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Jharkhand High Court · body

2008 DIGILAW 550 (JHR)

Shivanand Roy v. State of Jharkhand

2008-05-13

M.KARPAGAVINAYAGAM, N.N.TIWARI

body2008
Judgment N.N. Tiwari, J.- These writ petitions pose the common questions based on identical factual backgrounds and with the consent of the parties, the same have been heard together and are being disposed of by this common judgment. 2. The petitioners have made three fold prayers in these writ petitions:- (i) For declaring Section 4(6) of the Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. & OBC) Act, 2001 ultra vires, being violative of the provisions of Article 16 of the Constitution of India. (ii) For quashing Memo No. 2377 dated 13.6.2007 (Annexure-5) whereby the respondent Nos. 4 & 5 have published the provisional seniority list of Executive Engineers by giving benefit of 85th Amendment of the Constitution of India to the Scheduled Castes and Scheduled Tribes without following the guidelines framed by the Hon'ble Supreme Court in the case of M. Nagraj & Ors. vs. Union of India & Ors. [ 2006(8) SCC 212 ]. (iii) For direction on the respondents not to grant promotion to the Scheduled Castes and Scheduled Tribes Officers in excess of their quota in pursuance of 85th Amendment of the Constitution of India contrary to the guidelines of the Hon'ble Supreme Court in the case of M. Nagraj & Ors. vs. Union of India & Ors. 3. As agreed by learned counsel for the parties, W.P.(S) No. 3924/2007 has been taken as the lead case. The case briefly stated is that the petitioners are the Executive Engineers in the Water Resources Department, Government of Jharkhand. The said Executive Engineers are to be next promoted to the post of Superintending Engineer. There are 47 posts of Superintending Engineer in the Water Resources Department as on 1.1.2007. 4. The State of Jharkhand came with a legislation for providing reservation to different classes, namely, Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. & G.B.C.) Act, 2001 [hereinafter referred to as 'the said Act']. Section 4(6)(Ka) of the said Act has been challenged by the petitioners. 4. The State of Jharkhand came with a legislation for providing reservation to different classes, namely, Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. & G.B.C.) Act, 2001 [hereinafter referred to as 'the said Act']. Section 4(6)(Ka) of the said Act has been challenged by the petitioners. The said Section provides that "in case of non-availability of suitable candidates from Scheduled Castes and Scheduled Tribes for appointment and promotion against the reserved vacancies, the reservation for them in the vacancies shall continue for three recruitment years and if suitable candidates are not available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled up by exchange shall be treated as reserved for the candidates of that particular category who are actually appointed. 5. Section 4(2) of the said Act provides for 73% reservation for the candidates of reserved categories. The said provision was challenged in this Court in W.P.(PIL) No. 3696/2002 and W.P.(PIL) No. 4707/2001. An interim order was passed in the said writ petitions directing the State Government not to reserve the posts exceeding 50%. Accordingly, 10% of the total seat are reserved for Scheduled Castes candidates and 26% of the total seat are reserved for Scheduled Tribes candidates. For the total strength of 47, the seat position of different categories is as follows:- General category 22 Scheduled Castes Category 10 Scheduled Tribes Category 5 Vacant position 6. According to the said distribution, 10 posts of Superintending Engineer are occupied by Scheduled Castes category which is more than 10% of the total strength. 5 posts are occupied by the Scheduled Tribes category which is less than the quota of 10 seats reserved for Scheduled Castes category. The vacant posts of Superintending Engineers are to be filled up by the candidates according to their seniority in the gradation list. If the vacant post is reserved for the Scheduled Castes candidates by giving them promotion, the percentage fixed for the Scheduled Castes category will exceed from 10%, contrary to the provisions of Section 4(6)(Ka). 7. It has been stated that at present more than 10% seats are reserved for Scheduled Castes category, but there is no candidate for filling up the quota of the Scheduled Tribes. 7. It has been stated that at present more than 10% seats are reserved for Scheduled Castes category, but there is no candidate for filling up the quota of the Scheduled Tribes. The State Government has thus contemplated to fill up those vacancies earmarked for Scheduled Tribes categories by giving promotion to the candidates of Scheduled Castes category. In such situation, the representation of Scheduled Castes category will exceed from 10% to 20% which is contrary to the provisions which provides for reservation of only 10% of the total seats were reserved for the Scheduled Castes category. In view of the backwardness and inadequacy of representations, the State Government has fixed the ceiling limit of reservation for the Scheduled Castes to 10%. And if the exchange of reservation between the Schedule Castes and Scheduled Tribes is permitted, number of employees of one reserved category appointed by reservation, will go beyond reservation prescribed for that category and the same will be against the spirit of post based reservation. The Central Government in its notification vide O.M No. 36012/17/ 2002-Estt.(Res.) dated 6.11.2003 of the Ministry of Personnel and Training prohibits such exchange of post between two reserved categories. In the case of M. Nagraj vs. The Union of India, the Hon'ble Supreme Court has held that before giving the benefit of 85th Amendment of the Constitution the State Government has to collect quantifiable data showing backwardness and inadequacy of the representation of that class in public employment. 8. The State Government contrary to the said decision of the Hon'ble Supreme Court has made and issued the seniority list of the Executive Engineers, Water Resources Department, Government of Jharkhand by Memo No. 2377 dated 13.6.2007 fixing the seniority in terms of the 85th Amendment, of the Constitution of India. The State of Jharkhand has published the final seniority list of Assistant Engineers after bifurcation by Memo No. 2380 dated 13.6.2007. In the said seniority list, the persons, who are junior to the petitioners, have been placed above them. By giving 'benefit of the 85th Amendment of the Constitution, several persons, who were junior to the petitioners, were given higher posts of Superintending Engineer which would be evident from Memo No. 2596 dated 29.6.2007. In the said seniority list, the persons, who are junior to the petitioners, have been placed above them. By giving 'benefit of the 85th Amendment of the Constitution, several persons, who were junior to the petitioners, were given higher posts of Superintending Engineer which would be evident from Memo No. 2596 dated 29.6.2007. Some persons whose names did not appear in the seniority list of the Assistant Engineers, have been also given the post of Superintending Engineer by inserting their names in the seniority list of the Executive Engineers. In W.P.(S) No. 578/04 [Kavita Kumari Kandhw & Ors. vs. State of Jharkhand & Ors.], it was directed that the persons who are not the residents of the State of Jharkhand are not entitled to get the benefit of reservation, but the State of Jharkhand contrary to the said decision has given the benefit of the reservation in promotion to those persons who are not even the residents of the State of Jharkhand, for instance, Sarju Chaudhary, Braj Mohan Das, Birendra Kumar Ram, Mrinal who are the residents of the State of Bihar have been given benefits of reservation who are not entitled for the same in the State of Jharkhand. The petitioners protested against them by filing representations, but the same has not been considered and no order has been passed. The respondents have acted contrary to the guidelines given by Hon'ble Supreme Court in M. Nagraj (supra) and in violation of Section 4(6) of the said Act. 9. In W.P.(S) Nos. 630/2007, 1066/ 2007 and 4073/2007, the petitioners have made the same grievance based on almost identical facts. 10. The State-respondents have contested three writ petitions. In their counter affidavit it has been stated, inter alia, that the reservation of vacancies in the posts and services in the State is regulated by the statutory provisions of 'the Jharkhand Reservation of Vacancies in Posts and Services (for S.C., S.T. & OBC) Act, 2001 . According to the provisions of Section 4 of the said Act, 10% of the vacant post is reserved for the members of the Scheduled Castes and 26% for the candidates belonging to the Scheduled Tribes. According to the provisions of Section 4 of the said Act, 10% of the vacant post is reserved for the members of the Scheduled Castes and 26% for the candidates belonging to the Scheduled Tribes. Under the provisions of Section 4(6)(a) of the said Act, in case of non-availability of suitable candidates from the Scheduled Castes and Scheduled Tribes category both for appointment and promotion, the vacancies are carried over and kept reserved for such candidates for three consecutive years. In case of non-availability of the candidates in that category even thereafter there is provision for exchange of seats inter se between the Scheduled Castes and Scheduled Tribes. In M. Nagraj case (supra) the Hon'ble Supreme Court of India has upheld the constitutional validity of Articles 16(4) and 4(a) providing for reservation in promotion to the members of the Scheduled Castes and Scheduled Tribes subject to a maximum limit of 50%, as also the constitutional validity of the 85th Constitutional Amendment providing consequential seniority to the members of the Scheduled Castes and Scheduled Tribes on promotion with retrospective effect from 17.6.1995. In view of the retrospective effect of the 85th Constitutional Amendment Act from 17.6.1995, the impugned gradation list of Executive Engineers has been prepared which is wholly valid and justified. The persons who were appointed and serving in the State of Bihar before creation of the State of Jharkhand and who have been allocated the Jharkhand Cadre in accordance with Part VIII of the Bihar Reorganization Act, 2000, cannot be denied the said benefits. Their rights are protected under the provisions of Section 73 of the Bihar Reorganization Act, 2000 in respect of the service condi- . tions applicable immediately before the appointed day and, therefore, they cannot be deprived of the reservation facility in promotion on the ground that their appointments were made by the then State of Bihar on the basis of the caste certificate issued by the authority of the State of Bihar. Notification No. 2598 dated 29.6.2007 (Annexure-3) is only a transfer order issued by the department for posting the officials in different capacities. In case of some vacant posts, current charge of superior posts has been assigned to the officers for the time being until regular promotion and posting on those posts. Notification No. 2598 dated 29.6.2007 (Annexure-3) is only a transfer order issued by the department for posting the officials in different capacities. In case of some vacant posts, current charge of superior posts has been assigned to the officers for the time being until regular promotion and posting on those posts. It has been made explicitly clear in the transfer order that no additional financial benefit will be given to the Assistant Engineers for holding the charge of the superior post. The same is stop gap arrangement. After the regular promotion and posting of Executive Engineers the ad hoc arrangement will automatically come to an end and neither the same will be a basis for promotion nor it will be treated as a precedent. The said arrangement cannot be' treated and equated with that of the promotion. The provisions of reservation cannot be applied in the case of transfer and posting. It has been stated that exchange of vacant seats between the Scheduled Castes and Scheduled Tribes candidates, cannot be said to be impermissible if it is within the limit of 50%. The Jharkhand Reservation Act provides for exchange of the reserved seats in between the Scheduled Castes and Scheduled Tribes candidates, as the said seats cannot go to the General category candidates or to the OBC candidates as per the decision of the Apex Court. According to the provisions of the said Act, exchange of reserved seats, is not to be counted against the current year vacancy rather against the backlog vacancy within the meaning of Article 16(4)(B) of the Constitution of India as introduced by the Constitution 81st Amendment Act, 2000, as has been held by the Supreme Court in M. Nagraj case (supra). The Jharkhand Reservation Act, 2001 do not violate any provision of the Constitution and does not provide for reservation beyond the maximum limit of 50%. However, the 50% limitation is not applicable in case of backlog and unfilled vacancies of the past years. The Officers of those categories, who have been allocated Jharkhand Cadre, are protected in the matter of service conditions under Part-VIII of the Bihar Reorganization Act, 2000. The petitioners, thus, could not make out any case and no relief can be granted by this Court as prayed for by them. 11. The Officers of those categories, who have been allocated Jharkhand Cadre, are protected in the matter of service conditions under Part-VIII of the Bihar Reorganization Act, 2000. The petitioners, thus, could not make out any case and no relief can be granted by this Court as prayed for by them. 11. Learned counsel for the petitioner while addressing the Court submitted that under the garb of provision 4(6)(Ka) of the Jharkhand Reservation Act. 2001 the respondents have given promotion to the candidates of the reserved category to the post of the Executive Engineers in excess of their cadre strength of 10%. The settled principle of post based reservation has not been followed. The number of post filled up by reservation of any category in a cadre should be equal to the quota prescribed for that category. If the exchange of reservation between the Scheduled Castes and Scheduled Tribes, as provided under Clause 4(6)(Ka) of the said Act is allowed, the number of one reserved category by such reservation will go beyond the post based quota prescribed for that category is violation of Article 16 of the Constitution. After introduction of the post based reservation, it is not permissible to fill up a post reserved for Scheduled Tribes by Scheduled Castes candidates and vice versa by way of exchange of the posts between the Scheduled Castes and Scheduled Castes (sic-Tribes?). The Central Government has also dealt with such situation and clarified the position in its notification O.M. No. 36012/17/2002-Estt. (Res.) dated 6.1.1.2003. It has been made clear that the exchange of reservation between the Scheduled Castes and Scheduled Tribes is not permissible in view of the recognition of the post based reservation by the Hon'ble Supreme Court in R.K. Sabharwal case reported in (1995)2 SCC 745 and in M. Nagraj case reported in (2006)8 SCC 212 . If exchange of reservation between the Scheduled Castes and Scheduled Tribes is permitted, number of employees of one reserved category appointed by reservation will go beyond the reservation quota prescribed for that category. It would be against the spirit of post based reservation and is impermissible. Sub-section 6 of Section 4 of the Jharkhand Reservation Act, 2001 is in direct conflict with the said settled principles of law and is ultra-vires. It would be against the spirit of post based reservation and is impermissible. Sub-section 6 of Section 4 of the Jharkhand Reservation Act, 2001 is in direct conflict with the said settled principles of law and is ultra-vires. The law has been clearly laid down by the Hon'ble Apex Court while interpreting Article 16(4)(A) of the Constitution of India in M. Nagraj case. It has been held that the State is not bound to make reservation for the Scheduled Castes and Scheduled Tribes for the matters of promotion and that Article 16(4)(A) is only enabling provision and extent of reservation to be based on quantifiable data. The requirement namely backwardness of class, inadequacy of representation in public employment of that class and overall efficiency of the administration has to be seen and taken into consideration. Giving promotion to the eleven Scheduled Castes candidates to the promotional post of Executive Engineers in excess of their 10% cadre strength is contrary to law and is violative of Article 16(4)(A) of the Constitution of India. The said notification is not sustainable and is liable to be quashed. The State Government has fixed the extent of reservation for the Scheduled Castes up to 10% of the total sanctioned strength and the same cannot exceed the said limit in any situation and circumstances in view of the decisions of the Hon'ble Supreme Court in R.K. Sabharwal and M. Nagraj cases. It has been stated that both the said decisions of the Supreme Court categorically emphasized that the reservation in promotion or in appointments has to be on post based and not vacancy based. In that view, if one post is filled up by the roster for a particular category of candidate, the same cannot be filled up by any other category. The exchange of categories would amount to exceeding the percentage of reservation prescribed for a particular category which is not permissible. The ceiling limits of reservation of Scheduled Castes have already been achieved and the limit cannot be allowed to exceed by exchanging the same to the Scheduled Tribes categories. The part of Section 4(6)(Ka) of the Jharkhand Reservation Act, 2001 which provides for exchange of vacancies and treating the same reserved for that category, is invalid and liable to be quashed. 12. The part of Section 4(6)(Ka) of the Jharkhand Reservation Act, 2001 which provides for exchange of vacancies and treating the same reserved for that category, is invalid and liable to be quashed. 12. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that the impugned order giving promotion to the officers of reserved category of Water Resources Development, Government of Jharkhand is proper, legal and in accordance with the principles laid down by the Apex Court in M. Nagraj case (supra). In the said case the Hon'ble Supreme Court has considered the validity, interpretation and implementation of 77th, 81st, 82nd and 85th Constitutional Amendment Acts as well as the earlier Supreme Court decisions with retrospective effect. The Apex Court has upheld the constitutional validity of the said Amendments. The Constitution 77th Amendment Act, 1995 has inserted clause 4(a) in Article 16 of the Constitution providing for reservation in promotion to the members of Scheduled Castes and Scheduled Tribes. That amendment was introduced in the Constitution in order to overcome the judgment of the Supreme Court in Indra Sawhney case where it was held that reservation in appointments of post is confined to initial appointment and cannot be extended in the matter of promotion. The Constitution 81st Amendment Act,. 2000 introduced Clause 4(B) in Article 16 of the Constitution providing 'for treating the unfilled vacancies of a particular year reserved for promotion. As a separate class of vacancies to be filled up in any succeeding year or years without treating such vacancies with the vacancies of the year in which they are being the filled up. This Constitutional Amendment was brought about in view of the decision of the Supreme Court in R.K. Sabharwal case (supra). By the Constitution 82nd Amendment Act, 2000 a proviso was inserted at the end of Article 335 of the Constitution providing for relaxation in the qualifying marks in any examination or lowering down the standard of evaluation for reservation in the matter of promotion. The said amendment was brought about following the judgment of the Supreme Court in S. Binod Kumar VS. Union of India reported in 1996(6) SCC 580 . The said amendment was brought about following the judgment of the Supreme Court in S. Binod Kumar VS. Union of India reported in 1996(6) SCC 580 . The Constitution 85th Amendment Act; 2001 has been introduced in the Constitution with retrospective effect from 17.6.1995 i.e. the date of coming into force of the 77th Constitutional Amendment Act, providing for reservation in the matter of promotion with a view to give consequential seniority to the members of Scheduled Castes and Scheduled Tribes. The said amendment was brought to give effect to decision of the Supreme Court in Union of India vs. Virpal Singh Chauhan and Ajit Singh Januja vs. State of Punjab. Under the Constitution 85th Amendment Act, 2001, Clause 4(A) of Article 16 has been amended to provide for consequential seniority in the matter or promotion in favour of Scheduled Castes and Scheduled Tribes. The Jharkhand Reservation of Vacancies in Post and Services (S.C., S.T. & O.B.C.) Act, 2001 which is known as Jharkhand Reservation Act, provides for reservation of posts and services in the State in the matter of initial appointment as well as in the matter of promotion. Reservation of vacancies in posts and services in the matter of promotion is only available in case of Scheduled Castes and Scheduled Tribes whereas in the matter of initial appointment, reservation of vacancies in posts and services is available also to Other Backward Classes in addition to the members of Scheduled Castes 9.nd Scheduled Tribes. Section 4 of the Jharkhand Reservation Act provides for the extent of reservation for the members of Scheduled Castes and Scheduled Tribes which is at present 10% and 26% respectively. The quantitative extent of reservation to the tune of 26% in favour of Scheduled Tribes and 10% in favour of Scheduled Castes is not under challenge in the writ petitions. The petitioners have challenged only Clause 6(a) of the Jharkhand Reservation Act which proves for exchange of vacancies between the Scheduled Castes and Scheduled Tribes in case of non-availability of suit-able candidates for three consecutive years. The petitioners belonging to the General category have no locus standi to challenge the said exchange of the vacancies in between one reserved category to another reserved category. The petitioners belonging to the General category have no locus standi to challenge the said exchange of the vacancies in between one reserved category to another reserved category. The Apex Court in its judgment in R. K. Sabharwal case (supra) has made it clear that in the event of non-availability of reserved candidates at the roster point, it would be open to the State Government to carry forward the point in just and fair manner. The Constitution Bench of the Supreme Court in M. Nagraj Case (supra) has approved the said decision in R. K. Sabharwal case. In view of the said decisions of the Supreme Court unfilled vacancies on the roster point reserved for Scheduled Castes and Scheduled Tribes Candidates cannot be claimed by the candidates of General category. The principle of carry forward of unfilled vacancies has been laid down in M. Nagraj case. The carrying forward provisions as contained in Section 4(6)(A) .of the Jharkhand Reservation Act, thus, cannot be questioned. The impugned notification giving promotion to the members of the Scheduled Castes and Scheduled Tribes is in accordance with the provisions of law as also in accordance with the provisions of the Constitution 85th Amendment Act, 2001 and the said decisions of the Supreme Court. The prayer of the petitioner for a direction on the respondents not to give benefit of reservation to the persons who are not resident of the State of Jharkhand is wholly misconceived. The same issue was raised and decided by this Court in Kavita Kandhw & Ors. vs. State of Jharkhand reported in 2006(2) JCR 512 . The candidates belonging to the reserved category of Scheduled Castes and Scheduled Tribes were appointed by the erstwhile State of Bihar and. they have been allocated to the State of Jharkhand in accordance with the provisions of Part-VIII. of the Bihar Reorganization Act, 2000. The right of the reserved category officers is fully protected by the provisions of Sections 72 and 73 of the Bihar Reorganization Act, 2000. It has been submitted that all the writ petitions and the prayers made therein are wholly misconceived and the same are liable to be dismissed. 13. In support of their respective contentions both the parties have relied on the decisions of the Apex Court in R.K. Sabharwal case (supra) and in M. Nagraj case (supra). The said decisions have interpreted Article 16(1) read with Article 16(4). 13. In support of their respective contentions both the parties have relied on the decisions of the Apex Court in R.K. Sabharwal case (supra) and in M. Nagraj case (supra). The said decisions have interpreted Article 16(1) read with Article 16(4). Article 16(1) envisages equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(4) is an exception to Article 16(1). Article 16(4) begins with the non-obstante clause and intends to give adequate representation to backward communities by providing reservation in appointments to such community which is not adequately represented in the services under the State. 14. In Indra Sawhney vs. Union of India reported in 1992 Supp. (3) SCC 217 it was held by the majority view that the rule of 50% reservation limit laid down by the Supreme Court in M.R. Balaji vs. State of Mysore reported in AIR 1963 SC 649 was a binding rule and not a mere rule of prudence. It was further held that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. The Hon'ble Supreme Court pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the society. It should be read and harmonized in view of principle of Article 14, as the provision is restatement of the equality principle of the said Article. 15. In R.K. Sabharwal case, supra, the Supreme Court held that while general category candidates are not entitled to take the reserved posts; reserved category candidates are entitled to compete for the general category posts. 16. There has been a debate about the number of vacancies that could be reserved. Wanchoo, J. giving the dissenting judgment in G.M Southern Rly. vs. Rangachari reported in AIR 1962 SC 36 has observed that the requirement of Article 16(4) is only to give adequate representation and since Constitution-makers intended it to be a short-term measure, it may happen that all the posts in a year may be reserved. He was of the view that reserving a fixed percentage of seats every year may take a long time before inadequacy of representation is overcome. Therefore, the Government can decide to reserve the posts. He was of the view that reserving a fixed percentage of seats every year may take a long time before inadequacy of representation is overcome. Therefore, the Government can decide to reserve the posts. After having reserved a fixed number of posts, the Government may decide that till those posts are filled up by the backward classes, all appointments will go to them if they fulfil the minimum qualification. Once this number is reached, the Government, thereafter, cannot go for further reservations. The adequacy of representation has to be judged considering the total number of posts even if in a single year or for few years all seats are reserved, provided it is a short term Scheme. 17. The idea given by Wanchoo, J. in Rangachari case, supra, did not work in practice because most of the time even for limited number of reserved post, qualified reserved category candidates were not available, every year. 18. In order to cope with the said situation, the Government adopted carry forward rule where by the State may provide for carrying on the unfilled vacancies for the next year or instead of providing for carrying over the unfilled vacancies to the coming years, it may provide for filling up the vacancies from the general quota candidates and carry forward the unfilled reserved posts to the next year quota. But when the Supreme Court in Indra Sawhney case held that the rule of 50% is a binding rule, the problem arose when in a particular year due to carry forward rule more than 50% of vacancies are reserved. 19. In T. Devadasan vs. Union of India reported in AIR 1964 SC 179 the Apex Court held that filling of reserved category vacancies in the next year by carrying forward the vacancies will amount to 65% reservation of the total vacancy which is excessive and unconstitutional. In State of Kerala vs. N.M. Thomas reported in (1976)2 SCC 310 in which more than 50% vacancies went to Scheduled Castes candidates, the Apex Court held that the promotions made in the services as a whole is nowhere near 50% of the total number of the posts. The majority differed from the ruling of the Court in Devadasan case (supra) on the ground that the strength of the cadre as a whole should be taken into account. 20. The majority differed from the ruling of the Court in Devadasan case (supra) on the ground that the strength of the cadre as a whole should be taken into account. 20. The majority view, in Indra Sawhney case (supra) held that 50% rule should be applied to each year otherwise it may happen that if entire cadre strength is taken as a unit, the open competition channel gets choked for some years and meanwhile the general category candidates may become age barred and ineligible. The equality of opportunity under Article 16(1) is meant for each individual citizen while special provision under Article 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other. R.K. Sabharwal case (supra) is a case of promotion and the issue in this case was operation of roster system. The Supreme Court held that entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. With regard to the decision in Indra Sawhney case (supra) that reservation in a year should not go beyond 50%, the Hon'ble Court held that it applied to initial appointments. The operation of a roster for filling the cadre strength by itself ensures that the vacancies for reservation remains within the 50% limit when each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancies has to be filled by that category candidate, The Court was concerned with the possibility that reservation in entire cadre may exceed 50% limit if every year half of the seats are reserved. The Apex Court quoted with approval the judgment of the Division Bench of the Allahabad High Court in J.C. Malik VS. Union of India reported In (1978)1 SLR 844 (All) stating that if reservation is permitted in the vacancies after all the posts are filled in a cadre then serious consequences would ensue considerably affecting the interest of the general category. The Constitution (Eighty First Amendment) Act, 2000 added Article 16(4-B) which in substance gives legislative assent to the judgment in R.K. Sabharwal. 21. The Supreme Court in R.K. Sabharwal case held that although reservation in promotion was valid, such reservation will not affect the order of seniority. Thus, a person getting the benefit of reservation in promotion will not get added seniority also. 21. The Supreme Court in R.K. Sabharwal case held that although reservation in promotion was valid, such reservation will not affect the order of seniority. Thus, a person getting the benefit of reservation in promotion will not get added seniority also. His seniority will be governed by the panel position. By the Constitution (Seventy-Seventh Amendment) Act, 1995 the Parliament has made the said part of the decision in Sabharwal case (supra) ineffective by adding Article 16(4-A) and providing that the members of the Scheduled Castes and Scheduled Tribes getting reservation in promotion would also get the benefit of seniority, if any such provision has been made by the State. As noticed above, by the Constitution (Eighty-First Amendment) Act, 2000, which has been made effective from 9.6.2000, the 50% ceiling has also been diluted, if the State considers that any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. 22. The Constitution Bench of the Supreme Court considered the effect of Articles 16(4-A) & (4-B) vis-a-vis Articles 16(4) & 335 and other related aspects in the case of M. Nagraj & Ors. VS. Union of India & Ors. It has been held that Articles 16(4-A) and 16(4-B) form a composite part of the same scheme. The said Articles are both inspired by the observations of the Supreme Court in Indra Sawhney case (supra) and R.K. Sabharwal case (supra). They have nexus with Articles 17 and 46 of the Constitution and the same do not obliterate equality. In these cases the Constitution Bench of Hon'ble Apex Court has upheld the validity of the 77th, 81st, 82nd & 85th Constitutional Amendments subject to the limitations. The Constitution Bench has observed that in each case the Court has got to be satisfied that the State has exercised its option in making reservations in promotions for S.Cs. and S.Ts. In these cases the Constitution Bench of Hon'ble Apex Court has upheld the validity of the 77th, 81st, 82nd & 85th Constitutional Amendments subject to the limitations. The Constitution Bench has observed that in each case the Court has got to be satisfied that the State has exercised its option in making reservations in promotions for S.Cs. and S.Ts. and for which the State concerned will have to place before the Court the requisite quantifiable data in each case to satisfy the Court that such reservation is necessary on account of inadequacy of representation of S.Cs./S.Ts. in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution. The concept of reservation in Article 16(4) is hedged by three Constitutional requirements, namely, back-wardness of a class, inadequacy of representation in public employment of that class and overall efficiency of the administration. If the extent of reservation is excessive then it makes an inroad into the principle of equality under Article 16(1). 23. While considering the extent of reservation the Constitution Bench held that the reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. The Bench has approved the ceiling limit of 50% and held that the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. The Bench has also approved the judgment in R.K. Sabharwal case (supra) regarding the 'post specific roster' and not 'vacancy based roster'. The Apex Court further held that the operation of the roster for filling the cadre strength, by itself, ensures that the reservation remains within the ceiling limit of 50%. Specific slots for O.B.Cs., S.Cs. and S.Ts. as well as G.C. have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless that slot has to be filled only by the specific category. Specific slots for O.B.Cs., S.Cs. and S.Ts. as well as G.C. have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless that slot has to be filled only by the specific category. It has been held that each point in the roster indicates a post which on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone so that the question of clubbing the unfilled vacancies with current vacancies may not arise. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter. 24. Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling limit of 50% on current vacancies continues to remain. In working out the carry-forward rule two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. On one hand of the spectrum, there are unfilled vacancies; on the other hand, there is a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carryover of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. 25. The extent of reservation in public employment for a particular class is identified on the basis of the quantifiable data showing backwardness of that class and inadequacy of representation of that class in public employment keeping in mind maintenance of efficiency in administration. 26. In the instant case the extent of reservation given to the members of the Scheduled Castes as well as the members of the Scheduled Tribes in the State of Jharkhand is not in dispute. 26. In the instant case the extent of reservation given to the members of the Scheduled Castes as well as the members of the Scheduled Tribes in the State of Jharkhand is not in dispute. The State Government has fixed the ceiling limit of reservation for Scheduled Castes to 10% and that of the Scheduled Tribes 26%. The petitioners have challenged the validity of sub-section 4 of Section 6 of the Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. & O.B.C.) Act, 2001 and has prayed for quashing the Memo No. 2377 dated 13.6.07 whereby following the said provision 9f Section 4(6) of the Act, the respondents have purportedly published the provisional seniority list of the Executive Engineers by giving the benefit of 85th Amendment of the Constitution of India which provides for carrying forward of the vacancies of a particular reserved category in case of non-availability of the candidates for a period of three years and if the candidates of a particular category are not available even in the third year, the vacancies have been made exchangeable between the Scheduled Tribes and Scheduled Castes. After exchange of vacancies the appointments on the posts of another category should be made and those posts shall be deemed as reserved for that exchanged category. The petitioners have particularly challenged the said exchange clause of the categories on the ground that if posts are exchanged between the two categories with different quota percentage, the quota will get disturbed and the same will exceed the number of the posts fixed for the particular category. It has been submitted that if the exchange of reservation between the Scheduled Castes and Scheduled Tribes candidates is allowed, there will be excess representation of the category to which the posts will be given on exchange which would amount to treating unequals as equals which is not permissible and is violative of Article 14. The said clause of exchange of reservation quota is, thus, in direct conflict with the Constitutional scheme and is ultra vires. I find substance in the said submissions made on behalf of the petitioners. 27. In Atyant Pichhara Barg Chhatra Sangh & Anr. VS. Jharkhand State Vaishya Federation & Ors. The said clause of exchange of reservation quota is, thus, in direct conflict with the Constitutional scheme and is ultra vires. I find substance in the said submissions made on behalf of the petitioners. 27. In Atyant Pichhara Barg Chhatra Sangh & Anr. VS. Jharkhand State Vaishya Federation & Ors. reported in 2006(4) J.C.R. 67(SC) [:2006(4) JLJR (SC)74] the Supreme Court has held that treating two different classes similarly violates the mandate of Article 14 of the Constitution of India which provides for to "treat similar similarly and to treat different differently". The Hon'ble Apex Court held that to treat un-equals as equals also violates Article 14 of the Constitution of India. The State Government which has fixed a quota for the particular category on the basis of backwardness and on account of inadequacy in representation cannot deviated from the said policy decision by applying exchange method as introduced in the part of Section 4(6) of the said Act. It also violates the mandates of the Supreme Court in M. Nagraj case which prescribes the cadre strength as a unlit and the roster to be post-specific and not vacancy based. The same also violates the principle of imposition of a time-scale in the interest of efficiency in administration as mandated by Article 335 as the exchange would further disturb the time-cap as well which is envisaged in the said Section which does not mean to remove the cap only for the purpose of another reserved category. 28. To conclude it is held that the number of posts to be filled by reservation by any category at any point of time should be equal to the quota determined as per the percentage of reservation prescribed for that category. The same shall be equally applicable to the direct recruitment as well as in the case of promotion so that the number of posts filled by reservation of Scheduled Castes and Scheduled Tribes, as the case may be, in the cadre becomes equal to the number of posts earmarked for them. If the quota of reservation is not completed. the same would not lapse in case of post based reservation. The operation of roster for filling the cadre strength has to be maintained to ensure the reservation in accordance with the quota limit prescribed for S.C./S.T. respectively as has been held in M. Nagraj case. If the quota of reservation is not completed. the same would not lapse in case of post based reservation. The operation of roster for filling the cadre strength has to be maintained to ensure the reservation in accordance with the quota limit prescribed for S.C./S.T. respectively as has been held in M. Nagraj case. The roster should be post-specific and not vacancy based and specific slots have to be maintained in the roster. Each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate and any subsequent vacancy has to be filled by the candidate of that category alone. The same shall be subject to the replacement theory and within the limit of the time-scale as provided under Section 4(6) of the said Act as the carry forward rule. The part of sub-section 6 of Section 4 of the said Act which provides for exchange of the vacancies being arbitrary and violative of Articles 14 & 16 of the Constitution of India is, thus ultra vires. The notification based on the said provision of exchange of vacancies being Notification No. 2598 dated 29.6.07 issued by Water Resources Department, Government of Jharkhand, Ranchi with respect to SI. Nos. 27-37 in excess of 10% of cadre strength and contrary to the roster is, hereby, quashed. These writ petitions are allowed in the above terms. 29. However, there is no order as to costs. M. Karpaga Vinayagam, CJ.-I agree.