Holding

Inter‑se seniority must be fixed on the basis of the merit list prescribed by the Rules, not on roster points, and the High Court’s practice stands.

Summary

A competitive examination for 28 subordinate judge posts in Haryana resulted in 42 qualified candidates, of whom 10 were from reserved categories. Seven reserved vacancies remained unfilled and were later de‑reserved, allowing 18 general‑category appointments. The appellant, a reserved‑category candidate, challenged the High Court’s determination that inter‑se seniority should be based on merit rather than roster points. The Supreme Court examined the relevant 1951 Rules, the Constitution’s provisions on reservation, and prior service‑law precedents. It held that the Rules expressly require seniority to follow the merit list and that Article 16(4) does not extend to fixing seniority. Consequently, the High Court’s long‑standing practice could not be disturbed and the appeal was dismissed.

Issues considered

Whether inter‑se seniority among candidates appointed under the Haryana Subordinate Judges Rules should be determined on the basis of merit or roster points/appointment dates.
Whether Article 16(4) of the Constitution permits fixation of seniority for reserved‑category candidates.
Whether the High Court’s practice of fixing seniority according to the merit list can be overridden by the Supreme Court.
Whether vacancies in reserved categories may be filled by general‑category candidates without affecting seniority.

Legislation cited

Constitution of Indias. Article 16(4), s. Article 234, s. Article 235, s. Article 300, s. Article 51-A

Subjects

inter se seniorityreservationroster pointsmerit listArticle 16(4)Haryana Civil Servicejudicial service appointmentaffirmative actionservice law

Judgment

BIMLESH TANWAR A
v.
STATE OF HARYANA AND ORS .
•
MARCH I 0, 2003

[V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.) B

Service law:

Rules Relating to the Appointment of Subordinate Judges in the Haryana
Civil Service (Judicial Branch), 1951-Rules 1,8 and JO of Part D-lnter se C
seniority between reserved category candidate and general category
candidate-Determination of-Whether to be on merit or on the basis of roster
point-Held, seniority is to be determined on the basis of merit and not on the
basis of roster points-Seniority on the basis of roster points is to be fixed
where there are different sources of recruitment to a service and quota of D
appointment for each source of recruitment is fixed under the rules -Constitution
of India, 1950-Article 235.

Constitution of India, 1950-Article 16(4)-Scope of-It is to provide
a representation of class of citizenry who are socially or economically
backward-It is not for fixation of seniority. E
A competitive examination was held for appointment to 28 posts of
subordinate Judges. 11 vacancies were for general category and 17
vacancies were reserved. The result was declared on 15.9.1989. 42
candidates were declared qualified in the select list. 32 among them were
from general category and 10 were from reserved category, thus leaving F
7 reserved vacancies unfilled. The select list was for the existing vacancies
and also the vacancies which were anticipated to ari~e during the period
of 2 years from the date of publication of the result. High Court dereserved
the unfilled reserved vacancies to general category, thus raising the
vacancy in general category from 11 to 18. Respondent Nos. 8 to 11,
candidates of general category, who were placed at serial Nos. 14, 15, 16 G
and 18 respectively in the select list, were appointed at later dates, after
litigation.

Representations were made by the judicial officers for determination
of their inter se seniority and the matter was considered by a sub- H
757
758 SUPREME COURT REPORTS (2003) 2 S.C.R.

A committee which opined that seniority would be determined as per merit t. -

and not on the basis of respective dates of appointment of the candidates.
The recommendations of the sub-committee were accepted by Full Court
of High Court by adopting a resolution in that behalf. Aggrieved thereby,
..
appellant herein- a reserVed category candidate, filed writ petition which
B was dismissed by High Court.

In appeal to this court appellant contented that the vacancies in the
reserved categories had to be filled up in accordance with the roster
points, and hence, no general category candidate would have been
appointed against such vacancies.
c Respondent contented that inter se seniority was rightly determined
on the basis of merit; that having regard to the instructions issued by
Haryana Government in its Circular dated 27.04.1972, roster points can
not be considered as seniority points; and that since these instructions
have been followed by High Court for a long time, there is no reason to
D deviate from such practice.

Dismissing the appeal, the Court

HELD: 1. Rules 1,8 and JO of Part D of Rules relating to the
Appointment of Subordinate Judges in the Haryana Civil Service (Judicial
·E Branch), 1951 lay emphasis on merit. It for all intent and purport excludes
the applicability of rule of appointment in terms of roster points.
(768-C-D)

Chairman, Puri Gramya Bank and Anr. v. Ananda Chandra Das and
Ors., (1994) 6 SCC 301; Pilla Sitaram Patrudu and Ors. v. Union of India
~.
F and Ors., (1996] !! SCC 637; Neelima Shangla v. State of Haryana, (1986) 4
SCC 268 and Ajit Singh and Ors. (II) v. State of Punjab and Ors., (1999) 7
sec 209, relied on.
P.S. Gha/aut v. State of Haryana and Ors., (1995( 5 sec 625,
overruled.
G
A.I.I.MS. Students' Union v. A.J.I.MS. and Ors., [2002( 1 sec 428;
K. Duraisamy and Anr. v. State of T.N. and Ors., [2002[ 2 SCC 538; State
ofHaryana v. Rajiv Kumar, C.A. Nos. 4426-28 of 1994 decided by Supreme
Court and Kamal Kant and Ors. v. State of Haryana and Anr., [1991) 3
H Recent Services Judgments, referred to.
BIMLESH TANW AR v. STA TE 759
2. In the absence of rules governing seniority, an executive order A
may be issued to fill up the gap. Only in the absence of a rule of executive
instructions, the court may have to evolve a fair and just principle which
could be applied in the facts and circumstances of the case. (776-D)

3. Seniority is not a fundamental right. It is merely a civil right.
Inter se seniority of the candidates who are appointed on the same day B
'would be dependant on t:1e rules governing the same. Only in absence of
any statutory rules, the general principles may be held to be applicable.
(777-El

Union of India v. M.L. Capoor, (197411 SCR 797, referred to.
c
4. Punjab and Haryana High Court in exercise of its power of
control under Article 235 of the Constitution of India had been
determining inter se seniority of the candidates in terms of the instructions
of the State dated 27th April, 1972. In absence of any statutory rules, the
said practice was develoµed which cannot be said to be arbitrary. In any D
event, such practice cannot be interfered at this stage; keeping in view
the fact that the rights of a large number of officers must have f1lready
been determined in terms thereof. In the instant case, the respondents
Nos.8 to 11 admittedly were more meritorious. They were unjustly
deprived of their right of appointment, although they were entitled thereto
having regard to Rule 10 of the Rules. They suffered for no fault on their E
part. They had to approach the High Court for ventilating their grievances.
The High Court directed the first respondent herein to make appointment
and only pursuant thereto and in furtherance thereof they were appointed.
They should not in aforementioned situation be permitted to lose their
seniority. Long standing practice, as well as justice and equity favour the F
respondents. It is beyond any cavil that merit has a role to play in the
matter of determination of inter se seniority. (777-E-H; 778-A)

Wing Commander J. Kumar v. Union of India and Ors., (1982) 2 SCC
116, relied on.
G
5. Despite absence of any specific rule relating to determination of
inter se seniority, a long standing practice prevailing in High Court has
been that seniority be determined strictly on the basis of the order of
merit. It is also not in dispute that the results of the said examination
were published by the Commission on 15.9.1989. The candidate who
could be appointed from amongst the said list were for those vacancies H
760 SUPREME COURT REPORTS [2003) 2 S.C.R.

A which were existing on that date as also likely to occur upto September, ! -

1991. In terms of the Rules their names had to be entered in the register.
It was not so done. The right of the candidates who could be appointed in
terms of the extant Rules was ignored. (768-D; 769-E(

6. An affirmative action in terms of Article 16(4) of the Constitution
B is meant for providing a representation of class of citizenry who are
socially or economically backward. Article 16 of the Con~titution of India •
is applicable in the case of an appointment. It does not speak of fixation
of seniority. Seniority is, thus, not to be fixed in terms of the rosh~r
points. If that is done, the rule of affirmative action would be extended
C which would strictly not be in consonance of the constitutional schemes.
(774-E]

Union of India v. S.S. Uppal, (1996] 2 SCC 168, relied on

7. In a case where there are different sources of recruitment to a
D service and quota of appointment for each source of recruitment is fixed
under the rules, the seniority vis-a-vis of different sources of recruits
could legally be fixed on basis of roster points. It was in that situation
that quotas be specified in relations to posts as contradistinguished. from
quota in relation to vacancies. (775-C-D]

E All India Judges Association and Ors. v. Union of India and Ors.,
(2002] 4 sec 247; R.K. Sabharwal and Ors. v. State of Punjab and Ors.,
(19951 2 sec 745 and Direct Recruit Class ff Engineering Officers'
Association v. State of Maharashtra and Ors., 11990( 2 SCC, distinguished.

CIVIL APPELLA T~ JURISDICTION : Civil Appeal No. 879 cif
F 2000.
From the Judgment and Order dated 18.8.1999 of the Haryana High
Court in C.W.P. No. 3713 of 1998.

Dr. Krishan Singh Chauhan, Prof. D.N. Sandanshiv and Chand Kiran,
G for the Appellants.
P.P. Rao, Ms. Kavita Wadia, Nikhil Nayyar, Sudhir Nandrajog (NP),
Manoj Swarup (NP), Hari Shankar K., Rohit Tandon, Pankaj Kalra and Aseem
Mehrotra for the Respondents.

H The Judgment of the Court was delivered by
1
_, BIMLESH TANWAR v. STATE [S.B. SINHA, J.] 761
S.B. SINHA, J. Criteria for determining inter se seniority amongst the A
officers of Haryana Judicial Service; whether on the basis of merit in terms
of the merit list or the date of joining, is the core question involved in this
appeal which arises out of a Judgment and Order dated 18.8.1999 passed by
the Punjab & Haryana High Court in C.W.P. No. 3713 of 1998 filed by the
appellant herein.
B
The basic fact of the matter is not in dispute. Haryana Public Service
,•
Commission, respondent No. 3 herein issued an advertisement notifying 24
vacancies of Haryana Civil Services (Judicial Branch) on or about 16.8.1988.
The break up of the said posts is as under :

(i) Vacancies for General Category 9
c
(ii) Vacancies reserved for scheduled
castes 10

(including five vacancies
which remained unfilled on D
account of non-availability of
candidates belonging to SC
Category in the competitive
exam. Held in 1985-86)
(Advertised 3rd time). E
(iii) Vacancies reserved for ESM 3

(iv) Vacancies reserved for
Backward Classes 2
F
A competitive examination was held in December, 1986. By a Memo
dated 6.2.1989, the first respondent herein sent requisition for anticipated
vacancies upto 31.12.1990; the break up of which is as under:

I. General Category 2
G
2. Scheduled Castes

3. Backward Classes

By order dated 27th July, 1989, the Commission recommended 21
names for 28 vacancies, the break up of which is as under:
H
762 SUPREME COURT REPORTS [2003) 2 S.C.R.

A I.

2.
General Category

Scheduled Castes
11

5
-
3. Backward Classes 3

B 4. Ex-Service men 2

The result of the said examination for recruitment of the HCS(Judicial)
Branch was published in the Haryana Gazette on or about 15.9.1989; from
a perusal whereof, it would appear that the appellant herein was placed at
serial No. 33 whereas the respondent Nos. 8 to 11 were placed at serial Nos.
C 14, 15, 16 and 18 respectively. It is not in dispute that on or about 6.2.1989
it was notified that existing and notified vacancies would be increased ,by 4;
as a resu It whereof a further reservation being one for Scheduled itastes
candidate and 1 for Backward Class candidate and 2 for general candidates
was made, the break up whereof is :

D I. Scheduled Castes

2. Backward Classes

3. General category 2

E The break up of all the 28 vacancies was as follows:

I. General category 11

2. Scheduled Castes 11

F 3. Backward classes 3

4. Ex-service men 3

In the result published by the Haryana Public Service Commission, 42
candidates were declared qualified in terms of the provisions of the 'Rules
G Relating to the Appointment of Subordinate Judges in the Haryana Civil
Service (Judicial Branch), 1951' (hereinafter referred to as 'the Rules'). Out
of the successful candidates, three persons, namely, Mr. Baljeet Singh, Mr.
Guiab Singh and Mr. Chaman Lal Mohan whose names figured at serial Nos.
27, 39 and 42 belonged to the Backward Classes. Five persons including the
appellant herein, namely, Mr. Ram Singh, Mrs. Bimlesh Tanwar, Mr. Krishan
H Kumar, Mr. Ram Niwas Bharti and Mr. Jagdish Rai Duggal who were at
BIMLESH TANWAR v. STATE [S.B. SINHA, J.) 763

. serial Nos. 30, 33, 38, 40 and 41 of the Select List respectively belonged to A
, Scheduled Castes and two persons, namely, Mr. Man Mohan Dhonchak and
.
Mr. Chander Bhan were selected from the category of Ex-servicemen. 10
posts were, therefore, available for 17 posts reserved for different categories.
According to the High Court, seven vacancies reserved for the members of
Scheduled Castes and one for Ex-servicemen could be filled up from amongst B
the candidates belonging to the general category raising the number of posts
·available therefor to 18. However, despite the fact that 18 posts were available
for members of the general category, for reasons best known to the State,
only 8 persons belonging to the general category were appointed by an order
dated 9.12.1989.

Respondents Nos. 9 and 10 thereafter with three other candidates who
c
despite the fact that their names appeared in the merit list but were not
appointed, filed a writ petition in the High Court contending inter alia therein
that their names should have been entered in the register maintained therefor
as envisaged by Rule 1 of Part- D of the Rules and to fill up the existing
vacancies and also the vacancies, which are anticipated to arise during the D
'' period of2 years from the date of publication of the result of the examination,
i.e., up to December, 1991. ThP. said writ petition was allowed by order dated
5.2. i 991 holding:

"In terms of the law laid down by the Supreme Court in Neelima
Shangla 's case, [ 1986] 4 SCC 268, we direct the State of Haryana to E
forward the list of 42 candidates, who qualified in the examination
(32 general and 10 reserved) held in December, 1988 and the High
Court would forthwith enter the names of such number of candidates
as would be necessary in terms of Rule 8 of Part- D of the Rules in
the Register in order of merit. The names of the candidates of the F
reserved categories would also be brought on the Register in the
same manner. The High Court would then consider to fill up the
remaining vacancies and would forward the names of the requisite
number of candidates to the State Government for appointment as per
Rule 7(1) of Part D of the Rules as Subordinate Judges under Article
234 of the Constitution. While doing so it will be open to the High G
Court in the interests of higher standard not to recommend the names
of all the candidates, who obtained 55 per cent marks and the
appointment can be restricted to such number of candidates, who
obtained higher percentage than 55 per cent as may be decided by the
High Court and agreed to by the Government." H

..
).
764 SUPREME COURT REPORTS [2003] 2 S.C.R. ·'

A It is not in dispute that this Court in Nee/ima Shang/a v. State of
Haryana and Ors., [ 1986] 4 SCC 268 directed that she be assigned seniority
with the 1984 Batch. The High Court's direction was made in the light of the
observations of this Court in Neelima Shangla.

The High Court, on its administrative side thereafter by a letter dated
B 20.8.1991 requested the State to comply with the order passed by it on its
judicial side and issued order for appointment in respect of Ms. Ritu Jhanji,
S/Shri A.S. Narang and Kamal Kant, whose names as noticed hereinbefore,
figured at serial Nos. 14, 15 and 16 of the merit list. The appointment letters
of Mr. A.S. Narang and Kamal Kant were issued on 18.11.1991 whereas the
C appointment letter of Ms. Ritu was issued on 21.1.1992. As in the meantime,
two more candidates, namely, Ms. Archna Soni (serial No. 13) and Mr. Kali
Kishore Sharma (senial No. 17) expressed their unwillingness to join the said
post, the State Government was requested for the appointment of Ms. Sarita
Gupta (serial No. 18). A similar request was made by letter dated 14.10.1992
for appointment of Mrs. Manisha Chopra (now Manisha Batra), and S/Shri
D Satish Kumar Garg and Rajiv Tyagi whose names appeared at serial Nos. 19,
20 and 21 of merit list but the State refused to accede to the said
recommendations. Aggrieved the said candidates filed writ petitions before
the High Court which was marked as CWP Nos. 963/93, 5400/93, 5602/93
and 637/93. The writ petitions of Mr. Rajiv Tyagi and Ms. Manisha Chopra
E was allowed whereas the writ petition of Mr. Pramod Kumar was disposed
of with a direction to the High Court to recommend his name under the Rules
with a further direction that thereafter the State Government would appoint
him forthwith. However, other two writ petitions were dismissed. On an
appeal preferred against the said judgment by the I st respondent herein in
relation to the writ petition filed by Ms. Manisha Chopra, although special
F leave was granted by this Court but ultimately having regard to the undisputed
factual position that there has been an existing vacancy, the said appeal was
dismissed. However, the appeals in relation to Mr. Rajiv Tyagi and Mr.
Pramod Kumar being Civil Appeal Nos. 4426 and 4428 of 1994 were allowed.
Pursuant to and in furtherance of the order of this Court, an offer of
G appointment was issued in favour of Ms. Manisha Batra on 7.11.1994.
Representations were made by the judicial officers for determination of
their inter se seniority in the aforementioned premise and the matter was
considered by a Sub-committee appointed by the High Court. The Sub-
committee upon giving opportunities of hearing to all parties and/or their
H lawyers opined that having regard to the consistent practice followed by the
BIMLESH TANW AR v. STATE [S.B. SINHA, J.] 765
High Court that seniority be determined as per merit, the same rule should A
be made applicable and thus negatived the contention raised on behalf of the
appellant and persons similarly situated that inter se seniority be determined
on the basis of the respective dates of appointments of the candidates. While
arriving at the said decision, the Sub-committee found that the cases of the
concerned candidate is similar to that of Neelima Shangla.
B
The said recommendations of the Sub-committee were accepted by the
Full Court of the High Court by adopting a resolution in that behalf on or
about 17.7.1997. Aggrieved thereby, a writ petition was filed by the appellant
herein which by reason of the impugned judgment was dismissed.

Before the High Court, only two contentions were raised on behalf of
c
the appellant, namely : (I) that the vacancies, which remained unfilled because
of non-availability of the candidates from the reserved category, i.e., Scheduled
Castes category, could not have been diverted to general category candidates
as the same could not have been dereserved and factually these very vacancies
of the year I 989 which remained unfilled from the Scheduled Castes category D
·were actually adver::ised in the year 1992 and, therefore, there were no posts
vacant for the private respondents, who have been given appointment in the
batch of year 1989 because of non-existency of posts in the general category;
and (2) that even though the petitioner, who belongs to Scheduled Castes
category may have been below the general category candidate in the merit
list, yet the seniority is to be determined as per the roster points and not E
according to merit. Both the said contentions did not find favour with the
High Court

Dr. Krishan Singh Chauhan, learned counsel appearing for the appellant
has raised a number of contentions in support of this appeal. The learned p
counsel contends that as nine posts were advertised for general categories,
appointment of 18 persons thereagainst was illegal. Reliance in this behalf
has been placed on Ashok Kumar and Ors. v. Chairman, Banking Service
Recruitment Board and Ors., [1996] I SCC 283.

The learned counsel contended that the appellant herein would not G
question the legality or validity of the appointments of respondents Nos. 8 to
11 but submitted that no candidate from the waiting list appointed subsequently
I could be appointed from a back date. A person appointed pursuant to the
order of the High Court, urged Dr. Chauhan, shall be deemed to be in service
from the date he joins and not prior thereto. It was contended that having H
766 SUPREME COURT REPORTS [2003] 2 S.C.R.

A regard to the fact that vacancies in the reserved categories had to be filled up
in accordance with the roster points, no general category candidate would
have been appointed against such vacancies having regard to the decision of
the apex Court in R.K. Sabharwal and Ors. v. State of Punjab and Ors., "
(1995] 2 SCC 745. The learned counsel would urge that the vacancies must
B be filled up as per roster points and this principle of law has been reiterated
by a Constitution Bench of this Court in All India Judges' Association and
Ors. v. Union of India and Ors., (2002] 4 SCC 247.

Dr. Chauhan urged that having regard to the Amendment in the
Constitution inserting Article l 6(4A), the decision of this Court in Ajit Singh
C and Ors. (II) v. State of Punjab, (1999] 7 SCC 209 must be held to have lost
its efficacy. Our attention has also been drawn to the opinion of the
Commission that inter se seniority of the officers be determined on the basis
of respective dates of appointment.

Mr. P.P. Rao, learned senior counsel appearing on behalf of Respondent
D Nos. 8 to 11, on the other hand, submitted that having regard to the practice
prevalent in the Punjab & Haryana High Court inter se seniority has rightly
been determined on the basis of result of the examination conducted by the
Public Service Commission. The learned counsel would urge that as this
Court in Neelima Shangla (supra) while considering the question of
appointment of a candidate under the said Rules directed that she be placed
E in the seniority list of 1984 Batch, there is no reason as to why this Court
would deviate from the said principle.

Mr. Rao would urge that it is not within the province of the Commission
to make recommendations as regards the inter se seniority of the candidates
F in as much as its function is merely to make recommendations for appointment
of the candidates upon preparing a select list therefor.

It was submitted that having regard to the instructions issued by the
Haryana Government in its Circular letter dated 27.4.1972; roster points
cannot be considered as seniority points and further having regard to the fact
G that these instructions have been followed by th~ High Court for a long time,
there is absolutely no reason as to why such a practice should be deviated
from. The learned counsel contended that this Court in Ajit Singh-(11) (supra)
having .categorically held that roster points are not intended to determine
seniority between general candidates and reserved candidates, the impugned
judgment cannot be faulted with.
H
,/'\ BIMLESH TANWAR v. ST ATE (S.B. SINHA, J.] 767
-,;
It is not in dispute that the Rules are in force since 26.10.1951. Part - A
A of the Rules lays down the qualifications for appointments. Part· B of the
Rules provides that the advertisement to be issued for the post by Haryana
Public Service Commission as also the mode and manner in which the
applications are required to be submitted by the candidates. Part- C of the
said Rules relates to the examination of the candidates. Rule 7 provides that
"no candidate shall be called for the viva-voce test unless he obtains at least
B
45 per cent marks in the aggregate in all the written papers and 33 per cent
marks in the language paper of Hindi (in Devnagri Script)".

~
Rule 8 of the Rules is as under:

"No candidate shall be considered to have qualified in the c
examination unless he obtains at least 55 per cent marks in the
aggregate of all papers including the viva-voce test.

The merit of the qualified candidates shall be determined strictly
according to the marks obtained by them;
D
Provided that in case two or more candidates obtain equal marks,
their merit shall be detennined according to the marks secured by
them in viva-voce and if the marks in the viva-voce of the candidates
are also equal the older in age shall be placed higher in order of
merit."
E
Rule 10 which is important for the purpose of determination of the
matter reads as under:

"(i)The result of the Examination will be published in the Punjab
Government Gazette. (ii) Candidates will be selected for appointment
strictly in the order in which they have been placed by the Punjab F
Service Commission in the list of those who have qualified under rule
8.

- Provided that in the case of candidates belonging to the Scheduled
Castes/Tribes and other backward classes, Government wi II have a
right to select in order of merit a candidate who has merely qualified G
under rule 8, irrespective of the position obtained by him in the
I examination;

Provided further that the selection of candidates belonging to the
Scheduled Castes/Tribes and other Backward Classes in the order of
H
~
768 SUPREME COURT REPORTS (2003] 2 S.C.R.

A merit inter se shall be made against the vacancies reserved for them
and in the manner prescribed by Government from time to time."

Rules I and 8 or Part-D governing appointments read thus:

"I. The names of candidates selected by Government for appointment
B of Subordinate Judges under rules I 0 and 11 of Part-C shall be entered
on the High Court register in the order of their selection."

"8. There is no limit to the number of names borne on the High Court
register but ordinarily no more names will be included than are
estimated to be sufficient for the filling of vacancies which are
c anticipated to be likely to occur within two years from the date of
selection of candidates as a result of an examination."

The Rules, therefore, indisputably lay emphasis on merit. It for all
intent and purport excludes the applicability of rule of appointment in terms
of roster points.
D
It is not in dispute that despite absence of any specific rule relating to
determination of inter se seniority, a long standing practice prevailing in the
High Court has been that it be determined strictly on the basis of the order
of merit. It is relevant to note that the State of Haryana had issued instructions
on or about 27.4.1972, the relevant portions whereof are as under:
E
"It has come to the notice in the matter of fixing seniority, there has
been misinterpretation of the relevant instructions in some instances
and members of SCs/BCs been assigned seniority according the serial
numbers of the vacancies reserved for them under the block system
(as indicated below) and not as they should have according to the
F order of candidates determined by the Public Service Commission:-

Vacancies reserved for 1,6,11,24,16,21,26,27, 31-36, 41, 46, 56,
SCs/BCs in every block 61, 66-71, 76-77, 81, 86, 91, 96 (No. 27
of I 00 vacancies and 77 fof BCs.)

G For example when 8 vacancies were to be filled and the l st and
the 6th were reserved for the members of SCs two schedule castes
candidates were placed at SI. No. I and serial no. 6 respectively in
the combined seniority list of the candidates although the combined
seniority list prepared by the PSC/SSSB their position were lower.

H 2. It has to be pointed out that this was irregular and inter se seniority
·~
J..
BIMLESH TANWAR v. STATE [S.B. SINHA, J.] 769
of all the candidates taken together (i.e. whether appointed against A
reserved vacancies or against open ones), must be fixed according to
the combined merit list and not otherwise. Vacanc"ies assigned to
SCs/BCs under the block system for the purpose of reservation only
and are not intended for are not assigned fixing inter se seniority of
the candidates contrary to their order in the combined merit list B
prepared by the PSC/SSSB.

3. This may please be noted for careful compliance so that in future
seniority is fixed on this basis in case in which reserved vacancies are
filled whether by initial appointment or by promotion. Furthermore,
all earlier cases in which members or SCs/BCs and others have been C
•ssigned seniority erroneously in disregard of the order of candidates
in the combined merit list, should be reviewed and steps taken to
refix seniority correctly. For that purposes, it will be necessary that
the persons who will be affected should be given an opportunity of
showing cause why their seniority should not be fixed at a lower
place, in accordance with the order in the combined merit list such D
opportunity should be duly allowed before refixing seniority/'

The contesting parties herein had appeared in the same examination. It
is also not in dispute that the results of the said examination were published
by the Commission on 15.9.i989. The candidate who could be appointed
from amongst the said list were for those vacancies which were existing on E
that date as also likely to occur upto September, 1991. In terms of the Rule~,
as referred to hereinbefore, their names had to be entered in the register. It
was not so done. The right of the candidates who could be appointed in terms
of the extant rules was ignored.

The interpretation of the Rules came up for consideration of this Court F
in Neelima Shangla v. State of Haryana reported in (1986) 4 SCC 268.
Having regard to the purport of the said Rules it was held:

"The names of the selected candidates are to be entered in a
Register maintained by the High Court in the Order of their selection G
and appointments are to be made from the names entered in the
.J Register in that order. The number of names to be entered in the
Register maintained by the High Court may be sufficient to fill
vacancies anticipated to occur within two years from the date of
selection of candidate as a ·result of the examination. Therefore, it
appears that the duty of the Public Service Commission is confined H
770 SUPREME COURT REPORTS [2003] 2 S.C.R.

A to holding the written examination, holding the viva voce test and
arranging the order of merit according to marks among the candidates
who have qualified as a result of the written and the viva voce tests.
Thereafter, the Public Service Commission is required to publish the
result in the gazette and, apparently, to make the result available to
the government. The Public Service Commission is not required to
J3 make further selection from the qualified candidates and is, therefore,
not expected to withhold the names of any qualified candidates. The
duty of the Public Service Commission is to make available to the
government a complete list of qualified candidates arranged in order
of.merit. Thereafter, the government is to qiake the selection strictly
c in the order in which they have been placed by the Commission as
a result of the examination. The names of the selected candidates are
then to be entered in the Register maintained by the High Court
strictly in that order and appointments made from the names entered
in that Register also strictly in the same order. It is, of course, open
to the government not to fill up all the vacancies for a valid reason.
D
It was clearly held that having regard to the Rules, it was incumbent on
the part of the Commission to communicate the entire list of qualified
candidates to the Government. It was held that the Commission was not
concerned with the number of vacancies at all and a's such it could not have
E withheld the full list of successful candidates on the ground that only a
limited number of vacancies are available. Taking note of the fact that like
the present case, therein also the High Court had informed the Government
that more vacancies were are required to be filled, it was observed:

"If the government had been aware that there were qualified
candidates available, they would have surely applied Rule 8 of Part
F
D and made the necessary selection to be communicated to the High
Court. The net resu It is that qualified candidates, though available,
were not selected and were not appointed. Miss Neelima Shangla is
one of them. In the view that we have taken of the rules, Miss Neelima
Shangla is entitled to be selected for appointment as Sabordinate
G Judge in the Haryana Civil Service (Judicial Branch)."
(

In the aforementioned situation, this Court directed that the names of
the petitioner therein be included in the list of I 984 list of candidates. '
As noticed hereinbefore, a bench of this Court in State of Haryana v.
H Rajiv Kumar C.A. Nos. 4426-28 of 1994 as noticed hereinbefore dismissed
BIMLESH TANWAR v. STATE [S.B. SINHA, J.) 771
the special leave petition in respect of Ms. Manisha Batra (Now Ms. Manisha A
Chopra) holding that a clear vacancy existecl

We may further notice that a Division Bench of the Punjab & Haryana
High Court in Kamal Kant and Ors. v. State of Haryana and Anr., [ 1991] 3
Recent Services Judgments arising out of the same advertisement, directed:
B
"In terms of the law laid down by the Supreme Court in Neelima
Shangla 's case (supra), we direct the State of Haryana to forward the
list of 42 candidates who qualified in the examination (32 general
and 10 reserved) held in December, 1988 forthwith and the High
Court would enter the names of such number of candidates as would
'be necessary in terms of Rule 8 of Part D of the Rules in the Register C
in order of merit. The names of the candidates of the reserved
categories would also be brought on the Register in the same manner.
The High Court would then consider to fill up the remaining vacancies
and would forward the names of the requisite number of candidates
to the State Government for appointment as per Rule7(1) of Part D D
of the Rules as Subordinate Judges under Article 234 of the
Constitution. While doing so it will be open to the High Court in the
interests of higher standard not to recommend the names of all the
candidates who obtained 55 per cent marks and the appointment can
be restricted to such number of candidates who obtained higher E
percentage than 55 per cent as may be decided by the High Court and
agreed to by the Government."

In the aforementioned backdrop, the submission of Dr. Chauhan is
required to be considered.

The question as to whether the determination of inter se seniority would
F
depend upon the filling up of the vacancies so far as the reserved categories
are concerned, having regard to the roster points, in our opinion, is no longer
res integra.

In Ajit Singh and Ors. (II) v. State of Punjab and Ors. reported in 1999 G
(7) SCC 209 a five Judge Bench of this Court has laid down the law in the
following terms:

"It must be noted that whenever a reserved candidate goes for
recruitment at the initial level (say Level I), he is not going through
the normal process of selection which is applied to a general candidate H
772 SUPREME COURT REPORTS [2003] 2 S.C.R.

A but gets appointment to a post rc::served for his group. That is what
is meant by "reservation". That is the effect of "reservation".

Now in a case where the reserved candidate has not opted to
contest on his merit but has opted for the reserved post, if a roster is
set at Level I for promotion of the reserved candidate at various
B roster points to Level 2, the_reserved candidate, if he is otherwise at
the end of the merit list, goes to Level 2 without competing with
general candidates and he goes up by a large number of places. In a
roster with 100 places, if the roster points are 8, 16, 24 etc. at each
of these points the reserved candidate if he is at the· end of the merit
list, gets promotion to Level 2 by side-stepping several general
c candidates. That is the effect of the roster-point promotion.

It deserves to be noticed that the roster points fixed ~t Level I are not
intended to determine any seniority at Level I between general candidates
and the reserved candidates. This aspect we shall consider again when we
D come to Mervyn Continho v. Collector of Customs [1966] 3 SCR 600 lower
down. The roster point merely becomes operative whenever a vacancy reserved
at Level 2 becomes available. Once such vacancies are all filled, the roster
has worked itself out. Thereafter other reseh'ed candidates can be promoted
only when a yacancy at the reserved points already filled· arises. That was
what was decided in R.K. Sabharwal v. State of Punjab, [1995] 2 SCC 745."
E
In Ajit Singh (JI), the decision of this Court in R.K. Sabharwal case has,
thus, been explained.

P.S. Ghalaut v. State of Haryana and Ors., [1995] 5 SCC 625 relied
upon by Dr. Chauhan, is a decision rendered by a two Judge bench. In that
F case Rule 13 of the Rules envisaged that the seniority inter se of members
of the service shall be determined by the length of c0ntinuous service on any
post in the service; provided further that in the case of two or more members
?.ppointed by direct recruitment, the order of merit determined by the
Commission shall not be disturbed in fixing the seniority. Despite the said
G Rule, it was held:

"Take for instance Vacancies Nos. I and 6, as pointed out in the
Chief Secretary's letter have admittedly been reserved for Scheduled
Castes. Suppose recruitment was made to fill up ten vacancies, three
candidates from Scheduled Castes were selected on the basis of
H reserved quota. The question is whether the first candidate will be put

H
BIMLESH TANWAR v. STATE (S.B. SINHA, J.] 773
_j in the quota allo~ci to the Scheduled Castes in the roster. Having A
been selected as a general candidate, though he is more meritorious
than the second and third candidates, he will not get the placement
in the roster, reserved for Scheduled Castes i.e. Nos. I and 6 points.
Consequently candidates Nos. 2 and 3 will get the placement at Nos.
I and 6 and the first candidate will get the placement in the order of B
merit along with the general candidates according to the order of
meri: maintained by the Selection Committee or the Public Service
Commission. He cannot complain that having been selected in the
merit, he must be placed in the placement reserved for Scheduled
Castes at Point No. I in the roster. Equally, though general candidate
is more mer.itorious in the order of merit prepared by the Public C
Service Commission or the Selection Committee, when the
appointments are made and the vacancies are filled up according to
the roster, necessarily and inevitably the reserved candidates though
less meritorious in the order of merit maintained by the Public Service
Commission would occupy the respective places assigned in the roster.
Thereby they steal a march over some of the general candidates and D
get seniority over the general candidates. This scheme is, therefore,
constitutional, valid and is not arbitrary."

We have not been able to persuade ourselves to the aforesaid view.

In A.1.1.M.S. Students' Union v. A.1.1.M.S and Ors., [2002] I SCC 428], E
this Court observed:

"Reservation, as an exception, may be justified subject to discharging
the burden of proving justification in favour of the class which must
be educationally handicapped - the reservation geared up to getting
over the handicap. The rationale of reservation in the case of medical F
students must be removal of regional or class inadequacy or like
disadvantage. Even there the quantum of reservation should not be
excessive or societally injurious. The higher the level of the speciality
the lesser the role of reservation.
G

Any reservation, apart from being sustainable on the constitutional
anvil, must also be reasonable to be permissible. In assessing the
reasonability one of the factors to be taken into consideration wou Id
be whether the character and quantum of reservation would stall or H
774 SUPREME COURT REPORTS [2003] 2 S.C.R.

A accelerate achieving the ultimate goal of excellence enabling the
national constantly rising to higher levels. In the era' of globalisation,
where the natiori as a whole has to compete with other nat.ions of the
world so as to survive, excellence cannot be given an unreasonable
go by and certainly not compromised in its entirety. Fundamental
duties, though not enforceable by a writ of the Court, yet provide a
B valuable guide and aid to interpretation of Constitutional and legal
issues. In case of doubt or choice, people's wish as manifested through
Article 51-A can serve as a guide not only for resolving the issue but
also for constructing or moulding the relief to be given by the Courts."

C In K. Duraisamy and Anr. v. State of T.N. and Ors., [2001] 2 SCC 538,
this Court held:

"The mere use of the word 'reservation' per se does not have the
consequence of ipso facto applying the entire mechanism underlying
the constitutional concept of a protective reservation specially designed
D for the advancement of any socially-and-educationally-backward
classes of citizens or for the Scheduled Castes and Scheduled Tribes,
to enable them to enter and adequately represent in various fields.
The meaning, content and purport of the expression will necessarily
depend upon the purpose and object with which it is used."

E An affirmative action in terms of Article 16(4) of the Constitution is
meant for providing a representation of class of citizenry who are socially or
economically backward. Article 16 of the Constitution of India is applicable
in the case of an appointment. It does not speak of fixation of seniority.
Seniority is, thus, not to be fixed in terms of the roster points. If that is done,
the rule of affirmative action would be extended which would strictly not be
F in consonance of the constitutional schemes. We are of the opinion that the
decision in P.S. Ghalaut does not lay down a good law.

In All India Judges' Association's case [2002] 4 SCC 247, this Court
was considering the matter relating to implementation of recommendations
of Shetty's Commission as regard tile fixation of pay scales of the Judicial
G officers. This Court noticed that sometimes merit suffers because of seniority.
It was directed:

"We direct that recruitment to the Higher Judicial Service, i.e.,
the cadre of District Judges will be :
H (l)(a) 50 per cent by promotion from amongst the Civil Judges
BIMLESH TANWAR v. STATE [S.B. SINHA, J.] 775
(Senior Division) on the basis of principle of merit-cum-seniority and A
passing a suitability test:

(b) 25 per cent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division)
having not less than five years' qualifying service; and
B
(c) ,25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the written a!1d
viva voce test conducted by respective High Courts.

(2) Appropriate rules shall be framed as above by the High Court
as early as possible." c
Only in relation to such promotion, the Court noticed that there exists
a quota system in two different sources of recruitment in service in so far as
seniority is concerned, and whence roster system is followed, the litigation in
the country had been kssor. Jn a case where there are different sources of
recruitment to a service and quota of appointment for each source of D
recruitmtmt is fixed under the rules, the se,1iority vis-a-vis of different sources
of recruits could legally be fixed on basis of roster points. It was in that
situation a desire was expressed that quotas be specified in relation to posts
as contradistinguished from quota in relation to vacancies. This Court,
therefore, directed the High Courts to amend and promulgate seniority rules
in the light of the decisions in R.K. Sabharwal (supra). It was clearly laid E
down:

"It is obvious that this system can only apply prospectively except
where under the relevant rules seniority is to be detemlined on the
basis of quota and rotational system. The existing relative seniority of F
the members of the Higher Judicial Service has to be protected but
the roster has to be evolved for the future. Appropriate rules and
methods will be adopted by the High Courts and approved by the
States, wherever necessary by 31-3-2003."

The said decision cannot be said to have any application whatsoever in G
detemlining inter se seniority as regards vacancies required to be filled up in
the years 1989-1991. Reliance by Dr. Chauhan on the decision of this Court
in Direct Recruit Class II Engineering Officers' Association v. State of
Maharashtra and Ors. quoted in [1990] 2 SCC 715 is equally misplaced.

A question which arose therein for consideration was inter se seniority H
j

776 SUPREME COURT REPORTS [2003] 2 S.C.R.

A between direct recruits and promotees as there existed quota rules and
furthermore appointments were also made on ad hoc basis. It is in that situation,
this Court inter a/ia observed (A): " Once an incumbent is appointed to a
post according to rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation. The corollary
B of the above rule is that where the initial appointment is only ad hoc and not
according to rules and made as a stop-gap arrangement, the officiation in
such post cannot be taken into account for considering the seniority."

The said decision was rendered also having been regard to dispute as
to whether the date of confirmation would be the measure for determining
C inter se seniority.

In Union ofIndia v. S.S. Uppal and Anr. reported in (1996) 2 SCC 168,
it has been held: The provisions of Articles 16(1), 16(4) and 335 of the
Constitution of India imply that a process should be adopted while making
appointment though direct recruitment or promotion in which the merit is not
D affected.
It is also well settled that in the absence of rules governing seniority an
executive order may be issued to fill up the gap. Only in the absence of a rule
or executive instructions, the court may have to evolve a fair and just principle
which could be applied in the facts and circumstances of the case.
E
In Union of India v. Ml. Capoor reported in [1974] I SCR 797 this
Court held:

"Merit is certainly an elusive factor capable of being judged very
differently from different angles or, by applications of varying tests
F of it by different persons, or, by the same persons, at different times.
It was submitted on behalf of the respondents that to make supposed
merit the sole test for selection would be to leave the door wide open
for nepotism to creep into selections for higher rungs of public service
by promotion and that this would undermine the morale of members
of the State services and weaken incentives for honest work and
G achievement of better standards of proficiency by them.

The following passage, from Leonard D. White's "Introduction to
Public Administration" (4th edn. Pages 380,383), cited with approval
by this Court in Sant Ram Sharma's case, 1968(1) SCR 111 was
quoted by the Division Bench: The principal object of a promotion
H
BIMLESH TANWAR v. STATE [S.B. SINHA, J.] 777
system is to secure the best possible incumbents for the higher A
positions, while maintaining the morale of the whole organization.
The main interest to be served is the public interest, not the personal
interest of members of the official group concerned. The public interest
is best secured when reasonable opportunities for promotion exist for
all qualified employees, when really superior civil servants are enabled B
to move as rapidly up the promotion ladder as their merits deserve
and as vacancies occur and when selection for promotion is mad_e on
the sole basis of merit, for the merit system ought to apply as
specifically in making promotions as in original recruitment.

c
Employees often prefer the rule of seniority, by which the eligible
longest in service is automatically awarded the promotion. Within
limits, seniority is entitled to consideration as one criterion of selection.
It tends to eliminate favouritism or the suspicion thereof; and
experience is certainly a factor in the making of a successful employee. D
Seniority is given most weight in promotions from the lowest to other
subordinate positions. As employees move up the ladder of
responsibility, it is entitled to less and less weight. When seniority is
made the sole determining factor, at any level, it is a dangerous
guide. It does not follow that the employee longest in service in a
particular grade is best suited for promotion to a higher grade; the E
very opposite may be true."

Seniority is not a fundamental right. It is merely a civil right. Inter se
seniority of the candidates who are appointed on the same day would be
dependant on the rules governing the same. Only in absence of any statutory
rules, the general principles may be held to be applicable. F
It has been noticed hereinbefore, that the Punjab & Haryana High Court
in exercise of its power of control under Article 235 of the Constitution of
India had been determining inter se seniority of the candidates in terms of the
instructions of the State dated 27th April, 1972, as quoted supra. In absence G
of any statutory rules, the said practice was developed which cannot be said
to be arbitrary. In any event, such practice cannot be interfered at this stage;
keeping in view the fact that the rights of a large number of officers must
have already been determined in terms thereof. In the instant case, the
respondents Nos. 8 to 11 admittedly were more meritorious. They were unjustly
deprived of their right of appointment, although they were entitled thereto H
•
778 SUPREME COURT REPORTS [2003] 2 S.C.R.

A having regard to Rule 10 of the Rules. They suffered for no fault on their
part. They had to approach the High Court for ventilating thefr grievances.
The High Court directed the first respondent herein to make appointment and
only pursuant thereto and in furtherance thereof they were appointed. Should
they in aforementioned situation be permitted to lose their seniority is the
B question involved in this appeal? The answer thereto must be rendered in the
negative. Long standing practice, as well as justice and equity favour the
respondents. It is beyond any cavil that merit has a role to play in the matter
of determination of inter se seniority.

In Wing Commander J. Kumar. v. Union of India and Ors. reported in
C (1982) .Z SCC 116, this Court laid down the law in the following terms:
"Further, the impugned rules are statutory in origin as they have
been promulgated by the President of India under the proviso to
Article 300 of the Constitution. Rule 16 contains a categorical
declaration that in the past also the seniority of service officers
D permanently seconded to the R & D Organisation was being· reckoned
on the basis of their dates of attainment of substantive rank of Major/
Sqn. Ldr./Lt. Cdr., subject to any penalty/loss of seniority that an
officer might suffer subsequently. The declaration is clearly implied
in the opening words "As.hithertofore" occurring in Rule 16 of the
impugned rules. A statement contained in a statute or statutory rule
E of the factual background leading up to the enactment has ordinarily
to be accepted to be acted upon by the court as wholly correct;
nothing clinching has been brought to our notice by the appellant to
justify any departure from the said principle. We do not, therefore,
find it possible to accept the contention of the appellant that prior to
F the <:oming into force of the impugned rule, he had acquired a vested
right to have his seniority in the R & D reckoned with reference to
the date of his permanent secondment and to have all officers joining
the Organisation on subsequent dates ranked only below him. The
plea advanced by the appellant that the impugned rules have illegally
purported to divest him of his vested rights of seniority and promotion
G in the R & D must, therefore, be rejected as devoid of merit."

Iri this case also, although there does not exist any statutory rule but
the practice of determining inter se seniority on the basis of the merit list has
been evolved on interpretation of the Rule$. A select list is prepared keeping
H in view the respective merit of the candidates. Not only appointments are
\

BIMLESH TANWAR v. STATE [S.B. SINHA, J.] 779
11 required to be made on the basis of such merit list, seniority is also to be
determined on that basis as it is expected that the candidates should be
A

joining th.eir respective posts almost at the same time. Yet again in Chairman,
Puri Gramya Bank and Anr. v. Ananda Chandra Das and Ors., [1994] 6
SCC 30 I th.is court held:

"It is settled law that if more than one are selected, th.e seniority is B
as per ranking of the direct recruits subject to the adjustment of th.e
candidates selected on applying the rule of reservation and the roster.
By mere fortuitous chance of reporting to duty earlier would not alter
th.e ranking given by th.e Selection Board and the arranged one as per
roster. The High Court is, therefore, wh.olly wrong in its conclusion C
that the seniority shall be determined on the basis of the joining
reports given by the candidates selected for appointment by direct
recruitment an4 length. of service on its basis."

__In Pilla Sitaram Patrudu and Ors. v. Union of India and Ors. reported
in [1996] s sec 637 it was held: D
"It is contended by the learned :ounsel for the petitioners th.at
since the inter se seniority as Assistant Engineers was left open in the
order, th.e directions given by the Tribunal to consider the case as
Executive Engineer and determine h.is seniority on the basis of
promotion, is not valid in law. We find no force in the contention. E
Once he is found to be eligible according to the rules, then his seniority
is required to be determined as per th.e procedure prescribed in the
rules in vogue. It is further contended that the fifth respondent was
not qualified since he had not completed 8 years of required service.
The Tribunal h.as recorded a finding that two years' period is relaxable
in th.e case of the reserved candidate. The inter se seniority as Assistant F
Executive Engineer is required to be determined; he joined service in
1981 and, therefore, he did not have the requisite service. We find no
force in the contention. Since -he was selected by direct recruitment,
he is entitled to be appointed according to rule. His appointment was
delayed for no fault of his and he came to be appointed in 1981, he G
is, therefore, entitled to the ranking given in the select list and
appointment made accordingly. Under these circumstances, we do
not find any illegality in the order."

Furthermore, it is now well settled that a settled seniority position should
not be unsettled. The respondents had already been posted to th.e post of H
780 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Additional District Judge. As would appear from the report Qf the Sub-
committee that the seniority list was published in the y\!ar 1992.
Representations were, however, made only in the year 1997 which was rejected
by the High Court on 22nd August, 1997. The writ petition was filed in
March, 1998 which was dismissed by reason of the impugned judgment
dated 18.8.1999.
B
For the foregoing reasons, we do not find any merit in this appeal. It
is dismissed accordingly. However, in the facts and circumstances of the
case, there shall be no order as to costs.

K.K.T. Appeal dismissed.