Judgment :- Jawahar Lal Gupta, C.J. (Oral) Is a member of the Scheduled Castes or Scheduled Tribes not entitled to be promoted to a group C post despite the existence of a reserved vacancy merely because his name does not come within the Zone of consideration? The Tribunal has answered this question in favour of the employee. Aggrieved by the order, the Commissioner of Central Excise etc. have filed O.P.No.7445/2002. The facts as relevant for the decision of this case may be briefly noticed. 2. The respondent is a member of the Scheduled castes. He had joined service as an Operator (Telecom) in the Central Excise Collectorate, Trichy on May 30, 1977. On September 7, 1987, he was transferred, at his own request, to the Cochin Collectorate. 3. In the year 1989, five vacancies in the cadre of Supervisor (Communication) were filed up by promotion. According to the roster prepared by the Department, one of these vacancies fell to the share of the members of Scheduled Castes. The respondent was not considered for promotion. In fact, no member of the Scheduled Casts was considered or promoted. Later on, as a result of restructuring, two more promotions were made vide orders dated 15.7.1991 and 31.08.1992. The petitioner was qualified. Yet his claim was not considered. He submitted a representation on 13.10.1993. Thereafter, by office order No. 165/94 dated 04.10.1994, he was promoted as Supervisor (Communication). He was not satisfied. Another representation was filed on 30.11.1994. On 24.07.1995, he was informed that the promotion having been given on the basis of the clarification issued by the Ministry on 09.12.1993, retrospective effect could not be given. Aggrieved by the order, he filed a petition under Section 19 of the Central Administrative Tribunals Act, 1985. This petition was registered as O.A. No.1503/1995. He claimed that he was entitled to be considered against the post reserved for the members of Scheduled Casts with effect form the year 1989. This petition was decided vide order dated September 5,1997. The order dated July 24,1995 rejecting the claim of the respondent was set aside. The Commissioner, Central Excise and Customs, Kochi, was directed to reconsider the matter. 4. In pursuance to the directions given by the Tribunal, the Commissioner passed an order dated October 29,1997. This petition was decided vide order dated September 5,1997. The order dated July 24,1995 rejecting the claim of the respondent was set aside. The Commissioner, Central Excise and Customs, Kochi, was directed to reconsider the matter. 4. In pursuance to the directions given by the Tribunal, the Commissioner passed an order dated October 29,1997. He rejected the respondent’s claim on the ground that he did not fall within the normal or the extended zones of consideration in the years 1989 and 1990. Thus, the claim was not tenable. 5. The respondent again approached the Central Administrative Tribunal. His petition was registered as O.A. No. 1585/1998. He challenged the order dated October 29,1997, by which his claim had been rejected. The Tribunal considered the matter. Vide order dated October 11, 1998, the Tribunal quashed the order dated October 29,1997. It directed the authority to reconsider the matter and dispose of the case by passing a speaking order. 6. The Department reconsidered the matter. Vide order dated January 18,1999, the claim of the respondent was again rejected on the ground that he did not fall within the zone of consideration. Thus, the respondent again approached the Tribunal. 7. The matter was considered by the Tribunal. Vide order dated September 14, 2001, the Tribunal quashed the order dated January 18, 1999. It came to the conclusion that the instructions issued by the Department do not prescribe that for promotion within Groups C and D, a member of the scheduled Casts or Scheduled Tribes can be promoted only when he comes within the Zone of consideration. Thus, the Tribunal allowed the petition and directed the authority to consider the claim of the official by “a review DPC as on 31.1.1989 for promotion to reserved post of Supervisor (Communication) without regard to any Zone of consideration…” Aggrieved by the order, the Commissioner has filed the present writ petition. 8. No one has appeared for the respondent despite service. 9. Mr. Gopinath, learned counsel for the petition has contended that the instructions issued by the Government postulate that the officers have to be considered in order of their seniority. Only those persons who fall within the zone of consideration have to promoted. 8. No one has appeared for the respondent despite service. 9. Mr. Gopinath, learned counsel for the petition has contended that the instructions issued by the Government postulate that the officers have to be considered in order of their seniority. Only those persons who fall within the zone of consideration have to promoted. If a person belonging to the category of Scheduled Casts or Scheduled Tribes does not come within the normal zone or even the extended zone, then despite the availability of a reserved post, a member of that class cannot be promoted. Is it so? 10. The Department has been periodically issuing instructions regarding reservation of posts for members of Scheduled Castes and Scheduled Tribes. A copy of the brochure, which is a compilation of the instructions issued by the Government, has been produced as Ext.P7. A perusal of these instructions shows that the services under the Central Government have been divided into Groups A,B,C and D. So far as groups A and B are concerned, the instructions provide for reservation of 15% vacancies for members of Scheduled Castes and 7.5% for members of Scheduled Tribes. Still further, in the matter of promotion or selection within groups A and B, it has been provided as under: - (i) Selection against vacancies reserved for Scheduled Casts and Scheduled Tribes will be made only from among those Scheduled Casts/ Scheduled Tribes officers who are within the normal zone of consideration prescribed by DP & Ar O.M. No. 22011/3/76- East(D) dated 24th December, 1980, where adequate number of SC/ST candidates are not available within the normal field of choice, it may be extended to 5 times the number of vacancies and the SC/ST candidates (and not any other) coming within the extended filed of choice should also be considered against the vacancies reserved for them. (Emphasis supplied) (ii) If candidates from Scheduled Casts and Scheduled Tribes obtain on the basis of merit with due regard to seniority, on the same basis as others, less number of vacancies than that reserved for them, the difference should be made up by selecting candidates of these communities who are considered fit for promotion. (Emphasis supplied) (ii) If candidates from Scheduled Casts and Scheduled Tribes obtain on the basis of merit with due regard to seniority, on the same basis as others, less number of vacancies than that reserved for them, the difference should be made up by selecting candidates of these communities who are considered fit for promotion. (iii) A select list should then be prepared in which the names of all the selected officers, general as well as those belonging to Scheduled Casts and Scheduled Tribes, are arranged in the order of merit and seniority according to the general principles for promotion to selection posts laid down in the Ministry of Home Affairs O.M No. 2/5/55- RPS, dated 16th May, 1957, i.e. by placing the names in the three categories via. ‘Outstanding’, ‘Very Good’ and Good’ in that order, without disturbing the seniority inter se within each category. Such of the meritorious SC/ST candidates who are in the extended field and get selected should retain their position in the panel in accordance with their gradation by the D.P.C. This Select List should, therefore, be followed for making promotions in vacancies as and when they arise during the year” A perusal of the above instructions shows that while making selection for appointment against vacancies reserved for the members of Scheduled Castes/ Scheduled Tribes, only those persons who come within the zone of consideration (normal or extended) are considered. In contra-distinction to this provision in the matter of promotion in groups C and D services, the instructions provide as under: “9.2 (c) Promotions by selection in Group C and D (Class III IV) appointments: As indicated in paragraph 2.1 (c), there is a reservation at 15 per cent and 7 ½ per cent of the vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions made by selection in Group C and D (Class III IV) posts in grades or services in which the element of direct recruitment, if any, does not exceed 66 2/3 per cent. For such posts, the Select List of Scheduled astes/Scheduled Castes/Scheduled Tribes officers should be drawn up separately to fill the reserved vacancies. Officers belonging to these classes should be adjudged separately and not along with other officers and if they are fit for promotion, they should be included in the list irrespective of their merit as compared to other officers. For such posts, the Select List of Scheduled astes/Scheduled Castes/Scheduled Tribes officers should be drawn up separately to fill the reserved vacancies. Officers belonging to these classes should be adjudged separately and not along with other officers and if they are fit for promotion, they should be included in the list irrespective of their merit as compared to other officers. Promotions against reserved vacancies will be subject to the candidates satisfying the prescribed minimum standards. For determining the number of vacancies to be reserved for Scheduled Castes and Schedule Tribes, a separate roster on the lines of the roster prescribed in Annexure 1 to 0.M. No. 1/11/69-East (SCT) dated 22.4.1970 (in which points 1,8,14,22,28 and 36 are reserved for Scheduled Casts and points 4,17 and 31 are reserved for Scheduled Tribes) should be followed. The following instructions will apply to the filling of vacancies reserved for Schedule Casts and Scheduled Tribes in such promotions. (a) Scheduled Caste and Scheduled Tribe Officers who are within the normal zone of consideration should be considered for promotion along with others and adjudged on the same basis as others and those Schedule Castes and Scheduled Tribes amongst them who are selected on that basis may be included in the general select list in addition to their being considered for separate select lists for Schedule Castes and Scheduled Tribes respectively. (b) If candidates form Scheduled Castes and Scheduled Tribes obtain on the basis of their positions in the aforesaid general select list, less vacancies than are reserved for them, the difference should be made up by selected candidates of these communities who are in the separate select lists for Scheduled Castes and Scheduled Tribes respectively.” (Emphasis supplied) 11. A perusal of the above instructions shows that so far as promotions in Groups C and D services are concerned, the Authority has to prepare a separate list of persons who are fit for promot ion from amongst the members of Scheduled Castes and Scheduled Tribes. The members of the weaker sections, who fall within the normal zone of consideration, shall be considered for promotion along with others. The members of the weaker sections, who fall within the normal zone of consideration, shall be considered for promotion along with others. Under sub-clause (b), if candidates from Scheduled Castes and Scheduled Tribes promoted on the basis of their position in the general select list are less than the number of vacancies reserved for them, the difference is to be made up by promotion of the persons form the separate select list prepared for the members of these categories. In other words, in the case of Groups A and B services, the benefit of reservation is admissible to a member of the Scheduled Castes/ Scheduled Tribes only if he falls within the zone of consideration. However, in the case of Groups C and D services, the benefit is granted even if the man does not fall within the zone of consideration. In fact, the instructions envisage the preparation of separate select lists for members of Scheduled Castes and Tribes. The person, whose name is borne on the select list, is entitled to be promoted against the reserved vacancy. This being the essential difference in the conditions laid down in the instructions, there appears to be infirmity in the view taken by the Tribunal. 12. Mr. Gopinath refers to the Note at page 116 of the Brochure It reads as under: - Note: In promotions by selection in Group ‘C’ and ‘D’, the earlier instructions contained in the O.M. No. 1/12/67-Estt (c), dated 11.7.1968 would continue to apply in the case of Scheduled Castes/Scheduled Tribes employees as these are not superceded by the instructions of 24.12.1980. However, the procedure for identifying year wise vacancies, size of zone of consideration and preparation of year wise panels as contained in the O.M. dated 24.12.1980 will be applied for preparation of separate panels for Schedule Casts and Scheduled Tribes.” (Emphasis supplied) Even a perusal of the above Note shows that separate panels have to be prepared for members of Scheduled Castes/Scheduled Tribes. Thus, the Note is in conformity with the basic instructions as contained in paragraph 9.2 (c) and does not carve out any exception to it. 13. There is another aspect of the matter. The Office Memorandum of 1980 was issued when various departments had requested for clarifications. This fact has been highlighted in Ext. P7. Thus, the Note is in conformity with the basic instructions as contained in paragraph 9.2 (c) and does not carve out any exception to it. 13. There is another aspect of the matter. The Office Memorandum of 1980 was issued when various departments had requested for clarifications. This fact has been highlighted in Ext. P7. The orders indicated that there was a general feeling that a large field of choice might result in excessive suppression. A doubt was raised whether the restriction about field of choice applied to Group C and D posts as well. Thereupon Office Memo. Dated May 2, 1983 was issued. A copy is a Annexure-A9 in the petition, which was filed before the Tribunal. The following clarification was issued in the light of the existing O.M. dated 11.7.1968: “(a) In promotions by selection in Groups ‘C’ and ‘D’, the earlier instructions contained in the O.M. No. 1/12/67-Estt. (c) dated 11.7.1968 would continue to apply in the case of Scheduled Castes/Scheduled Tribes employees as these are not superseded by the instructions of 24.12.1980. However, the procedure for identifying year-wise vacancies and preparation of year-wise vacancies and preparation of year-wise panels as contained in the O.M. dated 24.12.1980 will be applied for preparation of separate panels for Scheduled Castes and Scheduled Tribes. (b) As regards promotion by selection from Group ‘C’ to Group ‘B’ within Group ‘B’ and from Group ‘B’ to the lowest rung of Group ‘A’ the principles enunciated in the O.M. of 24.12.1980 will apply to Scheduled Castes and Scheduled Tribes officials subject to the modification that meritorious Scheduled Castes/Scheduled Tribes candidates, even in the extended field of choice should not be made to lose the advantage earned by virtue of their superior merit in comparison to others in the normal zone. It has, therefore, been decided that such of the meritorious Scheduled Castes/Scheduled Tribes candidates who are in the extended field and get selected should retain their position in the panel in accordance with their gradation by the D.P.C. To this extent, paragraph 3(c) of the O.M. dated 24.12.1980 may be deemed to have been amended. Thus, paragraph 3 (c) of O.M. dated 24.12.1980 was deemed to have been amended. 14. A reference to O.M. dated 11.7.1968 indicates that promotions against reserved vacancies (to Groups ‘C’ and ‘D’ posts) were to continue subject only to the requirement that the candidates possessed minimum prescribed standard. Thus, paragraph 3 (c) of O.M. dated 24.12.1980 was deemed to have been amended. 14. A reference to O.M. dated 11.7.1968 indicates that promotions against reserved vacancies (to Groups ‘C’ and ‘D’ posts) were to continue subject only to the requirement that the candidates possessed minimum prescribed standard. Thus, even though there was a possibility of doubt, the position had been explicitly clarified by the Government. The instructions dated 12.10.1990 and dated 22.4.1992, copies of which are Exhibits Ext.P8 and P9, refer to the earlier Memorandums. But there was no change in the matter of promotion to Group C and D posts. 15. Still further, it is the admitted position that a definite percentage of posts, viz. 15% is reserved for the members of Scheduled Castes. Even roster points have been fixed. It is also not disputed that the posts in Groups C and d are normally filled up on the basis of seniority-cum-merit while appointments to the posts in higher services are based on selection. It is also clear that the competent authority has made a basic distinction between Groups A and B on one hand and C and D on the other. While making promotions to the posts in Groups A and B, the benefit of reservation is admissible only when the candidate falls within the prescribed zone of consideration. No such restriction is applicable in the case of posts in Groups C and D. There is a clear rationale for the differential treatment. The instructions have been issued by the Government in exercise of the power under Article 16(4) of the Constitution. The Department is bound by the instructions. The Tribunal has rightly issued the direction to the Department. 16. No other point has been raised. 17. In view of the above, we find no merit in the writ petition. It is consequently dismissed. 18. This brings us to the consideration of O.P.No.20024 of 2002, which was referred to the Division Bench in view of the pendency of O.P.No.7445/2002. The said petition has been decided by the above order. 19. The petitioner in this case was appointed as a Junior Stenographer in the Office of the Marine Products Export Development Authority. She had joined service on October 31,1990. She is a member of the Scheduled Caste. In April 2002, a post of Senior Stenographer fell vacant. The said petition has been decided by the above order. 19. The petitioner in this case was appointed as a Junior Stenographer in the Office of the Marine Products Export Development Authority. She had joined service on October 31,1990. She is a member of the Scheduled Caste. In April 2002, a post of Senior Stenographer fell vacant. The 5th respondent was promoted to the post on ad hoc basis. A copy of the order of promotion has been produced as Ext.P5. Aggrieved by the order, the petitioner had represented. This representation was rejected vide order dated May 7, 2002. It was observed that her request for promotion “could not be considered as the promotion to the post of Senior Stenographer is by selection and there is no SC/ST eligible candidate available within the zone of consideration or even extended zone of consideration.” A copy of this order has been produced as Ext.P5. Aggrieved by the order, the petitioner has approached this Court through this petition under Article 226 of the Constitution. She prays that the order promoting respondent No.5, a copy of which has been produced as Ext.P6 as well as the order rejecting her representation (Ext.P8) be quashed. 20. The respondents contest the petitioner’s claim. A counter affidavit has been filed. The primary defence as raised in the counter affidavit is that she did not fall within the zone of consideration. Thus, she was rightly overlooked. 21. Learned counsel for the parties have been heard. Mr. Ajaykumar, learned counsel for the petitioner has contended that according to the instructions issued by the government of India, a member of the Schedule Caste has a right to be promoted against the reserved post irrespective of her position in the seniority list. On behalf of the third respondent, Mr. Anand has placed reliance on the instructions, which have been noticed above. We have examined the instructions. We have taken the view that in the case of posts in Groups C and D, the Department has to maintain a separate select list for members of Scheduled Castes. The reserved post has to be filled up by promotion of the person whose name is borne on the select list prepared for the members of that class. In the present case, the vacancy being reserved for members of Scheduled Cates, the writ petitioner had a right to be considered. The reserved post has to be filled up by promotion of the person whose name is borne on the select list prepared for the members of that class. In the present case, the vacancy being reserved for members of Scheduled Cates, the writ petitioner had a right to be considered. The respondents had erred in ignoring her claim. 22. Thus, the writ petition is allowed. The impugned orders are set aside. It is directed that the petitioner’s claim for promotion shall be considered with effect from April 9,2002. In case any additional vacancy is available, the 5th respondent may be adjusted that. Otherwise, she will have to make room for the petitioner. Both the writ petitions are decided in the above terms. No costs.