Judgment:
M. Rama Jois, C.J.
1. The question arises for consideration in this Letters Patent Appeal is : whether respondent No. 3, who belongs to a caste declared as Scheduled Caste in the State of Himachal Pradesh and who has joined service of State of Haryana sometimes in the year 1970, is entitled to the benefit of reservation for promotion against a vacancy reserved for promotion to persons belonging to the Sheduled Caste ?
2. The brief facts of the case are these : --
Respondent No. 3 hails from the State of Himachal Pradesh and belongs to a caste which is declared as Scheduled Caste in the State by notification issued under Article 341 of the Constitution of India. He was appointed as an Assistant against a general category post in the State of Haryana in the year 1975.
The appellant belongs to a caste which is declared as Scheduled Caste in the State of Haryana and was appointed a Clerk against a reserved vacancy. He was promoted an Assistant against a vacancy reserved for Scheduled Caste.
During December 1991, one vacancy of Deputy Superintendent reserved for Scheduled Castes became available. Respondent No. 3 claimed that post on the ground that he belongs to Scheduled Caste. His claim was rejected and the appellant was promoted. The writ petition was filed by respondent No. 3 questioning the legality of promotion of the appellant on the ground that as both the appellant and respondent No. 3 belongs to Scheduled Caste and respondent No. 3 was Senior, he was entitled to promotion against the vacancy meant for Scheduled Caste.
3. In support of his claim that he was entitled to promotion against the vacancy reserved for Scheduled Caste, he relied on letter dated 18-12-1973 Annexure P-5, addressed by the Commissioner and Secretary, Haryana, Department of Social Welfare, to all the Heads of Department of Haryana. The relevant portion of the letter reads thus :--
'I have been instructed to draw your kind attention to Govt.'s letter No. 6076-1-72/15594-693 dated 15th September, 1972 and advice you that this matter has been enquired into and it has been decided that the employees of Scheduled Caste/Scheduled Tribes, who are in the service of the Haryana Government, they should also be cpnsidered as bonafide residents of Haryana and they alongwith their children should be given benefit of reservation in Govt. service.'
The language of the above letter is quite clear. According to the above letter, a person who belongs to Scheduled Caste or Scheduled Tribes of another State and joined the service of Haryana Government was also to be considered as bonafide resident of Haryana for the purpose of reservation in the service of the State of Haryana As against this, the learned counsel for the appellant relies on a subsequent letter dated 15-7-1985 issued by the Chief Secretary to Government, Haryana, copy of which is annexed as Annexure R-3/3. The relevant portion of which reads as under :--
'Subject :--Reservation benefits extension of the same, to Scheduled Castes, Backward Classes, Ex-servicemen and the physically handicapped persons only who are domiciles of the Haryana State.
Sir,
I am directed to refer to circular letter No. 6880-SW-I-71/1051-52, dated 20.1.1972. issued by the Commissioner and Secretary to Government Haryana, Social Welfare Department (copy enclosed) vide which the reservation benefit was only given to those Scheduled Castes and Backward Classes member who were the domiciles of the Haryana State and not to those belonging to other States.
2. The question regarding giving the benefit of reservation to those Ex service-men and physically handicapped persons who are domiciles of Haryana State was under consideration of the Government. After careful considering the matter, it has been decided by Government to grant the benefit of reservation to only those Ex-servicemen and physically handicapped persons, who are domiciles of the Haryana State and not to others. The benefit of reservation to scheduled Castes and Backward Classes persons is already available only to those who are domiciles of Haryana State under instructions referred to above.
3. It is requested that these instructions may kindly be brought to the notice of all concerned and the receipt of the same may kindly be acknowledged.'
Relying on a clarification, made by the Financial Commissioner and Secretary to Government of Haryana vide annexure R-3/3-A, also it was contended by the counsel for the appellant before the learned Single Judge that respondent No. 3 cannot claim benefit of reservation in promotion for himself on the basis of certificate issued by the other State for a caste which has been declared as reserved by the State of Haryana. The relevant portion thereof reads thus :--
'2. It is clarified that if a person belonging to the other State joins service as general category candidate in Haryana and later on claims the benefit of reservation in promotion on the basis of certificate issued by the other States for a caste which has been declared as reserved by the State of Haryana, such a person cannot claim benefit of reservation for himself on the basis of that certificate However, his children/dependents can claim the benefit of reservation being dependents of the Haryana Government employee.
3. L. R. has also been c insulted.'
He also relied on a letter from the Chief Secretary to Government Haryana, copy of which is annexed as P-8. The relevant portion of that letter reads thus :
'Subject:--Reservation in promotion to the employees belong to reserved category of Scheduled Castes and Backward Classes.
Reference your memo. No. 10661/EII dated 18 12.91 on above noted subject.
2. In this contention, it is stated that as per instructions issued by the Social Welfare Department vide No. 6880.SE-I-71-1051-52 dated 20.1.72 read with C. S. letter No. 22/67/81-CSIII dated 15.7.85, the benefit of reservation at the time of initial recruitment as well as in the matter of promotions is admissible to the Scheduled Castes and Backward Class candidates belonging to the Haryana State only and not to those belonging to a State other than Haryana. It is also clarified that the Scheduled Caste and Backward Class persons belonging to a Stale other than Haryana after joining Haryana Govt. service cannot be considered as bona fide residents of Haryana and hence cannot claim the benefit of reservation for himself. However, the children/dependents of such a person can be given the benefit of reservation since they become domiciles of Haryana.'
Relying on the three letters, it was contended by the learned counsel for the appellant that the third respondent could not claim the benefit of reservation for promotion on the strength of Annexure P-5. The learned Single Judge on consideration of all these documents came to the conclusion that the policy contained in communication dated 18th December, 1973, Annexure P-5, has not been expressly superseded by any of the subsequent communications on which the appellant relied. Consequently, the learned single Judge allowed the writ petition and set aside the promotion of the appellant with a direction to consider the claim of respondent No. 3 for promotion against a vacancy reserved for Scheduled Caste w.e.f. 13.12.1991.
4. Mr. Anand Chhibbar, learned counsel for the respondent No. 3 streneously contended that the view taken by the learned single Judge, that according to Annexure P-5 respondent No. 3 was eligible for promotion against a vacancy reserved for Scheduled Caste, was correct and does not call for any interference.
5. After giving careful consideration to the submissions made by the learned counsel for both the sides, we are of the view that is according to the instructions Annexure P-5, the employees of Scheduled Caste/Scheduled Tribes belonging to other States and are in the service of Haryanan Government, shall also be considered as bodafide residents of Haryana and they alongwith their children shall be given the benefit of reservation in Government service. Thus once they join service in Haryana Government, they would be considered as bona-fide residents of Haryana and they alongwith their children shall get benefit of reservation in Government service for all the time. When the above circular was issued, respondent 3 was already in the service of Haryana Government and as such the benefit of reservation is admissible to him in the matter of promotion. The said benefit has not been taken away by the three circulars issued later. In fact, Annexure R-3/3, on which the learned counsel relies, related to the benefit of reservation to the Ex servicemen and physically handicapped persons. The second paragraph thereof states that the benefit of reservation should be granted to only those Ex-servicemen and physically handicapped persons who are domiciles of Haryana State and not the others. The benefit of reservation to Scheduled Castes and Backward Class employees was already available to those who are domiciles of Haryana State but by virtue of instructions annexure P-5 it was extended to the employees belonging to other States and who were/are serving already in service of Haryana Government in State should also be considered as bonafide residents of Haryana, for the purpose of reservation in Govt. Service. Nothing in Annexure R-3/3 or R-3/3 effects claim of respondent No. 3 and other similarly situated persons.
6. For the reasons given above, we answer the question set out in affirmative and dismiss the appeal. No costs.