M. v. Kaila VS State of Gujarat — 1997 DIGILAW 679 (GUJ)

JUDGMENT : R.M. Doshit, J. 1. In this petition, I am called upon to answer the age old dispute regarding seniority amongst the Government servants promoted to a higher post from amongst the reserved category employees and the general category employees. 2. The facts undisputed are that the petitioner is a general category employee serving as Under Secretary. He was promoted as Under Secretary on 18th April, 1991. Respondents Nos. 4 to 14 belong to scheduled tribes and were promoted as Under Secretaries to the State Government during the period from November 1989 to May, 1990. Thus, the said respondents Nos. 4 to 14 have been promoted as Under Secretaries before the petitioner was so promoted. Said respondents were far junior to the petitioner in the lower cadres of Assistant as well as the Section Officer. However, on account of the reservation for promotion to the cadre of the Under Secretary, said respondents were promoted as Under Secretary earlier than the petitioner. Further, promotion from the post of Under Secretary is made to the post of Deputy Secretary to the State Government. The post of Under Secretary is the lowest post in the State Administrative Service Class-I. Promotion to the post of Deputy Secretary is made on the basis of proved merit and efficiency. No reservation is provided for promotion to the post of Deputy Secretary. Thus, all the Under Secretaries have to compete with one another on merits for further promotion to the post of Deputy Secretary to the State Government. 3. Mr. Upadhyay, the learned advocate appearing for the petitioner has submitted that all along the petitioner was senior to respondents Nos. 4 to 14. However, said respondents got earlier promotion to the post of Under Secretary only on the ground that they belong to the scheduled tribes. But for the fact, they would not have been considered for promotion earlier than the petitioner and the petitioner would have been promoted as Under Secretary prior to the said respondents. He has submitted that the State Government has not framed any rules of seniority in the cadre of Under Secretary. In absence of specific rules governing the seniority, general rule of seniority should prevail. He has submitted that since in the lower cadres, the petitioner was senior to the said respondents, after his promotion to the post of Under Secretary, he shall remain senior to the said respondents. In absence of specific rules governing the seniority, general rule of seniority should prevail. He has submitted that since in the lower cadres, the petitioner was senior to the said respondents, after his promotion to the post of Under Secretary, he shall remain senior to the said respondents. Thus, the petitioner has prior right for being considered for further promotion as Deputy Secretary to the State Government. It is the grievance of the petitioner that in spite of the above referred general rule of seniority, respondents Nos. 4 to 14 are being considered for further promotion in violation of the right of the petitioner to be so considered earlier than those respondents. In fact, considering said respondents senior to the petitioner, respondents No. 4 and 5 and Nos. 6 to 8 have been promoted as Deputy Secretary on 8th November, 1996 and on 21st December, 1996, respectively. Said promotions are also challenged in this petition. He has placed sole reliance upon the judgment of the Supreme Court in the matter of Ajit Singh Januja v. State of Punjab and others, AIR 1996 SC 1189 He has particularly relied upon paragraphs 15, 16 and 17 of the judgment. In the matter of Joginder Sing Sethi v. Punjab Government, 1982 (2) SLR 307. The Government orders issued in respect of the implementation of reservation policy in the State of Punjab came up for challenge before the High Court of Punjab & Haryana. The Court while considering the validity of the above order, quashed and set aside the above referred order issued by the Government and held that; "It is patent that the scheduled castes/backward classes people can take advantage of the reservation made in their favour on July 30, 1970 till their representation in the cadre of assistance....................is reached or completed and not beyond that. For working out this percentage, promotees/appointees in this cadre whether on the basis of reservation or otherwise have to be taken notice of." 4. A similar issue came up for consideration before the Full Bench of the High Court of Punjab & Haryana in the matter of Jashvant Singh v. Secretary to the Government of Punjab, 1989 (4) SLR 257. For working out this percentage, promotees/appointees in this cadre whether on the basis of reservation or otherwise have to be taken notice of." 4. A similar issue came up for consideration before the Full Bench of the High Court of Punjab & Haryana in the matter of Jashvant Singh v. Secretary to the Government of Punjab, 1989 (4) SLR 257. Full Bench of the High Court held that non consideration of the Scheduled Castes Candidates against the general category posts for the purpose of appointment or promotion will be hit by Articles 14, 15 and 16 of the Constitution. These two above referred judgments of the High Court of Punjab and Haryana were the subject matter of challenge before the Supreme Court in the above referred matter of Ajit Singh and other cognate matters. The Court, after considering the rival contentions in paragraph 15 of the judgment held that; "The equality principle requires exclusion of the factor of extra weightage of earlier promotion to a reserved category candidate because of reservation alone, when he competes for further promotion to a general category with a general category candidate, senior to him in the panel. Any other view would amount to reverse discrimination and violative of the guarantee of equality in Articles 14 and 16." In paragraph 16 of the judgment, the Court further held that; "seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. Rule of reservation gives accelerated promotion, but it does not give the accelerated 'consequential seniority' If a scheduled caste/scheduled tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category candidate is promoted later to that higher grade, the general category candidate shall regain his seniority over such earlier scheduled castes/tribes candidate. Rule of reservation gives accelerated promotion, but it does not give the accelerated 'consequential seniority' If a scheduled caste/scheduled tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category candidate is promoted later to that higher grade, the general category candidate shall regain his seniority over such earlier scheduled castes/tribes candidate. As already pointed out above, that when a scheduled caste/tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such scheduled caste/tribe candidate, in this process, he does not supercede his seniors belonging to the general category..........As such, it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the scheduled caste/tribe who has been given accelerated promotion against the post reserved for him." 5. In view of the above judgment, the Supreme Court reversed part of the full bench judgment of the High Court of Punjab & Haryana in the matter of Jaswant Singh & Ors. (Supra) where it said that the non consideration of the scheduled castes candidates against the general category posts on the basis of prior promotion will be hit by Articles 14, 15 and 16 of the Constitution. Mr. Upadhyay has vehemently argued that the above referred law pronounced by the Supreme Court is final and is binding in all circumstances. Under the said judgment, the Supreme Court has laid down an universal principle which, in absence of specific rule to the contrary, shall apply for promotions to be made from lower cadres to the higher cadres in public employment. In the present case also, there being no specific rule regarding seniority of the under secretaries, the under secretaries belonging to the general category who were senior in the cadre of section officer (feeder cadre) shall be treated as senior in the cadre of under secretary also to those under secretaries who were so promoted on the reserved posts earlier than the general category under secretary only on account of they being scheduled tribe candidates even though they were junior to the general category section officers. In other words, Mr. Upadhyay has submitted that the petitioner who is a general category under secretary should be treated to be senior to the respondents no. In other words, Mr. Upadhyay has submitted that the petitioner who is a general category under secretary should be treated to be senior to the respondents no. 4 to 14 who belong to scheduled tribes though the said respondents were promoted earlier because the petitioner was senior to them in the cadre of section officer and but for the reservation for the scheduled tribes, said respondents would not have been promoted as under secretaries earlier than the petitioner. 6. Learned counsels Mr. Mehta and Mr. Patel have appeared for respondents Nos. 4 to 14 and have contested the petition. They have submitted that in the matter of Ajit Singh (supra), the Court was considering the validity of the judgment of the High Court of Punjab and Haryana which in turn had considered various Government instructions issued with regard to the reservation and seniority of reserved category candidates in the Government employment. They have, therefore, submitted that this judgment is confined to the facts of that case alone i.e. confined to the interpretation of various orders issued by the Punjab Government which were the subject matter of interpretation before the Court. They have submitted that the said judgment does not lay down any universal principle of seniority amongst the reserved candidates and the general category candidates. They have further submitted that in absence of any rule to the contrary, the seniority in a given cadre is governed by the general principles of continuous officiation which is well known and universally accepted law. They have also submitted that all along seniority in various cadres has been governed by the principles of continuous officiation and there is no justiciable reason why any deviation should be made in the present case. It has also been emphasised that there is no reservation while making further promotion to the post of Deputy Secretary and the question of considering respondents Nos. 4 to 14 against such reserved category posts does not arise. If all the employees are required to compete with one another for further promotion, the principle of continuous officiation should be the governing factor. By their earlier promotion, respondents No.4 to 14 have gained a longer experience as Under Secretary and there is no law which requires the Government to ignore said experience gained by respondents No.4 to 14. If all the employees are required to compete with one another for further promotion, the principle of continuous officiation should be the governing factor. By their earlier promotion, respondents No.4 to 14 have gained a longer experience as Under Secretary and there is no law which requires the Government to ignore said experience gained by respondents No.4 to 14. In support of their claim, they have relied upon the judgment of the Supreme Court in the matter of Jagdish Lal and others v. State of Haryana and others, AIR 1997 SC 2366 . It is submitted that in the matter of Jagdish Lal (supra), a similar question of seniority was posed before the High Court of Punjab and Haryana and the Court ruled in favour of the reserved category candidates. Said decision of the High Court of Punjab and Haryana has been approved by the Supreme Court after considering the earlier judgment in the matter of Ajit Singh (supra). The Supreme Court, in its later judgment, has held that the judgment of the Supreme Court in the matter of Ajit Singh was delivered on the facts of the said case and it cannot have a universal application. They have, therefore, submitted that the later judgment of the supreme court which has relied upon and has explained the earlier judgment shall prevail and the later judgment shall govern the field. As against the above submissions, Mr. Upadhyay has submitted that it is the judgment in the matter of Ajit Singh which lays down a universal principle governing all promotions in public employment while in the matter of Jagdish Lal, the Court was confined to the facts stated therein. He has relied upon the observations made in paragraph 4 of the judgment wherein the Court has held that; "The decision in Virpal Singh Chauhan's case and Ajit Singh's case cannot be applied in a case like the present one where the seniority is required to be determined in different cadres and categories of posts." In para 16 of the judgment also, the Court has held that; "Equally the ratio in Ajit Singh's case 1996 AIR SCW 1196, as rightly pointed out by the High Court is inapplicable." In para 18 of the judgment, the Court held that; "We hold that the decision of the High Court is not vitiated by any error of application of wrong principle of law warranting interference." 7. Relying upon the above observations made by the Supreme Court in the matter of Jagdish Lal, (supra), Mr. Upadhyay has submitted that the said judgment should be read in context of the judgment under consideration and the specific rule of seniority which governed service conditions of the appellants and the concerned respondents. It, therefore, cannot be applied to the facts of the present case. Mr. Upadhyay has also relied upon the judgment of the Supreme Court in the matter of Chandar Pal and Others v. State of Haryana, 1997 SCC (L & S) 1624. Against the grievance made before the Supreme Court, the Supreme Court has held that the law as regards accelerated promotion to the higher by virtue of seniority on account of earlier promotion due to reservation is now settled by the decision of this Court in the matter of Union of India v. Virpal Singh Chaudhary and Ajit Singh (Supra). 8. Though Mr. Upadhyay seems to be correct in contending that in the matter of Jagdish Lal, the Court was confined to the validity of the High Court of Punjab and Haryana and the judgment of the High Court was confined to the rules governing the service of the employees of the State of Haryana; on careful perusal of paragraphs 11 to 16 of the judgment, I am of the view that while considering the concerned rules, the court also examined the applicability of the judgment of the Supreme Court in the matter of Ajit Singh and explained the same. Having considered the judgment in the matter of Ajit Singh as well as the judgment in the matter of Virpal Singh Chauhan, 1995 (2) SCC 258), the Court held that; "This clearly explains that this Court did not intend to depart from the normal service jurisprudence; nor did it intend to lay down any separate rule of interpretation in determining the inter se seniority of the reserved candidates and the general candidates and their fusion into common seniority in the higher echelons yielding placement of seniority to the general category candidate over the erstwhile junior reserved candidates. Equally the ratio in Ajit Singh's case 1996 AIR SCW 1196 as rightly pointed out by the High Court is inapplicable. It did not lay down any separate rule in that behalf." In my view, Mr. Equally the ratio in Ajit Singh's case 1996 AIR SCW 1196 as rightly pointed out by the High Court is inapplicable. It did not lay down any separate rule in that behalf." In my view, Mr. Upadhyay is right in contending that in the matter of Ajit Sinh (supra), the Supreme Court laid down a universal principle of seniority amongst the Government employees promoted to a cadre from the lower cadre from amongst the reserved category candidates and the general candidates. However, said view has not been accepted in the later judgment of Jagdish Lal (supra) and rightly so. If the contention canvassed by Mr. Upadhyay were accepted, the reserved category candidates would be required to compete amongst themselves for promotion to a post in higher cadre which is reserved according to the reservation policy and the general category candidates would be competing amongst themselves for further promotion to non-reserved posts. This would virtually divide the hierarchy in the public employment into two vertical divisions and the reserved candidates would never get a chance to compete on open competition which shall undermine the will to work hard and to excel. Further, they would never assimilate in the mainstream either in employment or in the society which should necessarily defeat the central purpose of reserving the posts in public employment for such candidates. This indeed cannot be the purpose for which Article 16 (4) was introduced by the founding fathers of the Constitution of India. However, the judgments in the matters of Ajit Sinh (supra) and Jagdish Lal (supra) both are delivered by 3 Judges' Bench of the Supreme Court. The judgment in the matter of Jagdish Lal (supra) is later and the judgment in the matter of Ajit Singh (supra) has been considered and is discussed in great detail in the matter of Jagdish Lal. Having so considered, the judgment in the matter of Ajit Singh (supra), the Supreme Court, as discussed herein-above, held that; "The principles enunciated in the matter of Ajit Singh (supra) were confined to the facts of the case and did not lay down a universal proposition of law." In my opinion, the later judgment of the Supreme Court, which has considered and explained the earlier judgment of a collateral Bench, shall prevail. It must, therefore, be held that the seniority amongst the Under Secretaries to the Government of Gujarat, in absence of any rule governing such seniority, shall be determined on the basis of continuous officiation. If a reserved category Section Officer though junior has been granted regular promotion after due selection earlier than his seniors of unreserved category, he shall rank senior in the cadre of Under Secretary on the principle of continuous officiation. In the present case, therefore, the Government is right in considering the cases of respondents Nos. 4 to 14 for further promotion to the post of Deputy Secretary earlier than the petitioner. The said respondents Nos. 4 to 14 having put longer service as Under Secretaries are entitled to be considered senior to the petitioner. The challenge to the promotion of respondents Nos. 4 to 8 on the basis of seniority alone is, therefore, not sustainable and requires to be rejected. In view of the above discussion, petition is dismissed. Rule is discharged. Interim order made on 6th February, 1997 stands vacated. Parties shall bear their own costs. Mr. Upadhyay requests that the interim order made on 6th February, 1997 be continued for some time. Request is granted. Interim order made on 6th February, 1997 shall continue to operate till 12th January, 1998. Petition dismissed.