It may however, be pointed out that if separate Zones for promotional avenues have to be created, the only thing to be seen would be whether an SC/st candidates has come to acquire the qualifications entitling him to come within the fixed eligibility criteria. It may however, be pointed out that if separate Zones for promotional avenues have to be created, the only thing to be seen would be whether an SC/st candidates has come to acquire the qualifications entitling him to come within the fixed eligibility criteria. As per the observations of the Honble Supreme Court quoted above those SC/st candidates have to be included in a separate zone of consideration. Moreover, till now only confirmation has been made in pursuance of the impugned order. An order of the confirmation can be taken to be a part of continuity in service. At present nothing has happened to the petitioners as a result of which they can say that apart from those who may claim reservation under Article 16 of the Constitution, any other candidate has been promoted and confirmed against the Rule. It was now ever strenuously argued that only confirmed engineers can come in the eligibility criteria. It was argued that Regulations 20 and 21 provide the manner of further promotion. The petitioner case shall stand covered by Regulation 4-B of the Regulations, which provides that Assistant Engineers who completed not less than 7 years service as Assistant Engineer may be promoted to the post of Executive Engineer. It has been provided in Regulation 6 that selection to the post of Chief Engineer, Additional Chief Engineer and Superintending Engineer shall be made on the basis of merit and seniority adequate in all respect, while promotion to the post of Executive Engineer shall be based on seniority subject to the rejection of unfit, (emphasis supplied by the Court), I view of the aforesaid discussion, the publication of the list would not infringe any of the rights of the petitioners so far if the general candidates of the year 1986 are also confirmed. 22. It may be pointed out that Sri S. P. Mehrotra, appearing on behalf of the Board, has made a statement on the basis of averments made in para graphs 17,18,20 21. 22 and 23 of the counter affidavit of Sri Chandra Kalani on behalf of the Board that further action for confirmation of the general candidates of 1986 will also be made soon. 22 and 23 of the counter affidavit of Sri Chandra Kalani on behalf of the Board that further action for confirmation of the general candidates of 1986 will also be made soon. The relevant paragraphs No. 21 and 22 of the counter affidavit are quoted below for ready reference : Paragraphs 21.-It is further submitted that the remaining Assistant Engineers of 1986 batch belonging to General category are also proposed to be considered for confirmation on the post of Assis tant Engineer w. e. f. the aforesaid date i. e. 1-7-1990. " Paragraph 22.-"as already stated, the remaining Assistant Engineer of 1986 batch belonging to general category are also proposed to be considered for confirmation from the same date i. e. 1-4-1990 in due course. " 23. In view of the averments, and the law discussed, the Board is directed not to take any further steps concerning promotion of any one as Executive Engineer unless the general candidates who are in the eligibility list, or also confirmed and all of them are placed together foe consideration in compliance with the Regulations. It is further directed that the promotions to the post of Executive Engineer will also be governed by the aforesaid existing reservation of 18% and 2% for SC/st candidates. If the confirmation list prepared includes a person who may be in excess of the aforesaid percent age, the Board is directed to adjust him in the future promotion in accordance with the quota of 18% and 2% and rotation fixed earlier. No case fur quashing the promotion list is made out. 24. Before parting with the case it may be observed that on conclusion of the arguments, the judgment was dictated in Court when Sri S. M. A. Kazami pointed out that Counter affidavit on behalf of the U. P. S. E. B. may be permitted to be filed. This request was accepted. Consequently, the matter was listed for further hearing when rejoinder affidavit was also filed on behalf of the petitioners. During the course of further arguments the decision of the Honble Supreme Court in National Federation ofs. B. 1, v. Union of India, JT 1995 (3) SC Page 336 came into existence. Bath sides placed reli ance on the said decision, Consequently the judgment was reserved after further hearing. In Paragraph 31 and 32 the conclusions of the discussions have been summarised. B. 1, v. Union of India, JT 1995 (3) SC Page 336 came into existence. Bath sides placed reli ance on the said decision, Consequently the judgment was reserved after further hearing. In Paragraph 31 and 32 the conclusions of the discussions have been summarised. The said paragraphs are quoted here for ready reference : Paragraph 31.-"pot the above reasons, we hold that in the matter of promotion by selection to posts within Class-I which carry an ultimate salary of Rs. 2250 in the revised scale of pay per month or less, there is no reservation in favour of Scheduled Castes/scheduled Tribes but they are entitled to the concession contained in Para 2 of the Office Memorandum dated March 26, 1970 issued by the Ministry of Home Affairs. The concession is that those Scheduled Castes/scheduled Tribes Officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up will be included in the select list provided they are not considered unfit for promotion. (This rule has been ex plained in the body of the judgment by giving an illustration, which it is not necessary to repeat here ). The position of such candidates included in the select list would, however, be the same as is assigned to them by the Departmental Promotion Committee on the basis of their record of service. The said candidates would not be entitled, for the purpose of the said selection, one grading higher than the grading otherwise assignable to them on the basis of their record of service. This also the purport of Para 9 of the Brochure insofar as it deals with promotions within Class-I. " Paragraph 32.-"so far as Prayer (b) in writ petition No, 896 of 1990 is concerned, we must say that it is not possible to accede to it. The prayer is to direct the respondents in the writ petition to fill up the backlog of unfilled vacancies since 1978 by applying the carry forward rule in all grades and scales with consequential benefits. Firstly, none of the relevant Memorandum and orders referred to above provide for carry forward rule. In the absence of such a rule, each year has to be treated as the unit for applying the rule of reservation or concession, as the case may be. Firstly, none of the relevant Memorandum and orders referred to above provide for carry forward rule. In the absence of such a rule, each year has to be treated as the unit for applying the rule of reservation or concession, as the case may be. In any event, so far as the concession concerned herein is concern ed, it can be applied and followed only when a selection takes place. In the absence of a rule to that effect, the said concession cannot be given effect of retrospectively. These writ petitions were filed only in 1990 or thereafter. In such a case, there can be no question of relating back the relief to 1978. So far as Prayer (c) is concerned, it is equally beside the point in the light of what we have decided herein, viz. , that the special provision made in the nature of reservation but a concession. The only declaration and direction that can be granted in these matters i; that the respondents shall apply, implement and follow the concession contained in Para 2 of the Office Memorandum dated March 26, 1970 aforesaid in the matter of promotion in Class-I to be made hereafter. Of course, so far as promotions to Classes-II, III and IV and promotions from Class-II to the lowest rung or category in Class-I are concerned, the orders of Office Memo randum dated July 11, 1986 shall be followed. " 25 The aforesaid decision of the Honble Supreme Court leaves no manner of doubt that in promotional posts reservations are not permissible. How much can lawfully be permitted stands laid down m Indira Sawndeys case (supra ). The separate zone of consideration for SC/st candidates which may be different from general candidates flow from the observations of the Honble Supreme Court made in U. P. Rajya Vidyut Panshad (SC ST) Karmachari Kalyan Sangh. 26 In the result it is hereby directed that promotions to any posts of Superintending Engineer or Executive Engineer shall not exceed 18% plus 2% reservation limit for SC/st candidates so long as the validity of U. P. Act No. 4 of 1994 is not upheld. With these, and the directions mentioned above relating to the specific writ petitions, these petitions are finally disposed of at the admission stage and interim orders passed therein stand vacated. Petition disposed of. .