SHEODHAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Arts.226 and 227 of the Constitution of India. Out of the 43 petitioners, petitioners Nos.1 to 39 are holding the selection grade appointments in the Ministerial cadre of the Patna High Court. The remaining petitioners, namely petitioners Nos.40 to 43 are serving as Assistants in the Patna High Court. Their prayer is to quash the order of promotion of respondents Nos.5 to 7 as contained in Annexure-5, the gradation list of the selection grade of Assistants as contained in Annexure-5 1 and the order as contained in Annexure-5 informing petitioner No. 1 that the representation dated 17-1-1978 filed by him and other Assistants has been rejected.

(2.) This case came up for hearing on 17-9-1984. Mr. Ganesh Prasad Singh, learned counsel for the petitioners argued the following three points for consideration :- (i) The High Court adopted the roster of 1971 and gave promotion to respondents Nos. 5 to 7 in the year 1978 when the roster had become obsolete in the year 1975. (ii) Posts reserved for respondents Nos. 5 to 7 in the roster have also been taken to be the position in the gradation list irrespective of the inter se seniorty in the lower cadre. (iii) Clause (4) of Art.16 of the Constitution of India does not permit reservation at different grades of service; it only prescribes reservation in the service. When learned counsel for the petitioners concluded his argument, we called upon learned counsel for the respondents to give his reply. It then transpired that the counter-affidavit filed by the respondents was most casual, formal and unhelpful. The case was accordingly, adjourned to enable the respondents to file an affidavit bringing necessary facts on record. The case was then listed on 22nd October, 1984. But on that day also it had to be adjourned because the respondents had not supplied the required information. A supplementary counter-affidavit on behalf of respondents Nos. 2 to 4 was thereafter filed annexing, inter alia, copies of entire minutes relating to the promotion of respondents Nos. 5 to 7. When the case was taken up on 3-1-1985. Mr. Ganesh Prasad Singh, learned counsel for the petitioners very fairly told us that in view of the facts brought on record by the supplementary counter-affidavit he withdrew his earlier submissions. Learned counsel, however, said that on the basis of the facts the following points need consideration :- The selection grade is not a promotion in service or in the cadre and. therefore, reservation as postulated under Cl.(4) of Art.16 of the Constitution of India is not attracted. Learned counsel alternatively urged that since promotion to selection grade was based entirely on seniority-cum-fitness, there was no element of selection and. as such, the provision of Cl.(4) of Art.16 of the Constitution of India is not attracted. The next point urged by learned counsel is that assignment in the gradation list of seniority, according to the reservation of posts in the roster, is neither within the scope of Art.16(4) of the Constitution nor according to the Rules framed by this Court. According to learned counsel, therefore, the gradation list should be declared not to indicate the seniority of petitioners Nos.1 to 39 respondents Nos.5 to 7, inter se.

(3.) In view of the argument advanced by learned counsel for the parties, it is not necessary to mention all the facts which have been brought on record by the parties. I propose to mention only such facts which are necessary for consideration of the points in issue and I must say that such facts are very few which are as follows :- All the petitioners entered into the services of this Court as Lower Division Assistants, They were duly confirmed in the said cadre and were later promoted as Upper Division Assistants. Respondents Nos. 5 to 7 also joined as Lower Division Assistants in the High Court and were confirmed in that capacity They also, in due course, were promoted to the cadre of Upper Division Assistants on different dates. According to the petitioners, respondents Nos. 5 to 7 were juniors to them both as Lower Division Assistants and Upper Division Assistants. It may be mentioned here that these respondents, namely, respondents Nos. 5 to 7 are members of the Scheduled Caste and, accordingly, they are entitled to the benefit of reservation introduced in their favour by the State Government and adopted by the High Court. With that end in view, the High Court office suggested that a roster of vacancies be drawn up so that the vacancies by promotion may be filled up according to the rotation prescribed in the roster. The roster as suggested by the office is as follows :-