LAWS(SC)-1995-2-122

R K SABHARWAL Vs. STATE OF PUNJAB

Decided On February 10, 1995
R.K.SABHARWAL Appellant
V/S
STATE OF PUNJAB Respondents

JUDGEMENT

(1.) ORDER :( The petitioners and respondents 4, 5 and 6 are members of the Punjab Service of Engineers (Class I) (the Service) in the Irrigation Department of the State of Punjab. The respondents are members of the Scheduled Castes whereas the petitioners belong to the general category. The conditions of service of the members of the Service are governed by the Rules called the Punjab Service of Engineers Class I P. W. D.(I. B.) Rules, 1964 (the Rules). The Punjab Government by the instructions dated May 4, 1974 provided reservations for the Scheduled Castes and Backward Classes in promotions to and within Class I and II services under the State Government. It was laid down under the said instructions that 16 percent of the posts to be filled by promotion were to be reserved for members of the Scheduled Castes and Backward Classes (14 percent for the Scheduled Caste and 2 per cent for the Backward Classes) subject to the conditions that the persons to be considered must possess the minimum necesary qualifications and they should have satisfactory record of service . the instructions further provided as under :

(2.) On the above facts the petitioners have challenged the reservation policy on several grounds but Mr Harish Salve learned counsel for the petitioners, has confined the arguments to the following two points.

(3.) Adverting to the first point Mr. Harish Salve the Mr. Rajiv Dhawan, learned counsel representing the petitioners, have contended that the total number of promotes/appointees belonging to the reserve categories in a cadre are to be counted to work-out the prescribed percentage of reservation. According to the learned counsel the reserve categories can take advantage of the reservation made in their favour till their representation in the Service - including those appointed against general category posts - reaches the prescribed percentage. For working out the percentage the promotees /appointees belonging to reserve categories in the Service, whether on the reserve posts or general category posts, are to be counted. Support is sought from the judgment of the Punjab and Haryana High Court in Joginder Singh Sethi v. Punjab Government, (1982) 2 Serv LR 307 : (1983 Lab IC 730). In the said case 22% reservation was provided for the members of Scheduled Castes/ Tribes and Backward Classes. In the cadre strength of 202 posts the Scheduled Castes candidates were entitled to 42 posts. There were already 47 members of the said category in the cadre but out of them 10 were promoted on the basis of seniority-cum-merit against the general category posts. There being only 37 persons who had been promoted against the reserved posts 4 more Scheduled Castes were sought to be promoted against the reserve vacancies. The High Court quashed the promotion on the ground that the cadre was already having more than 22% persons from the reserve categories. We are of the view that the High Court in Joginder Singh Sethi's case fell into a patent error. The said case was subsequently considered by a Full Bench of Punjab and Haryana High Court in Jaswant Singh v. Secretary to Government of Punjab, Education Department, (1989) 4 Serv LR 257 : (1990 Lab IC 559). The Full Bench did not agree with the ratio in Joginder Singh Sethi's case and reversed the same.