Ranganathan K. D. v. Cochin Port Trust — 1996 DIGILAW 476 (KER)

JUDGMENT 1. The petitioner joined the service of the Cochin Port Trust as Mazdoor on 7th April 1.970. He was later promoted and confirmed as Fitter Assistant on 1st April 1984. He was promoted to the next post of Fitter II Class and was confirmed on 1st January 1985. He got a later promotion as Head Fitter on 20th October 1988. According to the petitioner, he is the senior most in the category of Head Fitters. 2. The third respondent who is a member of the Scheduled Tribe, was appointed on 18th February 1980 as Fitter Assistant and was confirmed on 1st January 1985. On 21st November 1991 he was promoted as Head Fitter. 3. The next promotion of a Head Fitter is as Chargeman II Fitter. There is only one sanctioned post of Chargeman II Fitter in the Cochin Port Trust. The 40 point Roster is being followed in the Cochin Port Trust for appointment and promotion. According to the above Roster, 1.5 per cent seats are reserved for Scheduled Caste and 7.5 per cent for the Scheduled Tribes. After coming into force of the above Roster and till 1991 there arose five vacancies of Chargeman II Fitter. Two vacancies were filled up by Scheduled Caste and Scheduled Tribe candidates and three vacancies were filled up by general candidates. Now due to retirement of one V.A. Joseph, a general candidate a vacancy of Chargeman II Fitter has arisen. According to the petitioner, the first respondent is taking steps to fill up the above post by appointing the third respondent, who is much junior to him. The petitioner is fully qualified to be appointed to the above post. 4. It is the case of the petitioner that out of five appointments made to the post of Chargeman II Fitter, two were Scheduled Caste and Scheduled Tribe candidates. That will account to 40 per cent reservation to the Scheduled Caste. Under the rule only 22.5 per cent are reserved for S.C. and S.T. together. Thus, if the present vacancy is also filled up then the reservation in favour of the S.C. and S.T. will be more than 50 per cent. Therefore, the petitioner have sought for a declaration that he is entitled to be considered for appointment to the post of Chargeman II Fitter in preference to the third respondent. 5. Thus, if the present vacancy is also filled up then the reservation in favour of the S.C. and S.T. will be more than 50 per cent. Therefore, the petitioner have sought for a declaration that he is entitled to be considered for appointment to the post of Chargeman II Fitter in preference to the third respondent. 5. In the counter affidavit filed by the second respondent it has been admitted that the petitioner is the senior most qualified Head Fitter to be promoted as Chargeman II Fitter. It is also admitted that out of five vacancies, one was filled up by a member of the Scheduled Tribe and another was filled up by a member of the Scheduled Caste. The rest three vacancies were filled up by general candidates. The counter affidavit as also quoted the Government of India Office Memorandum regarding the reservation and carry forward of a single vacancy arising in a year, which is as follows: 11.3 "Reservation and carry forward of a single vacancy arising in a year. In cases where only one vacancy occurs in the initial recruitment year and the corresponding roster point happens to be for a Scheduled Caste or a Scheduled Tribe, it should be treated as unreserved and filled accordingly and the reservation carried forward to subsequent three recruitment years, but in the subsequent recruitment year (s), even if there is only one vacancy, it should be treated as 'Reserved' against the carried forward reservation from the initial recruitment year, and a Scheduled Caste/Scheduled Tribe candidate, if available, should be appointed in that vacancy, although it may happen to be the only vacancy in that recruitment year (s). This provision applies also to promotion by selection to Group C to Group B, within Group B and from Group B to the lowest rung of Group A where if there is a single vacancy it may be treated as unreserved and the reservation carried forward to three subsequent recruitment years even though carrying forward of reservations are not permitted in this particular promotion. If a single vacancy falls at a reserved point for S.C./S.T. and is filled by S.C./S.T. candidate on the basis of his own merit or seniority it need not be treated as unreserved and reservation should not be carried forward. In these cases, the provisions of orders of 29th April 1975 will not be applicable. If a single vacancy falls at a reserved point for S.C./S.T. and is filled by S.C./S.T. candidate on the basis of his own merit or seniority it need not be treated as unreserved and reservation should not be carried forward. In these cases, the provisions of orders of 29th April 1975 will not be applicable. Further, if a single vacancy falls at a reserved point for S.C./S.T. and is filled up by a candidate of the other reserved community on the basis of his own merit or seniority as the case may be, the v. cancias will be treated as unreserved and treated as if it is filled by a general candidate, and the vacancy shall also be carried forward. In these cases, the instructions contained in this Department O.M. dated 29th April 1975, referred to above, shall apply. 6. The counter affidavit proceeds to state that if there is a single vacancy it may be treated as unreserved and the reservation carried forward to three subsequent recruitment years even though carrying forward of reservation is not permitted in this particular promotion. It is further stated that the existing vacancy of Chargeman II Fitter which is unreserved one being a special representation roster point No. 6 under 40 point roster, is treated as reserved for Scheduled Tribe to adjust the single carried forward Scheduled Tribe vacancy of 1989. Therefore, it is submitted that the post now fallen vacant has to be filled up by Scheduled Tribe Candidate. 7. I think the counter affidavit proceeds on a misapprehension regarding the principles of reservation to be applied in the matter of filling up of the vacancies which are now clearly pronounced by the Supreme Court in a number of cases. In Indra Sawhney's case otherwise known as Mandal Commission case AIR 1993 SC 477 the Supreme Court was emphatic in holding that the reservation contemplated in clause (4) of Art.16 should not exceed 50 percent. The Supreme Court also considered the impact of reservations in favour of S.C., S.T. and Other Backward Classes (which the Supreme Court referred as vertical reservations) and held that even after providing for these interlocking reservations the percentage of reservations in favour of Backward Classes citizens must remain the same. The following observation is relevant in this context. The Supreme Court also considered the impact of reservations in favour of S.C., S.T. and Other Backward Classes (which the Supreme Court referred as vertical reservations) and held that even after providing for these interlocking reservations the percentage of reservations in favour of Backward Classes citizens must remain the same. The following observation is relevant in this context. "It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50 per cent a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be." With regard to the carry forward rule the Supreme Court after discussing Balaji's case AIR 1963 SC 649 , Devadasan's case AIR 1964 SC 179 and Karamchari Sangh's case AIR 1981 S.C. 298 held as follows: "We are in respectful agreement with the above statement of law. Accordingly, we overrule the decision in Devadasan ( AIR 1964 SC 179 ). We have already discussed and explained the 50 per cent rule in paras 93 to 96. The same position would apply in the case of carry forward rule as well. We, however, agree that a year should be taken as the unit or basis, as the case may be, for applying the rule of 50 per cent and not the entire cadre strength. We may reiterate that a carry forward rule need not necessarily be in the same terms as the one found in Devadasan. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry forward rule, in whatever: manner it is operated, should not result in breach of 50 per cent rule.'' If that is the principle to be applied to the facts of this case the stand of the Port Trust that the 6th vacancy Roster point No. 6 under 40 point roster must be treated as reserved for S.T. to adjust the single carried forward S.T. vacancy of 1989 cannot be accepted. 8. Yet there is another insurmountable difficulty for the Cochin Port Trust to fill up the present vacancy by appointing the third respondent. The counter affidavit candidly admits that out of five vacancies now filled up one vacancy was filled up by S.T. and another by S.C. Applying the principle enunciated by the Supreme Court in the ruling reported in R. K. Sabharwal v. State of Punjab AIR 1995 SC 1371 the 6th vacancy in the Roster cannot again be filled up by appointing a Scheduled Tribe candidate. In the above ruling the Supreme Court held as follows: "As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster points 1,7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation." In this case it is an admitted fact that Shri V. A. Joseph who is a general candidate retired in 1996 and that is the vacancy which is now sought to be filled up. Therefore, the above vacancy must be filled up by appointing a genera] candidate like the petitioner who is the senior most qualified hand available for promotion. 9. Therefore, the above vacancy must be filled up by appointing a genera] candidate like the petitioner who is the senior most qualified hand available for promotion. 9. It is also pertinent to point out that the Sabharwal's case AIR 1995 SC 1371 was later followed in Union of India v. Virpal Singh Chauhan AIR 1996 S.C. 448 . 10. In a very recent ruling of the Supreme Court reported in S. B. I. S.C./S. T. Employees Welfare Association v. State Bank of India AIR 1996 SC 1838 the Supreme Court considered the concept of carry forward rule and its continuance for more than three years resulting in excess reservation beyond 50 per cent. The following observation of the Supreme Court ruling will decide the fate of this case. "11. Ms. Jaising, learned counsel for the employees contends that from 1978 onwards and until a further relaxation of service norms was provided for under the circular of 28th July 1983, various unfilled vacancies reserved for Scheduled Caste/Scheduled Tribe employees lapsed after the expiry of three years. She contends that these vacancies should not be allowed to lapse. These lapsed vacancies should be filled in retrospectively on the basis of subsequent relaxation granted by the circular of 28th July 1983. It is also contended on behalf of the employees that the direction in the circular, that in any given year, not more than 50 per cent of the vacancies should be available for being filled in by Scheduled Caste/Scheduled Tribe candidates, is violative of Art.16. Both these contentions, namely, about the carrying forward of reserved vacancies for a period of three years at the end of which they lapse, and the provision that in any given year not more than 50 per cent of the available vacancies should be reserved, have been negatived by this Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented by its Assistant General Secretary on behalf of the Association v. Union of India. (1991) 2 SCR 185 : (AIR 1981 S. C. 298). In that case a similar provision for carrying forward of reserved vacancies for Scheduled Caste and Scheduled Tribes for a period of three years was upheld by this Court. (1991) 2 SCR 185 : (AIR 1981 S. C. 298). In that case a similar provision for carrying forward of reserved vacancies for Scheduled Caste and Scheduled Tribes for a period of three years was upheld by this Court. This Court also upheld the instructions issued by the Railway Board in that case to the effect that in any given year not more than 50 per cent of the promotional posts should be made available to the reserved category of Scheduled Caste and Scheduled Tribe candidates; holding that the carry forward rule should not result in any given year in the selection or appointment of Scheduled Caste and Scheduled Tribe candidates in excess of 50 per cent (p. 242). In the light of this judgment, the scheme formulated by the State Bank of India under the two circulars of 3rd of April, 1978 and 28th of July 1983, thus cannot be faulted." Thus, it can be seen that the case of the petitioner is a formidable one, legally and factually acceptable. Therefore, the petitioner is entitled to a declaration that he is entitled to be considered for appointment to the post of Chargeman II Fitter in preference to the third respondent for the 6th vacancy of Chargeman that has now arisen in the service of the first respondent. Thus the Original Petition is allowed. Respondents 1 and 2 are directed to take steps to fill up the post of Chargeman II Fitter following the observations made in the judgment. Original Petition is allowed as indicated above.