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Madhya Pradesh High Court · body

2003 DIGILAW 729 (MP)

SHEONATH PRASAD v. SARAN PAL JEET SINGH TULSI

2003-05-15

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
JUDGMENT : This order shall govern the fate of W.P. 2006/2000 (Shivnath Prasad vs. State of M.P. and others), and W.P. No. 1596/2000 (Sheonath Prasad vs. Shri V. K. Nigam and others) and W.P. No. 1597/2000 (Sheonath Prasad and L. P. Khare and others). 2. Feeling aggrieved by the order dated 15-11-1999 passed by the Madhya Pradesh State Administrative Tribunal (in short 'the Tribunal'), the petitioner has preferred this writ petition under Articles 226 and 227 of the Constitution of India seeking following reliefs : "(i) To call for the record for the satisfaction of this Hon'ble Court. (ii) To quash the impugned order in Annexure P-4 by issuance of an appropriate writ and/or direction. (iii) To command the respondents to keep intact the seniority of the petitioner on the post of EE, Supdt. Engineer and to consider him for further promotion, on the post of Chief Engineer, as per the rules, by issuance of an appropriate writ and or direction. (iv) any other relief deemed fit under the circumstances of the case may kindly be granted, together with cost of this petition." 3. The petitioner herein was respondent No. 2 and the respondent No. 1 herein was the applicant before the Tribunal. The respondent No. 1 filed an application before the Tribunal under section 19 of the Administrative Tribunals Act, 1985 challenging the promotion of the petitioner and the private respondents before the Tribunal who belong to the scheduled caste. Similarly, two other original applications bearing No. O.A. No. 417/93 and 1009/93 were filed by the employees whose names are referred to in the cause-title of the order of the Tribunal. The case of the respondent No. 1 is that he was appointed as Assistant Engineer in the Public Works Department after selection through Madhya Pradesh Public Service Commission. According to them, the petitioner and the other private respondents before the Tribunal who are scheduled caste officers were also selected and appointed as Assistant Engineers on the basis of the same selection conducted by the Public Service Commission. Being member of the scheduled caste, they were appointed against the reserved quota earmarked for the scheduled castes and their names in the select list published by the Public Service Commission appeared at serial Nos. 23, 24 and 25 below the name of the respondent No. 1. 4. Being member of the scheduled caste, they were appointed against the reserved quota earmarked for the scheduled castes and their names in the select list published by the Public Service Commission appeared at serial Nos. 23, 24 and 25 below the name of the respondent No. 1. 4. After their appointment the respondent No. 1 as well as the scheduled caste officers joined duties on the post of Assistant Engineer on different dates in the year 1972. It is not in dispute that the petitioner as well as private respondents before the Tribunal were placed at a lower position in the select list issued by the Public Service Commission and eventually when the seniority list of Assistant Engineer was drawn, their names stood below the respondent No. 1. In the gradation list issued showing the position of 1-4-1982 the names of the petitioners as well as private respondents before the Tribunal appeared at serial No. 187,189 and 190 while the names of respondent No. 1 and other similarly situated employees in their respective cases appeared at serial numbers between 168 and 186 and, therefore, undoubtedly the respondent No. 1 and other similarly situated employees were senior to these persons. 5. The applicant in original application No. 1009/93 before the Tribunal (V. K. Nigam) was appointed to the post of Assistant Engineer by way of promotion from the post of Junior Engineer on 16-7-1971 and his name in the gradation list published as on 1-4-1982 appeared at serial No. 154. 6. The petitioner and the private respondents before the Tribunal were promoted to the post of Executive Engineer in July, 1980 on account of reservation order issued by the Government by which vacancies were reserved for them in the post of Executive Engineer. The respondent No. 1 of this petition and the other applicant before the Tribunal were not considered for promotion on account of non-availability of quota for them for promotion in the general category to which they belong, however, they were considered and promoted to the post of Executive Engineer in the year 1985 i.e. much after the promotion of the employees of scheduled castes category to the post of Executive Engineer. According to the Tribunal, the seniority list has not been published after the year 1985 but the provisional gradation list was published on 18-6-1991 a copy of which was placed before the Tribunal as Annexure A-5 in O.A. No. 125/93. Objections to this list were invited and thereafter the provisional list was finalised vide order dated 8-10-1991. A copy of which was placed as Annexure A-6 before the Tribunal in O.A. No. 125/93. In both these lists the respondent No. 1 this petition and the other applicants before the Tribunal were shown at a lower position in the list of Executive Engineer than the Engineers belonging to the scheduled castes i.e. the petitioner of this petition. Hence, it made a cause for them to file original application challenging the assignment of their lower position than that of the petitioner who was private respondent before the Tribunal in the cadre of Executive Engineers. A prayer was made before the Tribunal that they be placed above the scheduled castes candidates who were the respondents before the Tribunal. The case of the respondent No. 1 and other applicants before the Tribunal was that they were not superseded for promotion to the post of Executive Engineer by the scheduled castes candidates as they were promoted on account of the reservation order and not by considering their claim for promotion vis-a-vis the respondent No. 1 of this petition and therefore the promotion which had been granted to them to the post of Executive Engineer from an earlier date cannot subsist for the purpose of higher seniority also on the post of Executive Engineer as they had not been superseded and they cannot lose their seniority in the feeder cadre that is to say in the post of Assistant Engineer. It was also putforth by respondent No. 1 who was the applicant before the Tribunal that in terms of General Administration Department circulars dated 2-5-1975 and 17-5-1975 as well as was, per the provision of M.P. Civil Services (General Conditions of Service) Rules 1961 (in short 'the General Service Rules') they are entitled to be placed above the scheduled castes candidates in the seniority list of Executive Engineer even though they had been promoted later than them. According to them, their inter se seniority in the feeder cadre of Assistant Engineer should be maintained in the promoted cadre of Executive Engineer. 7. According to them, their inter se seniority in the feeder cadre of Assistant Engineer should be maintained in the promoted cadre of Executive Engineer. 7. Returns were filed by the private respondents before the Tribunal as well as by the State. In the return the claims of the applicants before the Tribunal were denied. According to the return, the private respondents before the Tribunal were promoted much earlier on the basis of the recommendations of a different DPC which met in a different year and hence they became senior to the respondent No. 1 (who was the applicant before the Tribunal) by virtue of their earlier date of officiation on the post of Executive Engineer even though such officiation was a result of application of the reservation orders. According to their returns, they are entitled for higher seniority on the basis of the circulars of the Government dated 2-5-1975 and 17-5-1975. The private respondents before the Tribunal also raised the objection of limitation. According to them, the application filed before the Tribunal was barred by time. The Tribunal found the original application to be within time and on the merits after giving its anxious consideration on the pleadings of the parties, and on the basis of the material placed before it arrived at the finding as under : "Therefore, all the applicants are entitled to be considered for promotion to the post of Superintending Engineer from a date prior to the date on which private respondent No. 2 was promoted, therefore, it is directed that cases of all these applicants as well as of any other similarly placed Executive Engineers who are senior to private respondent No. 2, considering the ratio of this decision being rendered by us shall be considered for promotion to the post of Superintending Engineer by a review Departmental Promotion Committee and promoted if found fit within two months from the date of receipt of this order by the respondent State and consequential benefit of seniority and pay fixation shall also be allowed to them. The cases of such of the officers so promoted to the post of Supdg. The cases of such of the officers so promoted to the post of Supdg. Engineer shall also be considered for further promotion to the post of Chief Engineer from a day immediately prior to the date of promotion of private respondent No. 2, if he has been promoted, by a review Departmental Promotion Committee within a further period of two months and if found fit they shall be promoted with consequential benefits of pay fixation and seniority. As a result of promotion of any such officer (s) to the post of Chief Engineer, if it becomes necessary to revert private respondent No. 2 from the post of, Chief Engineer for want of post then such order shall also be passed within the aforesaid period of two months. No arrears of pay shall however be given as a result of aforesaid pay fixations as the seniority of the applicants was under dispute in the present cases vis-a-vis the private respondents." 8. Feeling aggrieved by the order passed by the Tribunal, the petitioner has challenged the validity of the order by preferring this writ petition under Articles 226 and 227 of the Constitution of India. 9. We have heard Shri D. K. Dixit, learned counsel for the petitioner, and Shri Ravindra Shrivastava, learned senior counsel with Shri Tamrakar for respondent No. 1 as well as Shri S. K. Yadav, learned Government Advocate for the State. 10. It has been strenuously urged by the petitioner that he was promoted to the post of Executive Engineer much earlier to the respondent No. 1 and thereafter he was promoted to the post of Superintending Engineer. The respondent No. 1 was promoted to the post of superintending Engineer later on and, therefore, he cannot be equated with the petitioner and the order of the Tribunal is palpably illegal. It has also been putforth on behalf of the petitioner that the respondent No. 1 is not entitled for the seniority over and above him on the post of Executive Engineer. The circulars relied by the respondent No. 1 do not hold the field as these circulars relates to the inter se seniority among the three categories viz. scheduled castes, scheduled tribes and general category. According to the petitioner, the Tribunal failed to consider Rule 12 of the General Service Rules. The circulars relied by the respondent No. 1 do not hold the field as these circulars relates to the inter se seniority among the three categories viz. scheduled castes, scheduled tribes and general category. According to the petitioner, the Tribunal failed to consider Rule 12 of the General Service Rules. In nutshell the entire case of the petitioner is that because they were promoted much earlier than respondent No. 1 his claim for seniority is not tenable. The reliance has been placed in the case of Akhil Bhartiya Soshit Karamchari Sangh vs. Union of India, AIR 1996 SC 3534 . 11. Combatting the aforesaid submissions of the counsel for the petitioner, it has been contended by Shri Ravindra Shrivastava, learned senior counsel that the respondent No. 1 is entitled to a higher seniority in the promotional cadre of Executive Engineer which should be based on the seniority maintained in the feeder cadre of Assistant Engineer irrespective of the date of the promotion. It has been putforth by the learned senior counsel that it has been incorrectly adverted to by the petitioner that he is entitled to get his seniority counted in the cadre of Executive Engineer from the date of their actual officiation. Heavy reliance has been placed by him on the case of Ajit Singh Januja and others vs. State of Punjab and others, (1996) 2 SCC 715 and Ajit Singh and others vs. State of Punjab and others, (1999) 7 SCC 209 . On behalf of the State of Madhya Pradesh, it has been contended that on account of amendment made in Article 16(4A) in the Constitution, the law laid down in the case of Ajit Singh I and Ajit Singh II (supra) have lost their base and applicability. The stand of the State Government is that the reserved category employees were promoted almost five years earlier than the general category. The reserved category persons were promoted to next higher post of Superintending Engineer on 7-4-1993 while the general category person like the applicant in O.A. No. 125/1993 was promoted as Superintending Engineer on 8-6-1995. As a matter of fact the counsel for the State has supported the case of the petitioner. 12. The moot questions to be decided in the present facts and circumstances of the case are that : 1. As a matter of fact the counsel for the State has supported the case of the petitioner. 12. The moot questions to be decided in the present facts and circumstances of the case are that : 1. Whether the general category candidates are entitled to higher seniority in the promotional cadre of Executive Engineer as they were senior in the feeder cadre of Assistant Engineer irrespective of their date of promotion ? 2. Whether the reserved category candidates should be held to be senior to that of general category candidates on account of their length of seniority in the cadre of Executive Engineer from the date of their actual officiation based on their regular promotion to this post ? 13. To deal the above said questions which arise in the case, it shall be apposite to read the relevant rules which are applicable in the present case as well as the departments circulars dated 2-5-1975 and 17-5-1975. 14. The recruitment to the promotions within the service are governed by the provisions of M.P. Public Works Department Engineering (Gazetted Service Recruitment) Rules 1969 (in short the 'Recruitment Rules'). The appointment to the post of Executive Engineer under these rules is required to be made hundred percent by promotion of Assistant Engineer in accordance with Schedule-II of the said Rules. As per rule 13 of the Recruitment Rules the scrutiny of the cases of eligible officers in the feeder cadre is made by the Committee which makes the preliminary selection for promotion of eligible candidates as per conditions of eligibility criteria laid down in Rule 14 and other provisions of the Rules. The selection is required to be made on the basis of merit and suitability in all respects with due regard to seniority according to Rule 14 of the Recruitment Rules. Rule 14 of the said Rule also contemplates that merely on the basis of completion of a prescribed year of service a junior person cannot be considered for promotion in preference to a person who is senior to him. The Committee constituted under Rule 14 would thereafter prepare a list which shall be arranged as per criteria laid down under Rule 15 which would be in the order of seniority. The Committee constituted under Rule 14 would thereafter prepare a list which shall be arranged as per criteria laid down under Rule 15 which would be in the order of seniority. No doubt the Rule contemplates that if a junior officer having an exceptional merit and suitability in the opinion of such Committee may be placed in a higher cadre in the list than that of the officers who are senior to him. The list which is prepared by the Committee is required to be sent to the Public Service Commission under Rule 16 and after its approval under Rule 17 it would then become a select list. The Public Service Commission thereafter approve the select list and then the appointments from such list would be made in the same order in which the names of the officers appeared in the select list. Thus, it becomes crystal clear that the recruitment would be in such a manner as provided in the select list and the Recruitment Rules would not permit any deviation from the order in which the names of officers appeared in the select list while making the promotion. 15. General Service Rules governs the promotions in the civil services. The relevant extracts of clause (b) and clause (c) of this Rule are relevant which read thus : "(b) Promoted Government servants - A promoted Government servant shall count his seniority from the date of his confirmation in the service to which he has been promoted and shall be placed in the gradation list immediately below the last confirmed member of that service but above all the probationers, Provided that where two or more promoted Government servants are confirmed with effect from the same date, the appointing authority shall determine their inter se seniority in the service in which they are confirmed, with due regard to the order in which they were included in the merit list, if any, prepared for determining their suitability for promotion and their relative seniority in the lower service from which they have been promoted. (c) Officiating Government servants - The inter-se seniority of Government servants promoted to officiate in a higher service or a higher category of posts shall, during the period of their officiation, be the same as that in their substantive service or grade irrespective of the dates on which they began to officiate in the higher service or grade, Provided that - (i) if they were selected for officiation from a list in which the names of Government servants considered suitable for trial in a promotion to the higher service or grade where arranged in order of merit, their inter-se seniority shall be determined in accordance with the order of merit in such list. (ii) xx xx xx(iii) xx xx xx (iv) xx xx xx" On a bare perusal of this Rule, it would become graphically clear that inter se seniority of the Government servants promoted to officiate in higher service or higher category of post would be the same during the period of officiation as in the substantive service or grade from which they were promoted irrespective of the dates on which they began to officiate in the higher service or grade. It is also clear that inter se seniority in the post of officiation would be determined in accordance with the order of merit in the select list from which they were promoted. In the final gradation list published on 8-10-1991 for the post of Executive Engineer, the petitioner was shown senior to respondent No. 1 for the simple reason that his promotion was based on roster point in the year 1980. As per Rule 12 of General Service Rules and particularly clause (i) and (c) the inter se seniority of the petitioner and the respondent No. 1 was promoted to officiate in higher category of post is to be the same during the period of their officiation in their substantive service. 16. The Executive Memoranda of the State Government dated 2-5-1975 and 17-5-1975 which provide for reservation in promotion as well as provisions made for fixation of inter se seniority also between those promoted out of turn, namely, reserve category candidates based on roster-point and the general category candidates. The rule of seniority in such a situation is engrafted in para 3(3) of the Memorandum that their inter se seniority on the post from which they were promoted shall be clearly maintained. The rule of seniority in such a situation is engrafted in para 3(3) of the Memorandum that their inter se seniority on the post from which they were promoted shall be clearly maintained. The memorandum dated 17-5-1975 contains in relation to the seniority of the promoted employees including the reserved category officers in the promoted cadre/post as also their confirmation on the promoted post. It has been laid down that the inter se seniority in the promoted post of all the promoted officers including the reserved category officers would be the same as was in the feeder cadre from which they were promoted. It is not the case of the petitioner that his name was included in the select list on account of his exceptional merit at higher position than his senior officer. In that case his seniority has to be fixed accordingly at the relevant higher post. The Tribunal has quoted sub-para 3 of para 3 of the above said memorandum and we think it proper to reproduce the said para which reads thus : 17. Even otherwise also on the principles of equality and fairness, the respondent No. 1 who belongs to general category candidate and was not superseded based on comparative assessment of merit by the petitioner, as such he cannot be made to lose his seniority when he is promoted on arrival of his turn in due course. Apart from this, sub-clause 6 of para 5 of the above said memorandum speaks about the confirmation on the promoted post and according to which the officers would be confirmed in accordance with their post in the select list which would mean that the purpose of reservation is that there should be no reservation for the reserved category officers in the posts available for confirmation. In its true sense, the above said memorandum of the Government provides to maintain the same seniority as in the lower feeder cadre i.e. Assistant Engineer cadre even if a reserved category officer had been given accelerated promotion on account of roster-point which would mean if a junior reserved category officer had been promoted earlier than his senior general category officer then in the promoted cadre inter se seniority would remain the same as in the feeder cadre irrespective of the date of promotion. Their earlier promotion would not confer any right in them for the grant of higher seniority. 18. Their earlier promotion would not confer any right in them for the grant of higher seniority. 18. There is no dispute that respondent No. 1 was promoted as Executive Engineer in the year 1985 and the petitioner of this petition and other private respondents before the Tribunal were promoted in the year 1980. These promotions were made on account of different select lists drawn out on the basis of recommendation of different Departmental Promotion Committee and therefore impugned seniority list shows that neither respondent No. 1 nor private respondents before the Tribunal were confirmed as Executive Engineer on the dates when the different original applications were filed and therefore on the basis of Rule 12(c) of General Service Rules coupled with the instructions emphasised in sub-para 3 of para 3 of the above said memorandum dated 17-5-1975 are attracted and would come into play and on that basis the inter se seniority between the reserved category candidates and general category candidates in the promoted post of the Executive Engineer has to be determined and thus the seniority has to be determined and maintained from their feeder cadre for the purpose of the promotion irrespective of the earlier date of promotion and consequently of officiation of reserved category officers due to the application of roster system. We have held so on the basis of the law laid down in the case of Ajit Singh (I) and Ajit Singh (II) (supra). In the case of Ajit Singh (II) the Apex Court while considering the prospectivity of the Ajit Singh (I), case came to hold thus : "89. It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only to remove hardship such roster-point promotees are not to face reversions, - then it would, in our opinion be, necessary to hold - consistent with our interpretation of Articles 14 and 16(1) that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while Courts can relieve immediate hardship arising out of a past illegality, Courts cannot grant additional benefits like seniority which have no element of immediate hardship. In our view, while Courts can relieve immediate hardship arising out of a past illegality, Courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10-2-1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10-2-1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the "prospectivity" point in relation to R. K. Sabharwal vs. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481 . 90. Coming to the "prospectivity" of Ajit Singh Januja vs. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 decided on 1-3-1996 the question is in regard to the seniority of the reserved candidates at the promotional level where such promotions have taken place before 1-3-1996. 91. We have accepted, while dealing with Points 1 and 2 that the reserved candidates who get promoted at two levels by roster points (say) from Level 1 to Level 2 and Level 2 to Level 3 cannot count their seniority at Level 3 as against senior general candidates who reached Level 3 before the reserved candidates moved up to Level 4. The general candidate has to be treated as senior at Level 3." 19. At this juncture, we would also like to refer para 15 and 16 of the judgment of Ajit Singh (I) (supra) which had also been relied upon by the Tribunal : "15. When framers of the Constitution by Article 16 guaranteed equality of opportunity in matters of public employment, they aimed at combining democratisation with efficiency. In the process of democratisation Article 16(4) enabled the State to make provisions for reservation of appointments 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. In the process of democratisation Article 16(4) enabled the State to make provisions for reservation of appointments 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. As has been pointed out by this Court that at the same time Article 335 of the Constitution enjoins to take into consideration the claims of the members of the Scheduled Castes and Scheduled Tribes "consistently with the maintenance of efficiency of the administration" while making appointments to services and posts in connection with the affairs of the Union or of a State. Thus it has been conceived by our Constitution that a process should be adopted while making appointments through direct recruitment or promotion in which the merit is not ignored. For attracting meritorious and talented persons to the public services, a balance has to be struck, while making provisions for reservation in respect of a section of the society. This Court from time to time has been issuing directions to maintain that balance in the public services so that there should not be discontentment, heartburning and frustration, which can never be held to be in the larger interest of the society. It has been pointed out in the case of Indra Sawhney that reservation in promotions at various stages has resulted in considerable discontentment because many senior persons in spite of their efficiency and dedicated work find themselves superseded by their juniors belonging to the Scheduled Castes or Tribes for that reason alone. In many cases seniors to their horror find themselves made junior to even those who actually worked as their subordinates due to this factor alone. All concerned who are involved and interested in the uplift and growth of the nation have to work out a system by which the injustice done to a section of people in our society at a certain period of history can be rectified by providing protections to their descendants, but we have to be conscious, at the same time that the efficiency of the administration of the country is not harmed and there is no reverse discrimination. Promotion is an important incident of service. It covers both advancement between grades within the same class and between different classes. Seniority in service is one of the important factors in making promotion. Promotion is an important incident of service. It covers both advancement between grades within the same class and between different classes. Seniority in service is one of the important factors in making promotion. Even where process of promotion by selection is adopted, seniority has an importance in case of equal merit. The principal object of a promotion system is to secure the best possible incumbents for the higher position while maintaining the morale of the whole organisation. The best public interest is served when equal opportunities for promotion exist for all qualified employees. Civil servants are able to move up "the promotion ladder" as the merit deserves and the vacancies occur. Right to equality enshrined in the Constitution is to be preserved by preventing reverse discrimination as well. The guarantee of equality requires maintenance of original or panel inter se seniority between the general category candidate and the earlier promoted reserved category candidate under the reservation policy, for promotion to the higher general vacancy. 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 to 16. 16. We respectfully concur with the view in Union of India vs. Virpal Singh Chauhan, 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. The 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 is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe 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 supersede his seniors belonging to the general category. 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 supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-a-vis 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 had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution." 20. Besides the aforesaid reasoning which we have ascribed hereinabove, it maybe seen that the promotion to the reserved category candidates were not given on account of any exceptional merit or suitability but only on account that they belong to a particular category and class. The case of the petitioner is also not as such that he was promoted on account of exceptional merit or suitability. The accelerated promotion allowed to the reserved category candidates cannot override or extinguish the higher seniority of the general candidates. 21. The case of the petitioner is also not as such that he was promoted on account of exceptional merit or suitability. The accelerated promotion allowed to the reserved category candidates cannot override or extinguish the higher seniority of the general candidates. 21. Before parting we may add that the State Government has not challenged the order of the Tribunal, on the other hand it implemented it and it is the wisdom of the State Government to lay down the rule of seniority balancing the right of equality in a just and fair manner between the candidates of reserved category and general category. 22. On the basis of the reasons which we have acribed hereinabove in detail, the case of Akhil Bhartiya Soshit Karmachari Sangh (supra) is not applicable in the present facts and circumstances and so as the case law cited on behalf of the State Government. These case laws have their different connotation and have no applicability in the present facts and circumstances of the case. 23. In this view of the matter, we do not find any illegality of perversity in the order of the Tribunal. The reasons assigned by the Tribunal are cogent and we hereby give our stamp of approval to it. 24. In the result, the petition is devoid of any force and the same is hereby dismissed.