Yatindra Singh, J.
1. Should there be promotional reservation on non-selection posts (the posts to be filled on the basis of seniority subject to rejection of unfit)? Can there be reservation in a cadre consisting of three posts? These are some of the questions involved in this writ petition.
FACTS
2. U. P. Fire (Gazetted Officer) Service (the Service) is a State service comprising of Group 'A' and 'B' posts. It is governed by U. P. Fire (Gazetted Officers) Service Rules, 1984 (the Rules). Rule 4, Part II provides cadre and Rule 4, Part III provides for recruitment. Under Rule 4, Part III (iii), there are posts of Deputy Director (Technical) and Commandant Fire Service Training Centre. These posts are to be filled by promotion from permanent Chief Fire Officers. Rule 17 provides procedure for promotion to the post of Deputy Director Technical and Commandant Training Centre. It is non-selection post and the promotion is to be made through a selection committee on the basis of seniority subject to rejection of unfit. Rule 5 provides for reservation for Scheduled Caste and Scheduled Tribe (SC/ST) in the service. It states that reservation would be in accordance with the orders of the Government in force at the time of recruitment.
3. Petitioner and respondent No. 4 (the contesting respondent) were permanent Chief Fire Officers. The petitioner' was senior than the contesting respondent. The Appendix to the Rules provides the number of posts. It states that there is one post of Deputy Director (Technical) and one post of Commandant Fire Services Training. It is admitted case that subsequently one more temporary post of Deputy Director (Technical) has been sanctioned i.e., there are in all three posts. One post is occupied by general candidate. Two of the remaining posts fell vacant. In one post the contesting respondent belonging to SC category was promoted and over the second post one Mahesh Narain Trivedi (general category) was promoted by the order dated 16.12.1997. The petitioner has filed the present writ petition challenging the promotion of the contesting respondent. There is no dispute regarding promotion of the general category candidate.
POINTS FOR DETERMINATION
4. We have heard Sri Ashok Khare assisted by Sri A.K. Singh counsel for the petitioner and Ms. Subhash Rathi, standing counsel for the respondents. Following points arise for determination :
(i) Whether there can be promotional reservation over a non-selection post?
(ii) Whether there is adequate representation of SC/ST in the service warranting no reservation?
(iii) Whether there can be any reservation in cadre consisting of three persons?
1st POINT : PROMOTIONAL RESERVATION CAN BE MADE IN NON-SELECTION POST
5. Counsel for the petitioner submitted that promotion may be over selection posts but there is no justification to provide reservation over non-selection posts. They have also brought to our notice following observations of a Division Bench decision of our court in Inder Shanker v. State of U. P., 1995 (1) UPLBEC 453 (the Inder Shanker case) :
'When promotibn is to be made under the rules on the basis of seniority (non-selection post), there may not be any justification for making reservation. Reservation in such cases results in promotion of those, who are junior. Such a promotion is, therefore, contrary to the rules, which provide for promotion on the basis of seniority. But the Government orders, making provisions for reservation in promotion even in those cases where promotion is to be made on the basis of seniority subject to rejection of unfit, were issued in 1974 and 1976 and have continued in force since then. We do not find any justification now to set aside those orders when they have remained in operation for about 20 years and their life span is only five years from the date of the judgment of the Supreme Court in Indra Sawhney's case, AIR 1993 SC 477, i.e., upto 15.11.1997.'
These observations support the submission of the petitioner.
6. Article 16(4) permits reservation in appointments or posts. It was often debated whether Article 16(4) encompasses reservation in promotion or not. The Madras High Court held that Article 16(4) does not permit reservation in matter of promotion and is confined to direct appointments only. This decision was reversed by the Supreme Court (by 3 to 2) in General Manager Southern Railway v. Rangachari, AIR 1962 SC 36 (the Rangachari case). The Supreme Court held that Article 16(4) takes into account all matters in relation to employment and reservation could be made in case of promotion provided other conditions mentioned in that article were satisfied. This was approved by a later decision of the Supreme Court in State of Punjab v. Hira Lal, AIR 1971 SC 1777. These decisions were regarding promotional reservation over selection posts.
7. The question of making promotional reservation over non-selection posts was involved in Akhil Bhartiya Shoshit Karmchari Sangh v. Union of India, AIR 1981 SC 298 (the Soshit Karmchari case). The Court held :
'Far more serious is the criticism of Annexure-K on the basis of which reservations were introduced even to promotion posts filled by the 'seniority-cum-suitabllity' rule. Some other relaxations and concessions also are granted under it to SC and ST candidates. But the maximum mayhem inflicted by Annexure-K is in the extension of the operation of promotional reservation to non-selection posts. It was urged that Rangachari did not cover non-selection post and, therefore, could not be an authority to sustain its validity. There is no force in this submission.
The sting of the argument against reservation is that it promotes inefficiency in administration by choosing substandard candidates in preference to those with better mettle. Competitive skill is more relevant in higher posts, especially those where selection is made by competitive examinations. Lesser classes of posts, where promotion is secured mechanically by virtue of seniority except where the candidate is unfit, do not require a high degree of skill as in the case of selection posts. It is obvious that as between selection and non-selection posts, the role of merit is functionally more relevant in the former than in the latter. And if in Rangachari reservation has been held valid in the case of selection post, such reservation in non-selection posts is a fortiori case.'
8. These cases regarding promotional reservation were followed in a later decision in Comptroller and Auditor General v. K.S. Jagarnath, 1986 (2) SCR 17 : A!R 1987 SC 537, but were overruled in Indira Sawhney v. Union of India, AIR 1993 SC 477 (the Indira Sawhney case). It was held (by 8-0 one Judge did not express his opinion on this question) that there cannot be promotional reservation. This proposition was applicable over selection as well as non-selection posts.
9. Our Court in the Inder Shanker case had made observations in the light of the Indra Sawhney case. However, by the Constitutional (77th Amendment) Act, 1995, the Parliament amended the Constitution by introducing sub-article (4A) to Article 16. This constitutional amendment received the assent of President on June 19, 1995 and was published in Gazette of India Extra Ordinary Part 2 on 19th June, 1995. (It would be relevant to state here that no arguments were raised before us challenging the validity of the Constitutional (77th Amendment) Act, 1995.) This amendment permits the State to make provision for reservation in matter of promotion in favour of scheduled caste and scheduled tribes in case they are not adequately represented in the service. This amendment takes away the basis of decision given in the Indira Sawhney case. To our mind, it restores the position of law as was prevalent prior to the Indira Sawhney case. (There was some force in the submission that reservation over non-selection promotional posts cannot be made as there is already reservation at the time of direct recruitment and reserved category would in any case be represented in due course. We would have considered it in detail but for the Supreme Court decision in the Soshit Karmchari case where such reservation was upheld.) The observation of the Division Bench of our Court were obiter in the sense that reservation in fact was not struck down and in any case observations were made under different constitutional provisions. In view of the constitutional amendment and the earlier decisions of the Supreme Court there is no justification now to strike down reservation in promotion over selection or non-selection posts.
2nd POINT : NO SUFFICIENT DATA
10. Reservation under sub-article (4) or (4A) of Article 16 can only be provided if backward class is not adequately represented. According to the counsel for the petitioner, the SC/ST are adequately represented in the service and no reservation could be provided. They have also referred to paragraph 36 of the writ petition. In this paragraph it has been stated that there is adequate representation of SC/ST in the service. It is also stated that the post of Director as well as of Additional Director are being held by scheduled caste candidates.
11. Paragraph 36 of the writ petition has been denied in paragraph 19 of the counter-affidavit. The assertion of the petitioner that post of Director and Additional Director are being held by SC/ST candidates has not been specifically denied. However, it is not clear if it is a chance or such occurrences are permanent feature. In paragraph 19 of the counter-affidavit, it has been stated that SC/ST candidates are not adequately represented in the service. It is not stated by the petitioner how many posts are there in the service ; admittedly strength has increased since its inception ; at least one post has been added, the data regarding adequacy of representation of SC/ST is insufficient. We cannot declare reservation for SC/ST to be illegal on the basis of this data.
3rd POINT : RESERVATION CAN BE MADE
12. The counsel for the petitioner submit that reservation for SC/ST is 23% (21% for SC and 2% for ST) in the State. In case reservation is applied in a cadre of three posts, then reservation at a time when one post is filled by the SC/ST candidate would be 1 out of 3 i.e., more than 23%. According to them reservation for SC/ST (23%) can be applied only if the cadre consisted of five posts as reservation then may amount to 20% less than the limit of reservation. They further submit that if roster is applied then it is possible that at some time 2 posts may be filled by reserved candidates and the reservation would become more than 50%, which is not permissible. Before we consider these submissions, let's understand limits of reservation and the reasons why single cadre post cannot be reserved.
13. Articles 14 to 18 provide right to equality. Article 15(4) permits the State for making special provisions for advancement of socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Similarly Article 16(4) of the Constitution permits reservation in appointment or post in favour of any backward class of citizen which is not adequately represented in the services. These Articles do not specifically prescribe limit of reservation but is there any implied limit or should there be any?
14. The question relating to limit of reservation was subject matter of debate. However, the Supreme Court ultimately, in the Indira Sawhney case (by the majority 8 is to 1), held that the reservation cannot be more than 50% and there has to be exceptional circumstances to justify more than 50% reservation. The Supreme Court in Post Graduate Institute of Medical Education and Research Chandigarh v. Faculty Association, 1998 (4) AWC 534 (SC) : 1998 (3) JT 223 (the P. G. Chandigarh case) reiterated the same view. The Court held that that reservation cannot be more than 50% as Articles 15(4) and 16(4) are enabling provisions and making reservation for more than 50% would infringe right of equality of other citizens. The relevant part of P.G. Chandigarh case in this regard are as follows :
'Articles 14, 15 and 16 including Articles 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes.......... [I]n Indra Sawhney's case, [it] ...... has been held by indicating that only a limited reservation not exceeding 50% is permissible.......... [T]his Court has also indicated that in the interest of the backward classes of citizens, the State cannot reserve all the appointment under the State or even a majority of them. The doctrine of equality in such a manner that the latter while surveying the case of backward classes shall not unreasonably encroach upon the field of equality.'
15. Rosters giving detail as to how this reservation should be carried out have been made in pre and post decision era of the Indira Sawhney case. They provide details as to which vacancy would be for the general category and which one would be for the reserved category. They provide practical solutions to the problem of filling up the vacancy. There was no difficulty in implementing the roster (at least at initial stages) if there were many posts but difficulties arose where cadre consisted of a single post ; in such event it has to be reconciled with other principles of non-providing more than 50% reservation. The proponents of reservation argued that single post, could be reserved and roster should be applied as and when the vacancy arose so that some time it would be given to the reserved candidate and some time to the general category candidate. According to opponents of reservation, reservation cannot be provided in the cadre of single post as this would amount to 100% reservation and it would be constitutionally illegal.
16. This question was settled by the Supreme Court in the P. G. Chandigarh case. The Court held that reservation cannot be provided on a single post cadre as it would amount to 100% reservation and will infringe equality clause. The relevant part of P. G. Chandigarh case in this regard is as follows :
'Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation ....... on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.'
17. Before we apply these reasoning to the facts of our case, it would be appropriate to consider following cases cited by the petitioner ;
(i) Union of India v. Virpal Singh Chauhan, 1996 (1) AWC 105 (SC) : (1995) 6 SCC 684 (the Virpal's case).
(ii) Bhup Singh v. State of Haryana, (1999) 1 SCC 546 (the Bhup Singh case) and
(iii) R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 (the Sabharwal case).
(iv) J.C. Malik v. Union of India, 1978 SLJ 401 (the J. C. Malik case) (DB) Allahabad High Court).
18. These cases have no application to the facts of the present case. The Virpal case was not concerned with the question involved in the present case. The Supreme Court (paragraph 19) stated the points involved in that case as follows :
'We are concerned herein not with the validity of the rule of reservation but with its nature and its effect upon the question of seniority.'
This is not a question involved here. However, it is correct that this case is subsequent to the Sabharwal case and summarises the points decided in the Sabharwal case. The Bhup Singh case has merely affirmed the Sabharwal case.
19. The Sabharwal case is a Constitution Bench decision of the Supreme Court and approves the J. C. Malik case, which is a Division Bench decision of our court. The points involved in these two cases related to :
. efficacy of roster ;
. till what time roster should be applied ; and
. what is the unit for reservation : vacancies or the cadre strength.
20. The Court in the Sabharwal case held that :
'The only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the 'running account' must come to an end thereafter.'
21. The question involved in the present case is whether in a cadre consisting of three posts reservation can be made or not. We are not concerned at present whether roster should come to end or not. Ceiling of reservation is 50%. In this case one of the three posts is being reserved ; it is less than 50% ; it is not illegal ; it cannot be struck down.
FEW OBSERVATIONS
22. We (while deciding Point No. 2) have upheld reservation in the service on the ground that data is insufficient. However, this does not mean that the State should not consider this question. Reservation may be provided only if backward classes are not adequately represented in the service. If they are adequately represented, then the State would be well advised to reconsider the question of reservation.
23. We (while deciding Point No. 3) have upheld reservation in a cadre consisting of three posts and promotion of the contesting respondent. At present only one of the three posts is being occupied by reserved category. A roster for allocation of the vacancies has been issued. It is Annexure-11 to the writ petition. According to this roster first vacancy is for reserved category and the next four vacancies are unreserved, then the sixth one is for reserved category and so on. Two vacancies had arisen after it was enforced. The first vacancy has been given to reserved category, namely, the contesting respondent and the next one has been given to a general candidate. Next three vacancies have to be allocated to the general candidates and the sixth one has to be given to the reserved candidate. It is possible that when sixth vacancy for reserved candidate is being filled the contesting respondent is still there. In that event, two out of three candidates may be of reserved category. At that juncture reservation would be more than 50% and then the observations of the Sabharwal case may come into operation. It is at this stage that the Court may intervene as was done in the B.S. Gaur v. Union of India, 2000 (4) AWC 3027 (SC) : (2001) 9 SCC 706 (the Gaur case).
24. In the Gaur case, cadre consisted of three posts one was occupied by scheduled caste candidate, second was by a general candidate, and third one was being reserved for the scheduled caste candidate. The Central Administrative Tribunal set aside the appointment of the second scheduled caste candidate and this was upheld by the Supreme Court stating :
'There is no dispute that there are only three posts and one of the three posts is occupied by a general candidate and the second by a member of the scheduled caste and, therefore, the third post could not be allowed to go to a reserved candidate.'
The respondents would be well advised to avoid such situation.
CONCLUSION
25. Our conclusions are as follows :
(a) Reservation in promotion in non-selection as well as selection posts is valid after the enforcement of 77th Constitutional Amendment Act.
(b) There is insufficient data to record finding regarding adequacy of representation of SC/ST in the service. Reservation in their favour cannot be set aside.
(c) There is no illegality in providing reservation in cadre consisting of three posts because reservation does not exceed 50%.
In view of our conclusions, thewrit petition is dismissed with theobservations made under the heading'FEW OBSERVATIONS'.