JAGDISHLAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) LEAVE granted.

(2.) WE have heard learned counsel on both sides.

(3.) SHRI Rohtagi learned counsel for the appellants, contended that in all the posts/grades starting from that of Clerk to Superintendent in Class III Service and the post of Budget Officer, Assistant Registrar and Registrar in Group 'B' Class I Service by operation of ratio of Ajit Singh case, (1996 AIR SCW 1196) and Union of India v. Virpal Singh Chauhan, (1965) 6 SCC 684 : (1995 AIR SCW 4309), seniority is required to be determined keeping the seniority of the general and reserved candidates in the lower grade/cadre in tact as all the posts are of the same Service. As soon as the general candidates get promoted to the higher cadre, the inter se seniority of the general candidates and the reserved candidates is required to be redetermined on the basis of their inter se seniority in the feeder grade/cadre. That was the view taken by this Court in Veerpal Singh Chauhan case. Even though the reserved candidates were promoted earlier to the general candidates, the inter se merit between the general candidates and the reserved candidates in Group 'B' Class I Service should be redetermined. The promotion is required to be given to Class I Service on that basis. Promotion at various levels in Class II Service is also, accordingly, required to be given and the seniority determined. As soon as the general candidates get promoted, even though later to the reserved candidates, they have right to have their seniority restored. As a consequence, the general candidates are eligible to be considered for promotion in higher posts before consideration of the reserved candidates in Class I Service treating all of them as general candidates since for the fist time the inter se rights are being considered in Class-I Group 'B' Service. This interpretation given in Chauhan's case, (1995 AIR SCW 4309) and Ajit Singh's case, (1996 AIR SCW 1196), is consistent with the principle laid down in Articles 14 and 16(1) of the Constitution granting equality of opportunity to both the general as well as the reserved candidates. The absence thereof would negate the right to equality to general candidates violating Articles 14 and 16(1) of the Constitution. The mere delay in filing the writ petitions cannot be made the base to deny the relief to the general candidates. The right to equality being a constitutional mandate, as and when the right is required to be determined, the Court has to consider the facts of each case and decide it on merits. The High Court, therefore is wrong in law. Shir Prem Malhotra, learned counsel for the State, contended that whatever be the earlier legal position, after the judgment of Ajit Singh's case, the Government re-examined the matter and issued proceedings restoring the seniority of the general candidates in their respective feeder posts/cadres from which reserved candidates came to be promoted. The direction, it is contended, is consistent with and is in implementation of the law laid down by this Court. The High Court, therefore, is not right in refusing to grant the relief to the appellants. SHRI K. S. Chauhan, learned counsel for the reserved candidates, contended that under Rule 11 of the Haryana Education Department Class III Service Rules, 1974 (for short, the "1974 Rules") and Rule 11 of the Rules provide for determination of seniority of the employees in the said Service. The Service as per 1974 Rules consists of various cadres, starting from Clerks to Superintendents in the Class III Service. Under 1980 Rules, the Gazetted Cadre consist of Budget Officers, Assistant Registrar (Education) and Registrar (Education) all of which constitute Class I Service. Rule 11 of the respective Rules is a substantive rule creating right to seniority. The moment the officer is appointed to the service/cadre on putting probation, on successful completion of the probation period and on being duly declared, they cease to be the members of the feeder cadre from which they came to be promoted, As and when the vacancies arise in the posts in the respective cadres as per the roster point, the candidates, whether general or reserved, are required to be considered for promotion and duly promoted in accordance with the existing Rules. They became members of the Service in the respective cadres of Class III or Group B Class I Service. The moment they started discharging the duties of the posts and on declaration of the successful and satisfactory probation period, they became full fledged members of that Service. They also ceased to be members of the feeding cadre. Therefore, the moment the termination of probation was declared, they ceased to be members of the Service of lower feeder cadre at various levels as cadre officers. The subsequent promotions to the general candidates do not have the effect of denying the seniority secured by the reserved candidates due to their early promotion. Even if promotions to Group 'B' Class I Service are to be made without applying the rule of reservation, the reserved candidates having become senior the general candidates, are entitled to be considered for promotion as per Rules in their own merit. Accordingly, the 5th respondent came to be promoted to the post of Registrar (Education) in his own right. The appellants have no right to claim seniority over the respondents-reserved candidates. He also contended that promotion to the reserved candidates is as member of the Dalits and Tribes as a Class. Constitutional right to equality enshrined under Article 14, the genus, and Article 16(1), the species thereof, provide for protective discrimination in favour of the Dalits and Tribes. Appointment by promotion to a post or Service under the State is a constitutional right given by Article 16(1) or (4A) of the Constitution. Therefore, when the reserved candidates are promoted in accordance with the Rules, applying rule of reservation, and are promoted to posts as per the roster and are appointed to the posts reserved for reserved candidates as per the roster, no unconstitutionality results and it is not discriminatory or arbitrary, violating Article 14 of the Constitution. He also contended that the reserved candidates were promoted long prior to the general candidates in Class III and Group B Class I Service. The writ petition came to be filed after Ajit Singh's case, (1996 AIR SCW 1196). The High Court, therefore, is right in dismissing the writ petitions on the ground of delay as well.