M K JANARDAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The three petitioners herein are working as Head Clerks in the Engineering Workshop Western Railway Sabarmati so far as petitioners Nos. 2 and 3 are concerned and the first petitioner is Officiating Chief Clerk in the said Engineering Workshop and his substantive post is that of Head Clerk in the said Engineering Workshop. The first respondent is the Union of India the second respondent is the General Manager Western Railway the third respondent is the Chief Bridge Engineer. Western Railway Headquarters and the fourth respondent is another Head Clerk in the Engineering Workshop at Sabarmati The fourth respondent belongs to one of the Scheduled Castes and he belongs to the category for whom reservation of posts has beAn made as reservation for Scheduled Castes under the instructions of the Railway Board. It is the case of the petitioners that in the Western Railway the Engineering Workshop at Sabarmati is treated as a separate entity for the purpose of promotion from lower cadre to higher cadre. In this Workshop there is only one post of Chief Clerk and the channel of promotion to the post of Chief Clerk is from amongst the Head Clerks. It is the case of the petitioners that promotion to the postage of Chief Clerk is on the basis of selection from amongst the Head Clerks. In September 1974 a vacancy arose in the post of Chief Clerk and on that occasion the fourth respondent was promoted to the post of Chief Clerk on an ad hoc basis on September 1 1974 because on that occasion the vacancy was treated as a reserved vacancy for Scheduled Castes. At that time the fourth respondent was working only as a Senior Clerk which is a cadre below that of Head Clerks. The respondents realised that the said vacancy could not be treated as a reserved vacancy and reverted the fourth respondent to his substantive post and promoted the first petitioner on an ad hoc basis on the basis of seniority as officiating Chief Clerk until final selection was held. The fourth respondent challenged the order of reversion by filing Special Civil Application No. 2245 of 1974 in this Court. This Special Civil Application was dismissed by our learned brother S. H. Sheth J. by his judgment and order dated July 18 1975 Against that judgment and order of the learned Single Judge the fourth respondent preferred a Letters Patent Appeal but at the time of the final hearing of the Letters Patent Appeal the fourth respondent withdrew not only the Letters Patent Appeal but also the Special Civil Application No. 2245 of 1974. By a letter dated December 20 1975 the third respondent who is the Chief Bridge Engineer Western Railway Headquarters at Bombay issued instructions to the Deputy Chief Engineer (Engineering Workshop) Sabarmati to send the names of eligible employees including the names of persons belonging to Scheduled Castes/Scheduled Tribes. In response to those instructions the Deputy Chief Engineer sent two select lists showing the names of eligible employees one according to the general seniority from amongst the Head Clerks and the other of Scheduled Castes candidates from amongst the Senior Clerks because at that point of time there was no Scheduled Caste candidate holding the post of Head Clerk. It appears from Annexure A to the petition that the fourth respondent was appointed in the grade of Head Clerks on December 16 1976 and since that time he is holding that post. At the time when the fourth respondent was so promoted he bypassed eight senior clerks all of whom were senior to him in service in the cadre of Senior Clerks as shown by the combined seniority list of Senior Clerks of the Engineering Workshop. The Headquarters Office of the Western Railway by their letter dated September 1 1976 informed the Deputy Chief Engineer Engineering Workshop Sabarmati a copy of the letter being Annexure C to the petition that the reservation roster was applicable even to a single post in a cadre and it was not exempted from the scope of reservation as it did not infringe the principles laid down by the Supreme Court judgments in M. R. Balaji v. State of Mysore A. I. R. 1963 S. C. 649 or in Devadasan v. Union of India reported in A. I. R. 1964 S. C. 179 Thereafter a letter was sent on July 11 1977 by the Headquarters Office to the Deputy Chief Engineer (Engineering Workshops Sabarmati calling upon him to send names of eligible staff from the category of Head Clerks as per the seniority from unreserved candidates and also from reserved Scheduled Castes candidates so that the exact date of selection by the Selection Committee for selecting person for the post of Chief Clerk could be carried out. It was proposed to hold the selection in the second week of August 1977 and the staff concerned was to be informed to keep themselves in readiness. In response to this letter of July 11 1977 the Deputy Chief Engineer (Engineering Workshop) Sabarmati sent six names three of them being unreserved candidates and the remaining three being reserved candidates. Those six names were sent as the names of eligible staff for being selected as Chief Clerk as per the seniority from the unreserved candidates and reserved candidates. The three petitioners in the present proceedings were all of them in the penal of unreserved candidates. The fourth respondent is at S. No. 1 in the panel of reserved candidates and the other two persons in the panel of reserved candidates are Senior Clerks.

(2.) The petitioners contend that since there is only one post of Chief Clerk in this Engineering Workshop at Sabarmati the rule or directions regarding reservation of posts cannot apply and hence the provisions of Article 16(4) of the Constitution do not apply to the present case and any appointment made in purported compliance with the reservation rule would contravene Articles 16 and 14 of the Constitution. The petitioners have prayed for the issuance of an appropriate writ direction or order under Article 226 of the Constitution declaring the rule of reservation as applicable to the single post of Chief Clerk in the Engineering Workshop at Sabarmati as ultra vires illegal and void and they have also prayed for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ direction or order under Article 226 of the Constitution against the respondents restraining them from treating the vacancy in the post of Chief Clerk in the Engineering Workshop at Sabarmati as a reserved vacancy and directing the respondents to treat the said vacancy as unreserved and to fill up the same from amongst all the suitable candidates.

(3.) In order to appreciate the contention which has been raised in this case it is necessary to refer first to Article 16 of the Constitution. As is well known this Articles provides for equality of opportunity in matters of public employment. Under clause (1) of Articles 16 there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall under clause (2) on grounds only of religion race caste sex descent place of birth residence or any of them be ineligible for or discriminated against in respect of any employment or office under the State. Clause (4) of Article 16 provides