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Himachal Pradesh High Court · body

2013 DIGILAW 6 (HP)

Khatri Ram v. State of H. P

2013-01-01

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, Judge. Petitioners are working as Junior Basic Trained (J.B.T.) Teachers. J.B.T. Teachers’ is a district cadre. The seniority of this cadre is maintained on the basis of merit/date of appointment. Respondent-State has framed rules under Article 309 of the Constitution of India on 28.12.1973 called “the Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service Rules, 1973”. According to these rules, the posts of T.G.T are to be filled up 75% by direct recruitment and 25% by promotion from the category of J.B.T./C&V Teachers possessing the qualifications prescribed for direct recruitment. The minimum educational qualification is graduate in the subjects concerned from a recognized University with postgraduate degree/Diploma in teaching education. According to circular dated 20.11.1993, 15% posts out of 25% are to be filled up by promotion from J.B.T. category and 10% from C&V category. The Recruitment and Promotion Rules notified on 28.12.1973 were repealed by notification dated 22.10.2009. State Government has framed new rules called “the Himachal Pradesh, Elementary Education Department, Trained Graduate Teacher, (Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2009”. The total cadre strength of Trained Graduate Teachers is 14224. It is a non-selection post. The minimum educational and other qualifications required for direct recruits have been prescribed under rule 7. It is for the first time that the post has been categorized as T.G.T. (Arts), T.G.T. (Non-Medical) and T.G.T. (Medical). These posts are to be filled up as per rule 10, i.e. 25% by promotion (15% from JBT and 10% from C&V) and 75% by direct recruitment on regular basis or recruitment on contract basis as the case may be. The rules notified on 22.10.2009 have been further amended on 16.7.2011 whereby the candidate is required to pass B.A./B.Sc. with at least 50% marks and B.Ed./B.El.Ed. The rules are further amended on 31.5.2012 whereby the following qualifications for filling up the post of T.G.T. (Arts) have been prescribed: i. B.A./B.Com with at least 50% marks and one year Bachelor in Education (B.Ed). OR B.A./B. Com with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition norms and Procedure) regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 years Bachelor in Elementary Education (B.EI.Ed.). OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A. Ed. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 years Bachelor in Elementary Education (B.EI.Ed.). OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A. Ed. Or B.A./B. Com with at least 50% marks and 1-year bachelor in Education (B.Ed.) (Special Education). And ii) Pass in Teacher Eligibility Test (TET), to be conducted by HP Subordinate Services Selection Board in accordance with the guidelines framed by the NCTE for the purpose. 2. Trained Graduate Teacher (Non-Medical). i) B.Sc. (NM) with at least 50% marks and 1-year Bachelor in Education (B.Ed.). OR B.Sc. (NM) with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition norms and Procedure) regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.EL.Ed). OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.Sc. (NM).Ed. OR B.Sc. (NM) with at least 50% marks and 1-year Bachelor in Education (B.Ed.) (Special Education). OR Pass in Teacher Eligibility Test (TET), to be conducted by HP Subordinate Services Selection Board in accordance with the guidelines framed by the NCTE for the purpose. 3. Trained Graduate Teacher (Medical): i) B.Sc. (Medical) with at least 50% marks and 1-year Bachelor in Education (B.Ed.). OR B.Sc. (Medical) with at least 45% marks and 1-year Bachelor in Education (B.Ed) in accordance with NCTE (Recognition norms and Procedure) regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 years Bachelor in Elementary Education (B.EI.Ed.). OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.Sc. (Medical) Ed. OR B.Sc. (Medical) with at least 50% marks and 1-year Bachelor in Education (B.Ed) (Special Education). AND ii) Pass in Teacher Eligibility Test (TET), to be conducted by HP Subordinate Services Selection Board in accordance with the guidelines framed by the NCTE for the purpose. “Note:- Relaxation upto 5% in the qualifying marks shall be allowed to the candidates belonging to Scheduled Castes/Scheduled Tribes/OBC/PH categories.” II) Desirable Qualifications: Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.” 2. “Note:- Relaxation upto 5% in the qualifying marks shall be allowed to the candidates belonging to Scheduled Castes/Scheduled Tribes/OBC/PH categories.” II) Desirable Qualifications: Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.” 2. There is no change in the percentage of the post to be filled up by direct recruitment and by promotion, i.e. 75% by direct recruitment and 25% by promotion. 3. Ms. Jyotsna Rewal Dua has vehemently argued that the respondent-State has been making promotions from the feeder category of JBTs to TGTs (Medical) and (Non-Medical), who are junior to the petitioners in the seniority list of JBTs. She further contended that in larger public interest, if these posts are to be filled up from the persons, who are junior to the petitioners, the State should follow the principle of “catch up” and the consequential seniority may not be given to the persons who are junior to the petitioners but promoted before them as TGT. 4. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the respondent-State has been filling up 15% posts by way of promotion to the posts of TGT (Arts), TGT (Medical) and TGT (Non-Medical) from JBTs. According to him, out of total cadre strength of 14224, 1082 posts fall in quota of JBT (Arts), 682 posts fall in TGT (Non-Medical) and 355 posts fall in TGT (Medical). He further argued that the principle of “catch up” is not attracted in the present case. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. According to the Recruitment and Promotions Rules notified in the year 1973, as noticed hereinabove, 25% posts of TGTs in various streams, i.e. TGTs (Arts), (Non-Medical) and (Medical) are to be filled up from the feeder category of JBTs. Similarly, in the new Recruitment and Promotion Rules, amended from time to time, 15% posts of TGTs are to be filled up in various streams from the category of JBT Teachers. Respondent-State has admitted in its reply that it is nowhere clarified whether 15% promotion quota to TGT is based on recruitment of subject concerned on sanctioned strength of each stream, i.e. TGT (Arts), TGT (Non-Medical) and TGT (Medical). Respondent-State has admitted in its reply that it is nowhere clarified whether 15% promotion quota to TGT is based on recruitment of subject concerned on sanctioned strength of each stream, i.e. TGT (Arts), TGT (Non-Medical) and TGT (Medical). However, it is also stated in the reply that there is separate sanctioned strength of each stream, i.e. TGT (Arts), TGT (Non-Medical) and TGT (Medical) and accordingly 15% quota is allotted to all the three streams in accordance with their qualification. There is no separate quota prescribed for filling up the posts of TGT (Arts), TGT (Non-Medical) and TGT (Medical) in the Recruitment and Promotion Rules. In the absence of any specific provisions in the rules, quota as stated in the reply cannot be brought in the rules. However, the fact of the matter is that the cadre strength of TGTs is 14224. The Court can take judicial notice of the fact that there are large number of JBTs from Arts stream vis-à-vis JBTs from different two streams of (Medical) and (Non-Medical). There is sufficient material placed on record by the petitioners that though they belong to 1999 JBTs batch, but the persons, who were juniors to them appointed in the years 2006 have been promoted as TGTs (Medical) or TGTs (Non-Medical). The seniority list of JBTs is combined. The persons, who are promoted by way of this accelerated promotion, would become senior to the petitioners in TGT cadre on the strength of this accelerated promotion. They will also be considered for further promotion to the post of PGT. This Court had issued the following directions to the respondent-State on 14.8.2012: “The post of Trained Graduate Teacher is to be filled up 75% by direct recruitment and 25% by way of promotion from amongst the JBTs. and C & V teachers possessing the essential qualifications as per the Recruitment and Promotion Rules. The quota of promotion is further divided as 15% for JBTs. And 10% for C & V teachers in terms of letter No. Shiksha-II-Ka(3)01/92, dated 20.11.1993. The post of T.G.T. is in feeder category for promotion to the post of Post Graduate Teacher. Petitioner belongs to Arts stream. According to the petitioners, the respondent-State has been making promotions from the feeder category of J.B.Ts. subject-wise. 2. It is not in dispute that the teachers belonging to J.B.T. in Arts stream are more. There is a common seniority list of J.B.Ts. Petitioner belongs to Arts stream. According to the petitioners, the respondent-State has been making promotions from the feeder category of J.B.Ts. subject-wise. 2. It is not in dispute that the teachers belonging to J.B.T. in Arts stream are more. There is a common seniority list of J.B.Ts. However, when a post of T.G.T. (Science) is filled up by way of promotion from the candidate belonging to J.B.T. with Science subject, he may steal march over the candidate belonging to Arts stream, even though he may ranks lower in the seniority list. The candidate thus promoted also gets advantage for further promotion as a Post Graduate Teacher. Since the category belonging to Arts group is larger and there may not be vacancies available in T.G.T. Arts, their promotion is delayed. The same applies to Medical/Non-medical and Arts streams. The respondent-State should devise a method, whereby the candidate ranking lower in the seniority list should not steal march over the persons who are senior to him, only on the basis of subjects, i.e., Medical or Non-medical. The one method to do justice amongst three categories, i.e., Arts, Medical and Non-medical, is that the principle of “catching up” is followed by restoring the seniority to junior person when he is also promoted to the higher post. The other method would be to fill up the post of T.G.T. from the feeder category of J.B.Ts. in such a manner that no junior is given undue benefit by jumping the queue. Consequently, the respondent-State is directed to file a supplementary affidavit clarifying therein how the equities can be balanced amongst three categories, i.e. Arts, Medical and Non-medical by the next date of hearing. List on.” 7. Thereafter, supplementary affidavit was filed on 14.9.2012. Petitioners have also filed response to the supplementary affidavit. According to the affidavit filed on 14.9.2012, so far as the posts of TGTs are concerned, there are three streams, i.e. TGT (Arts), TGT (Non-Medical) and TGT (Medical) and there is a separate sanctioned strength of each stream and accordingly 15% quota is allotted to all the three streams in accordance with their qualification and separate panel is prepared for promotion. This stand of the respondent-State is contrary to the Recruitment and Promotion Rules. There is no separate sanctioned strength for TGT (Arts), TGT (Non-Medical) and TGT (Medical). This stand of the respondent-State is contrary to the Recruitment and Promotion Rules. There is no separate sanctioned strength for TGT (Arts), TGT (Non-Medical) and TGT (Medical). The posts have only been categorized as TGT (Arts), TGT (Non-Medical) and TGT (Medical) in the new Recruitment and Promotion Rules notified in the year 1999. Respondent-State, as noticed above, has admitted that it is nowhere clarified whether 15% promotional quota to TGT is based on requirement of subject concerned on sanctioned strength of each stream, i.e. TGT (Arts), TGT (Non-Medical) and TGT (Medical). According to the petitioners, 14224 posts are available, 15% works out to be 2106 and thereafter the respondent-State has divided the same as follows: TGT (Arts) 1083 TGT (Medical) 352 TGT (Non-Medical 683 50% posts would go to the TGT (Arts) and the remaining 50% would go to the TGT (Medical) and TGT (Non-Medical). This formula is not supported by the Rules. Since there are fewer number of JBTs with B.Sc. (Medical) and (Non-Medical), they have better chances for promotion to the post of TGT (Medical) and TGT (Non-Medical). Rather, their share is dis-proportionate. The Court had impressed upon the respondent-State to evolve a formula to balance the equities. However, the same was not accepted by the respondent-State and the State has justified the manner in which they have filled up the posts of JBTs in various streams. 8. It is duly established that JBTs with B.Sc. (Medical) and (Non-Medical) have distinct weightage and advantage to be considered for accelerated promotion to the post of TGT (Medical) and TGT (Non-Medical). In other words, they get accelerated promotion for the post of TGT (Medical) and TGT (Non-Medical) though they are junior in the seniority list of JBTs. They steal march over the candidates belonging to the JBTs with B.A. B.Ed. qualification. The seniority list of JBTs is maintained on the basis of date of appointment/merit. The Court has already noticed that JBTs with B.Sc. B.Ed. qualifications were promoted to the post of TGT (Medical) and TGT (Non-Medical) though belonging to 2006 batch, but the petitioners who were recruited in the year 1999 possessing the qualification of B.A. B.Ed. have not been promoted. The post of TGT is non-selection post. The Court has already noticed that JBTs with B.Sc. B.Ed. qualifications were promoted to the post of TGT (Medical) and TGT (Non-Medical) though belonging to 2006 batch, but the petitioners who were recruited in the year 1999 possessing the qualification of B.A. B.Ed. have not been promoted. The post of TGT is non-selection post. Respondent-State ought to have provided for balancing all rights to protect the rights of each category for promotion to the post of TGT in various streams and also to protect their respective seniorities. The most accepted principle to balance the equities and rights in these eventualities is “catch up” principle. In this principle even if a candidate due to weightage given to him is promoted, the junior will not rank senior to the person in the higher category if the senior is also promoted to the higher post later on. In other words, if the candidate possessing qualification of B.Sc. (Medical) or (Non-Medical) is promoted before the B.A. (Arts) though junior, he would rank junior to the candidate belonging to B.A. (Arts), if promoted later on as TGT (Arts) from feeder category. This principle is duly recognized in service jurisprudence. If this formula is adopted by the respondent-State, there would be balance of rights and equities and the juniors though might have been promoted due to exigency of service before other candidates belonging to other streams would not get undue advantage and the person, who is senior if promoted to the higher post of TGT will rank senior to the junior person promoted before him. In other words, the junior person though promoted will not be given consequential seniority. However, the Court is of the considered view that since this principle of “catch up” would apply upto category one, i.e. JBT to TGT and not to TGT to PGT. Hypothetically, a person though junior in the seniority list of JBTs may be promoted to the post of TGT and in the mean time a person senior to him may not be promoted to TGT (Arts) and if the junior is promoted to the higher post of PGT, his seniority in the TGT/PGT shall not to be affected. 9. Hypothetically, a person though junior in the seniority list of JBTs may be promoted to the post of TGT and in the mean time a person senior to him may not be promoted to TGT (Arts) and if the junior is promoted to the higher post of PGT, his seniority in the TGT/PGT shall not to be affected. 9. It will also be apt at this stage to take note that the principle of “catch up” will apply even in those cases where the JBT (Arts) being the junior is promoted to the post of TGT (Arts) before the senior person in TGT (Medical) and TGT (Non-Medical) streams in case, large scale posts of TGTs (Arts) are to be filled up by promotion from JBTs with B.A. B.Ed. qualification and the posts of TGTs (Medical) and TGTs (Non-Medical) are not filled even though they are senior in the seniority list of JBTs. The candidates belonging to all the three streams in the JBTs cadre constitute a homogenous class and one group cannot be given extra weightage which would be violative of Article 14 of the Constitution of India. By invoking principle of “catch up”, inter se seniority of the JBTs cadre will be protected in the eventuality of junior JBT is promoted to the post of TGT. 10. The principle of “catch up” for the first time has been invoked by their Lordships of the Hon’ble Supreme Court in Union of India and others versus Virpal Singh Chauhan and others, (1995) 6 SCC 684 as under: “29. The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively (vide Para 11). It has further been held in the said decision that the "percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength (and that) the concept of vacancy has no relevance in operating the percentage of reservation." (As a matter of fact, it is stated that this batch of cases was also posted for hearing before the Constitution Bench along with R. K. Sabharwal (1995 AIR SCW 1371) batch of cases but these cases were delinked on the ground that they raise certain other issues which did not arise in R. K. Sabharwal). Be that as it may, as a result of the decision in R. K. Sabharwal and the views/findings recorded by us hereinabove, the following position emerges: (i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para-5 of R. K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own mrit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. (ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect of vacancies. (iii) So far as Railway Guards in Railway services are concerned that is the only category we are concerned herewith - the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade 'C' at any given point of time provided that at that given point of time, both the general candidates and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction). In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon his seniority over the general candidates even though the general candidate is promoted later to that category.” 11. The Constitution Bench had the occasion to consider this principle of “catch up” in Ajit Singh and others (II) versus State of Punjab and others, (1999) 7 SCC 209 as under: “78. The Constitution Bench had the occasion to consider this principle of “catch up” in Ajit Singh and others (II) versus State of Punjab and others, (1999) 7 SCC 209 as under: “78. During the discussion under this "catch-up" point - for purposes of convenience, - we take the example of the cadres in Ajit Singh i.e. there is roster point promotion for reserved candidates for promotion from Level 1 to Level 2 and from Level 2 to Level 3. There is no roster for promotion from Level 3 to Level 4. Two 'catch up' rules contended for by general candidates : 79. Now, as stated earlier, the counsel for the general candidates argued for acceptance of two catch-up rules. Extreme 'catch-up' rule: 80. So far as the extreme contention of the general candidates that at Level 3, the roster candidate must wait at Level 3 - before being promoted to Level 4 - till the last senior general candidate at Level 1 reached Level 3, - we reject the same in as much as that will not amount to a reasonable balancing of the rights of the candidates in the two groups. Nor do we accept that posts must be kept vacant and no promotions of the roster candidates be made.” 12. The Constitution Bench had the occasion to consider the principle of “catch up” in M. Nagaraj and others versus Union of India and others, (2006) 8 SCC 212 after the insertion of Article 16 (4-A) in the Constitution of India as under: “69. One of the contentions advanced on behalf of the petitioners is that the impugned amendments, particularly, the Constitution (Seventy-Seventh Amendment) and (Eight-Fifth Amendment) Acts, obliterate all constitutional limitations on the amending power of the Parliament. That the width of these impugned amendments is so wide that it violates the basic structure of equality enshrined in the Constitution. 70. The key issue which arises for determination is whether the above "catch-up" rule and the concept of "consequential seniority" are constitutional requirements of Article 16 and of equality, so as to be beyond the constitutional amendatory process. In other words, whether obliteration of the "catch-up" rule or insertion of the concept of "consequential seniority code", would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16. 71. In other words, whether obliteration of the "catch-up" rule or insertion of the concept of "consequential seniority code", would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16. 71. The concept of "catch-up" rule appears for the first time in the case of Virpal Singh Chauhan1 . In the category of Guards in the Railways, there were four categories, namely, Grade 'C', Grade 'B', Grade 'A' and Grade 'A' Special. The initial recruitment was made to Gr. 'C'. Promotion from one grade to another was by seniority-cum-suitability. The rule of reservation was applied not only at the initial stage of appointment to Grade 'C' but at every stage of promotion. The percentage reserved for SC was 15% and for ST, it was 7.5%. To give effect to the rule of reservation, a forty-point roster was prepared in which certain points were reserved for SCs and STs respectively. Subsequently, a hundred-point roster was prepared reflecting the same percentages. In 1986, general candidates and members of SCs/STs came within Grade 'A' in Northern-Railway. On 1.8.1986, the Chief Controller promoted certain general candidates on ad hoc basis to Grade 'A' Special. Within three months, they were reverted and SCs and STs were promoted. This action was challenged by general candidates as arbitrary and unconstitutional before the tribunal. The general candidates asked for three reliefs, namely, (a) to restrain the Railways from filling-up the posts in higher grades in the category of Guards by applying the rule of reservation; (b) to restrain the Railway from acting upon the seniority list prepared by them; and (c) to declare that the general candidates were alone entitled to be promoted and confirmed in Grade 'A' Special on the strength of their seniority earlier to the reserved category employees. The contention of the general candidates was that once the quota prescribed for the reserved group is satisfied, the forty-point roster cannot be applied because that roster was prepared to give effect to the rule of reservation. It was contended by the general candidates that accelerated promotion may be given but the Railways cannot give consequential seniority to reserved category candidates in the promoted category. (Emphasis added). In this connection, the general category candidates relied upon the decisions of the Allahabad and Madhya Pradesh High Courts. It was contended by the general candidates that accelerated promotion may be given but the Railways cannot give consequential seniority to reserved category candidates in the promoted category. (Emphasis added). In this connection, the general category candidates relied upon the decisions of the Allahabad and Madhya Pradesh High Courts. It was contended by the general candidates that giving consequential seniority in addition to accelerated promotion constituted conferment of double benefit upon the members of the reserved category and, therefore, violated the rule of equality in Article 16(1). It was further urged that accelerated promotion-cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration would be occupied entirely by members of reserved categories. This was opposed by the reserved category candidates who submitted that for the purposes of promotion to Grade 'A' Special, the seniority list pertaining to Grade 'A' alone should be followed; that, the administration should not follow the seniority lists maintained by the administration pertaining to Grade 'C' as urged by the general candidates and since SCs and STs were senior to the general candidates in Grade 'A', the seniority in Grade 'A' alone should apply. In short, the general candidates relied upon the 'catch-up' rule, which was opposed by the members of SC/ST. They also relied upon the judgment of this Court in R.K. Sabharwal8. 72. This Court gave following reasons for upholding the decision of the tribunal. Firstly, it was held that a rule of reservation as such does not violate Article 16(4). Secondly, this Court opined, that there is no uniform method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regards to the facts and requirements of each case. It is open to the State, if so advised, to say that while the rule of reservation shall be applied, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over seniors in the feeder category and that it is open to the State to interpret the 'catch-up' rule in the service conditions governing the promotions [See: para 24]. Thirdly, this Court did not agree with the view expressed by the tribunal [in Virpal Singh Chauhan1] that a harmonious reading of clauses (1) to (4) of Article 16 should mean that a reserved category candidate promoted earlier than his senior general category candidates in the feeder grade shall necessarily be junior in the promoted category to such general category. This Court categorically ruled, vide para 27, that such catch-up principle cannot be said to be implicit in clauses (1) to (4) of Article 16 (emphasis supplied). Lastly, this Court found on facts that for 11 vacancies, 33 candidates were considered and they were all SC/ST candidates. Not a single candidate belonged to general category. It was argued on behalf of the general candidates that all top grades stood occupied exclusively by the reserved category members, which violated the rule of equality underlying Articles 16(1), 16(4) and 14. This Court opined that the above situation arose on account of faulty implementation of the rule of reservation, as the Railways did not observe the principle that reservation must be in relation to 'posts' and not 'vacancies' and also for applying the roster even after the attainment of the requisite percentage reserved for SCs/STs. In other words, this Court based its decision only on the faulty implementation of the rule by the Railways which the Court ordered to be rectified. 73. The point which we need to emphasize is that the Court has categorically ruled in Virpal Singh Chauhan1 that the 'catch-up' rule is not implicit in clauses (1) to (4) of Article 16. Hence, the said rule cannot bind the amending power of the Parliament. It is not beyond the amending power of the Parliament. 74. In Ajit Singh (I)2, the controversy which arose for determination was _ whether after the members of SCs/STs for whom specific percentage of posts stood reserved having been promoted against those posts, was it open to the administration to grant consequential seniority against general category posts in the higher grade. The appellant took a clear stand that he had no objection if members of SC/ST get accelerated promotions. The appellant objected only to the grant of consequential seniority. Relying on the circulars issued by the administration dated 19.7.1969 and 8.9.1969, the High Court held that the members of SCs/STs can be promoted against general category posts on basis of seniority. The appellant took a clear stand that he had no objection if members of SC/ST get accelerated promotions. The appellant objected only to the grant of consequential seniority. Relying on the circulars issued by the administration dated 19.7.1969 and 8.9.1969, the High Court held that the members of SCs/STs can be promoted against general category posts on basis of seniority. This was challenged in appeal before this Court. The High Court ruling was set aside by this Court on the ground that if the 'catch-up' rule is not applied then the equality principle embodied in Article 16(1) would stand violated. This Court observed that the 'catch-up' rule was a process adopted while making appointments through direct recruitment or promotion because merit cannot be ignored. This Court held that for attracting meritorious candidate a balance has to be struck while making provisions for reservation. It was held that the promotion is an incident of service. It was observed that seniority is one of the important factors in making promotion. It was held that right to equality is to be preserved by preventing reverse discrimination. Further, it was held that the equality principle requires exclusion of extra-weightage of roster-point promotion to a reserved category candidate (emphasis supplied). This Court opined that without 'catch-up' rule giving weightage to earlier promotion secured by roster-point promotee would result in reverse discrimination and would violate equality under Articles 14, 15 and 16. Accordingly, this Court took the view that the seniority between the reserved category candidates and general candidates in the promoted category shall be governed by their panel position. Therefore, this Court set aside the factor of extra-weightage of earlier promotion to a reserved category candidate as violative of Articles 14 and 16(1) of the Constitution. 75. Therefore, in Virpal Singh Chauhan1, this Court has said that the 'catch-up' rule insisted upon by the Railways though not implicit in Articles 16(1) and 16(4), is constitutionally valid as the said practice/process was made to maintain efficiency. On the other hand, in Ajit Singh (I)2, this Court has held that the equality principle excludes the extraweightage given by the Government to roster-point promotees as such weightage is against merit and efficiency of the administration and that the Punjab Government had erred in not taking into account the said merit and efficiency factors. 76. On the other hand, in Ajit Singh (I)2, this Court has held that the equality principle excludes the extraweightage given by the Government to roster-point promotees as such weightage is against merit and efficiency of the administration and that the Punjab Government had erred in not taking into account the said merit and efficiency factors. 76. In the case of Ajit Singh (II)3, three interlocutory applications were filed by State of Punjab for clarification of the judgment of this Court in Ajit Singh (I)2. The limited question was -whether there was any conflict between the judgments of this Court in Virpal Singh Chauhan1 and Ajit Singh (I)2 on one hand and vis-`-vis the judgment of this Court in Jagdish Lal and others v. State of Haryana and others . The former cases were decided in favour of general candidates whereas latter was a decision against the general candidates. Briefly, the facts for moving the interlocutory applications were as follows. The Indian Railways following the law laid down in Virpal Singh Chauhan1 issued a circular on 28.2.1997 to the effect that the reserved candidates promoted on roster-points could not claim seniority over the senior general candidates promoted later on. The State of Punjab after following Ajit Singh (I)2 revised their seniority list and made further promotions of the senior general candidates following the 'catch-up' rule. Therefore, both the judgments were against the reserved candidates. However, in the later judgment of this Court in the case of Jagdish Lal20, another three-Judge bench took the view that under the general rule of service jurisprudence relating to seniority, the date of continuous officiation has to be taken into account and if so, the roster-point promotees were entitled to the benefit of continuous officiation. In Jagdish Lal20, the bench observed that the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights of the reserved candidates and, therefore, the reserved candidates were entitled to the benefit of continuous officiation. 77. Accordingly, in Ajit Singh (II)3, three points arose for consideration: (i) Can the roster point promotees count their seniority in the promoted category from the date of their continuous officiation vis-`-vis general candidates, who were senior to them in the lower category and who were later promoted to the same level? 77. Accordingly, in Ajit Singh (II)3, three points arose for consideration: (i) Can the roster point promotees count their seniority in the promoted category from the date of their continuous officiation vis-`-vis general candidates, who were senior to them in the lower category and who were later promoted to the same level? (ii) Have Virpal1 and Ajit Singh (I)2 have been correctly decided and has Jagdish Lal20 been correctly decided? (iii) Whether the catch-up principles are tenable? 78. At the outset, this Court stated that it was not concerned with the validity of constitutional amendments and, therefore, it proceeded on the assumption that Article 16(4A) is valid and is not unconstitutional. Basically, the question decided was whether the 'catch-up' principle was tenable in the context of Article 16(4). It was held that the primary purpose of Article 16(4) and Article 16(4A) is to give due representation to certain classes in certain posts keeping in mind Articles 14, 16(1) and 335; that, Articles 14 and 16(1) have prescribed permissive limits to affirmative action by way of reservation under Articles 16(4) and 16(4A) of the Constitution; that, Article 335 is incorporated so that efficiency of administration is not jeopardized and that Articles 14 and 16(1) are closely connected as they deal with individual rights of the persons. They give a positive command to the State that there shall be equality of opportunity of all citizens in public employment. It was further held that Article 16(1) flows from Article 14. It was held that the word 'employment' in Article 16(1) is wide enough to include promotions to posts at the stage of initial level of recruitment. It was observed that Article 16(1) provides to every employee otherwise eligible for promotion fundamental right to be considered for promotion. It was held that equal opportunity means the right to be considered for promotion. The right to be considered for promotion was not a statutory right. It was held that Articles 16(4) and 16(4A) did not confer any fundamental right to reservation. That they are only enabling provisions. Accordingly, in Ajit Singh (II)3, the judgment of this Court in Jagdish Lal20 case was overruled. The right to be considered for promotion was not a statutory right. It was held that Articles 16(4) and 16(4A) did not confer any fundamental right to reservation. That they are only enabling provisions. Accordingly, in Ajit Singh (II)3, the judgment of this Court in Jagdish Lal20 case was overruled. However, in the context of balancing of fundamental rights under Article 16(1) and the rights of reserved candidate under Articles 16(4) and 16(4A), this Court opined that Article 16(1) deals with a fundamental right whereas Articles 16(4) and 16(4A) are only enabling provisions and, therefore, the interests of the reserved classes must be balanced against the interests of other segments of society. As a remedial measure, the Court held that in matters relating to affirmative action by the State, the rights under Articles 14 and 16 are required to be protected and a reasonable balance should be struck so that the affirmative action by the State does not lead to reverse discrimination. 79. Reading the above judgments, we are of the view that the concept of 'catch-up' rule and 'consequential seniority' are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of 'consequential seniority' the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that 'equality code' under Article 14, 15 and 16 is violated by deletion of the 'catch-up' rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the 'catch-up' rule nor the concept of 'consequential seniority' are implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan1.” 13. Mr. Vikas Rathore, learned Deputy Advocate General has also argued that it will be difficult to re-do the seniority in case the “catch up” principle is followed. It is made clear that the seniority list is not to be prepared afresh but only amendments are required to be carried out as and when contingency arises. 14. Mr. Vikas Rathore, learned Deputy Advocate General has also argued that it will be difficult to re-do the seniority in case the “catch up” principle is followed. It is made clear that the seniority list is not to be prepared afresh but only amendments are required to be carried out as and when contingency arises. 14. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. In order to balance the equities/rights, the respondent-State is directed to observe the principle of “catch up” for the purpose of maintaining seniority in various streams of TGT (Arts), TGT (Non-Medical) and TGT (Medical) for the posts to be filled up by way of promotion from 15% quota. Respondent-State is further directed to re-do the seniority list, in view of the observations and discussions made hereinabove, and also by adopting “catch up” principle, within a period of three months from today. Pending application(s), if any, also stands disposed of. No costs.