Holding

The reservation provisions require that the eligible ST officer be promoted, and the Tribunal erred by relying solely on the combined select list without applying the separate ST select list as mandated by the memoranda.

Summary

The appellant, a Scheduled Tribe (ST) officer in Central Water Engineering, was eligible for promotion to Deputy Director/Executive Engineer and was placed at No. 26 in a combined select list prepared by the Departmental Promotion Committee. Only 22 promotion vacancies materialised, and the first 22 names on the combined list were promoted, leaving the appellant unpromoted. The appellant argued that, under the reservation policy of Office Memorandum No. 27/2/71‑E(SET) dated 27.11.1972 and the 1989 memorandum, at least one of the 22 vacancies should have been reserved for an ST candidate, and he was the sole eligible ST officer. The Central Administrative Tribunal held that the combined list alone governed promotions and dismissed the appellant’s claim. The Supreme Court examined the memoranda and held that the reservation quota must be applied using separate ST select lists, and the appellant should have been promoted, setting aside the Tribunal’s order. Consequently, the appellant was deemed promoted with effect from 28‑02‑1990 and awarded costs.

Issues considered

Whether the Tribunal correctly interpreted Office Memorandum No. 27/2/71‑E(SET) regarding the application of reservation quotas in promotions.
Whether the combined select list alone determines the order of promotion for Scheduled Tribe candidates.
Whether the sole eligible ST officer must be promoted despite his position in the combined list when vacancies are fewer than anticipated.
Whether the reservation percentage (7.5% for STs) is mandatory in each promotion cycle irrespective of the number of vacancies.

Legislation cited

Administrative Tribunals Act, 1985s. 19

Subjects

service lawpromotionreservationscheduled tribescentral water engineeringdepartmental promotion committeeadministrative tribunalseniorityreservation quota

Judgment

P. SHESHADRI A
v.
UNION OF INDIA AND ANR.

MARCH 9, 1995
B
(S.C. AGRAWAL AND FAIZAN UDDIN, JJ.J

Service Law:

Promotion-'-CentrOJ Water Engineering (Group-A) Servic~Appoint
ment to the post of Dy. Director/Executive Engineet-Reservations C
policy/scheme for Scheduled Tribe candidates--Procedure to be followed-In-
terpretation of Office Menwffinda issued in this regard and the scheme
underlying it.

The appellant who belongs to S.T. community was holding the post D
of Assistant Director/Assistant Executive Engineer in Central Water En·
gineering (Group-A) and was eligible for promotion to the next grade of
Deputy Director/Executive Engineer. His name was included in the panel
of sel~d candidates and was placed at SI.No. 26 in the combined lisL
Persons at sl.no.1 to 22 In the panel were promoted and the appellant was
not promoted. He approached the Central Administrative Tribunal claim· E
ing that since 22 persons were promoted, adeast there could be one Roster
point belonging to Scheduled Tribe candidate against which he could have
been promoted. /
/
. ,/
The Respondents contested the appellant's-'lipplication by stating . F
that 75 vacancies were expected upto 31.U.90 and accordingly the panel
was prepared; that as per the directions contained in omce Memorandum
No. 27/2171-E(SET) dated 27.11.197~ issued by the Department of Person·
nel, three separate lists one of general candidates and the other two of SC
a'1d ST respectively were prepared and were merged into one combined list
in which the names of all the selected officers including those belonging to G
Scheduled Castes and Scheduled Tribes were arranged in the order of
their inter·se seniority in the feeder cadre; that the number of vacancies
as were anticipated did not come through and they could promote only 22
officers from the combined. list and that the appellant's chances of promo-
tion would coQle according to his placement in the approved panel. H
621
622 SUPREME COURT REPORTS [1995) 2 S.C.R.

A The Tribunal, after analysing the Office Memorandum dated
27.11.1972, took the view that the respondents committed no illegality in ~
promoting the 22 persons. Thus it rejected the application of the appellant.

In this appeal against the abovesaid order, the appellant contended
B that atleast one post could have been available for Scheduled Tribes when
,,,-,

22 promotions were ordered and that he could have been promoted against
such a vacancy.

Allowing the appeal, this Court

HELD : 1. A combined reading of the instructions contained in the
relevant memoranda would show that in the first instance the number of
reserved vacancies in a year have to be worked out on the basis of 40 point
roster as envisaged in sub- clause (i) of paragraph 3 of O.M. dated
27.11.1972. Thereafter separate lists are to be drawn up of the eligible
D Scheduled Castes or Scheduled Tribes officers arranged in the order of
their inter se seniority in the main list. Clause (iii) of paragraph 3 enjoins
a duty on the Departmental Promotion Committee to adjudge the
Scheduled Castes and Scheduled Tribes officer separately in regard to
their fitness. Thereafter the select lists of the officers in the general
E category and those belonging to the Scheduled Castes and Scheduled
Tribes are prepared by the Departmental Promotion Committee. The same
bave to be merged into a combined select list in which the names of all the
selected officers, general as well as those belonging to Scheduled Castes
and Scheduled Tribes are arranged in the order of their inter se seniority
in the original seniority list of the category/grade from which the promo-
F tion is being made and this combined select list is the basis for making
promotions in vacancies as and when they arise during the year. [629-8-DJ

2. Clause (ii) of paragraph 2.3.2 of O.M. dated 10.3.1989 con-
templates that selection against vacancies reserved for Schedule Castes
and Schedule Tribes will be made only from those Schedule
G Caste/Schedule Tribes officers who are within the normal zone of con-
sideration prescribed by the Department of Personnel and A.R. vide O.M.
No. 22011 dated 24th December, 1980. It further contemplates that where
number of Scheduled Caste/Schedule Tribes candidates are not available
within the normal field of choice, it may be extended to Five Times the
H number of .acaDdes and Schedule Caste/Schedule Tribe candidates (and
P. SHESHADRI v. U.0.1. 623

not any other) coming within the extended field of choice, should also be A
considered against the vacancies reserved for them. If candidates from
Scheduled Castes and Scheduled Tribes obtained on the basis of merit
with due regard to seniority, on the same basis as others, are less than the
number of vacancies reserved for them, the difference should be made up .
by selecting candidates of these communities, who are in the zone of B
consideration, irrespective of merit and· b.ench mark but who are con-
sidered for promotion and officers belonging to Scheduled Castes and
Scheduled Tribes selected for promotion against vacancies reserved for
them from within the extended field of choice would however be placed en
block all the other officers selected from within the normal field of choice.
In view of the aforesaid clear instructions with regard to the reservation C
quota for the Scheduled Tribes as 7-112 per cent, it is beyond comprehen-
sion to say that not even a single post will go to the member of Scheduled
Tribe out of the 22 posts which were available for promotion to the post
of Dy. Director/Executive Engineer on the relevant date i.e. on the date
when 22 officers were promoted to that grade. Any other interpretation of D
the memoranda will not only frustrate the scheme but it will render the
y
reservation policy as nugatory and no effect to the reservation quota can
·~ be given. [629-E-H, 630-A-B]

3. The tribunal seems to have been misled by the last sentence
contained in clause (iv) of paragraph 3 in O.M. dated 27.11.1972 viz. "'This E
combined select list should therefore be followed for making promotions
in vacancies as and when they arise during the year." This sentence cannot
be read tom out of the context in which it has been used. The preceding
clauses clearly contemplate that there have to be separate select lists of
officers in the general category as well as those belonging to the Scheduled p
Castes and Scheduled Tribes having been prepared by the Departmental
Promotion Committee and then all the three have to be merged to form a
combined select list. It does not mean that in the case of Scheduled Castes
and Scheduled Tribes the promotions have to be made only in accordance
with the placement of the members of the Scheduled Caste and Scheduled
Tribe in the combined select list. They have to be picked up from the select G
list of officers belonging to Scheduled Castes and Scheduled Tribes
prepared by the Departmental Promotion. committee, according to the
availability of reserved vacancies and their tum in the said lists. This
intention is also spelt out from clause ·(ii) of para 2, 3, 2 of O.M. dated
10th March, 1989 which provides that promotion by selection against H
I

624 SUPREME COURT REPORTS (1995) 2 S.C.R.

A vacancies reserved for Scheduled Caste and Scheduled Tribe will be made
only from those Scheduled Caste/Scheduled Tribe officer who are within
the normal zone of consideration. [630-C-G]

4. The appellant having been selected by the Departmental Promo-
tion committee and he being the only eligible officer belonging to the
B Scheduled Tribe community should have been promoted to the higher
. post/grade of Dy. Director/Executive Engineer and the respondents com-
mitted a serious error and illegality in not doing so. [630-H, 631-A]

5. It seems the appellant was promoted as Dy. Director/Executive
C Engineer by order dated 7.9.1993 and had joined on 22.9.1993. Since the
appellant was entitled to be promoted on 28.2.1990, it Is directed that he
will be deemed to have been promoted. with efTect from 28.2.1990 with all
consequential benefits. (631-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3265 of
D 1995. .

From the Judgment and Order dated 31.7.92 of the Central Ad- v
ministrative Tribunal at Hyderabad in O.A. No. 1184 of 1991. ~

Kishore Kumar Patel and Satya Mitra Garg for the Appellant.
E·
P.P. Malhotra, A.K. Srivastava and Ms. Sushma Suri for the' Respon-
dent. ·

.The Judgment of the Court was delivered by

F FAIZAN UDDIN, J.1. Delay condoned.

2. Leave granted. Counsel for the parties are heard.

3. In this appeal under Article 136 of the Constitution of India the
appellant has challenged the judgment dated 31.7.1992 passed by the
G Central Administrative Tribunal, Hyderabad Bench· at Hyderabad
(hereinafter referred to as the Tribunal) dismissing the application of the
appellant filed under Section 19 of the Administrative Tribunals Act, 1985
against the respondents herein seeking the relief of declaration that the
action of respondents No. 1 and 2 in not promoting the applicant to the
H post of Dy. Director/Executive Engineer alongwith other candidates by an
\

P. SHESHADRI v. U.0.1.[FAIZANUDDIN,J.) 625

order dated 28.2.1990 as arbitrary or illegal. In the said application the A
appellant also sought a direction to the respondents to declare him as
having been promoted to the post of Dy. Director/Executive Engineer with
effect from 28.2.1990 with all consequential benefits.

4. The short question that arises for determination by this Court in
this appeal is whether the Tribunal has correctly interpreted the Office B
Memorandum No. 27/2/71-E4(SET) dated 27.11.1972 in holding that the
appellant was not entitled to be promQted as Dy. Director/Executive
Engineer because of his placement in the approved promotion panel.

5. Admittedly at the relevant time the appellant was holding the post C
of Assistant Director/Assistant Executive Engineer, in Central Water En-
gineering (Group-A) and that he was fully eligible for being considered for
promotion to the next higher grade of Dy. Director/Executive Engineer.
The appellant's case before the Tribunal was that though his name was
considered and he being the only candidate belonging to the Scheduled D
Tribe community his name was included in the panel of selected candidates
and placed at serial No. 26 of the combined select list but by order dated
28.2.1990 only 22 persons were promoted and the appellant was riot
promoted because there were only 22 posts available and therefore persons
at Serial no. 1 to 22 in the approved panel were promoted while according
to the appellant when 22 persons were promoted there should in any case E
be at least one point belonging to the Scheduled Tribe candidates in
accordance with the prescribed roster. The appellant, therefore, ap-
proached the tribunal for the necessary direction.
.r'
6. The respondents contested the appellant's application by stating F
that 78 vacancies were anticipated up to 31.12.1990 out of which 12 were
reserved for Scheduled Castes and 6 for the Scheduled Tribes against
which only the appellant, as the sole officer belonging to the Scheduled
Caste community was found eligible, by the departmental Promotion Com-
mittee in its sitting held on 3.8.. 1990 and 27.8.1990. The respondents'
further stand was that having regard to the directions contained in Office G
Memorandum No. 27/2/71 - E(SET) dated 27.11.1972 issued by the
Department of Personnel, they prepared separate select lists of candidates
belonging to the Scheduled Castes and Scheduled Tribes in addition to the
general list and all the 3 separate select lists were merged into one
combined list in which the name of all the selected officers including those H
626 SUPREME COURT REPORTS (1995) 2 S.C.R.

A belonging to Scheduled Castes and Scheduled Tribes were arranged in the
order of their interse seniority in the feeder cadre viz. Assistant Direc-
tor/Assistant Executive Engineer in which the name of the appellant
figured at S. No. 26. It was stated by the respondents that the number of
the vacancies as were anticipated did not come through and they could
promote only 22 officers and, therefore, the first 22 in the panel of the
B combined list were promoted. The appellant could not be promoted as his
cl)ance for promotion would come only according to his placement in the
approved panel.

7. The tribunal, after considering th~ rival contentions, came to the
C · conclusion that having regard to the promotion policy the promotions have
to be made in accordance with the instructions contained in the Office
M~randum dated 27.11.1972. It took the view that the combined select
list prepared in accordance with the instructions forms the basis for promo-
tion in which the names of all the selected officers, general as well as those
belonging to Scheduled Castes and Scheduled Tribes are arranged in the
D order of their interse seniority. The tribunal also took the view that the
rosters which have been prescribed for reservation are for determining the
number of vacancies to be reserved for Scheduled Castes and Scheduled
Tribes and that the 40 point roster is not for determining the order of
actual appointment or for the purpose of determining seniority. After
E analysing the instructions contained in Office Memorandum dated
27.11.1972 the Tribunal took the view that the respondents committed no
illegality in making promotions of 22 persons by order dated 28.2.1990 and
on that basis, rejected the application made by the appellant against which
this appeal has been preferred.
F
8. Learned counsel for the appellant vehemently urged before us,
that the impugned judgment of the tribunal is against the promotion policy
enunciated by the Central Government for the benefit of the members of
the Scheduled Castes and Scheduled Tribes as well as against the very
object and spirit of the Office Memorandum dated 27.11.1990 and other
G related Government instructions in this behalf. It was submitted that
though 78 vacancies were anticipated up to 31.12.1990 yet accepting that
only 22 posts were available for promotion then also having regard to the
promotion policy and the percentage of reservation allocated to the mem-
bers of the Scheduled Tribes, the appellant could not have been ignored
H and in any event one post out of the 22 posts must have been made
\

P. SHESHADRI '" U.0.1. [FAIZAN UDDIN,J.) 627

available on 28.2.1990 when 22 promotions were made. It was, therefore, A
submitted that the impugned order of the tribunal could not be sustained
either in law or on facts.

9. It may be pointed out that Office Memorandum no. 27.2.71 -E
(SET) dated 27.11.1972 issued by the Department of Personnel, Govern- B
ment of India, relates to the introduction of promotion scheme to the
members belonging to Scheduled Caste and Scheduled Tribe community.
A reading of the said memoranda goes to show that prior to 17.11.1972
there was no reservation for Scheduled Castes and Scheduled Tribes in
appointments made by promotion on the basis of seniority subject to fitness
and it was only by O.M. dated 27.11.1972 that the Government of India C
communicated its policy providing 15 per cent reservation for Scheduled
Castes and 7 1/2 per cent reservation for Scheduled Tribes in promotion
to all classes of posts/service made on the basis of seniority subject to
fitness. This policy was adopted by the Government of India in superses-
sion of its earlier orders contained in Office Memoranda No. 1/12/67- D
ESIT (C) dated 11.7.1968 according to which there was no reservation for
Scheduled Castes and Scheduled Tribes in the appointments made by
promotiQn. The Government, therefore, directed appointing authorities to
maintain a separate 40 point roster to determine the number of reserved
vacancies in a year with a view to implement the aforementioned reserva-
tion policy. In pursuance of the said policy, detailed instructions were E
issued to the authorities concerned to make promotions in accordance with
the directions contained therein with a view that the members belonging
to the Sche~uled Castes and .Scheduled Tribes may· have the benefit of
getting promotion to higher grade/cadre earlier than the empfoyees who
did not belong to the Scheduled Castes and Scheduled Tribes. Clause (i) p
of paragraph 3 of O.M. dated 27.11.1972 provides for preparation of a
separate 40 point roster to determin~ the number of reserved vacancies in
a year which also prescribes the points for reservation for Scheduled Castes
and Scheduled Tribes. Clause (ii) provides that wherever according to the
points in the roster there are any vacancies reserved for Scheduled Castes
and Scheduled Tribes, separate list should be drawn up of the eligible G
Scheduled Castes and Scheduled Tribes officers as the case may be,
arranged in order of their interse seniority in the main list. Clause (iii)
contemplates that the Scheduled Castes and Scheduled Tribes officers
should be adjudged by the. Departmental Promotion Committee separately
in regard to the fitness and clause (iv) of paragraph 3 of O.M. dated H
/

628 SUPREME COURT REPORTS [1995) 2 S.C.R.

A 27.11.1972 reads as under:-

"When the Select List of officers in the general category and those
belonging to Scheduled· Castes and Scheduled Tribes have been
• prepared by the Departmental Promotion Committee these should
be merged into a combined select list in which the names of all
B the selected officers general as. well as those belonging to
Scheduled Castes and Scheduled Tribes are arranged in the order
of their inter-se seniority in the original seniority list of the category
or grade from which the promotion is being made. This combined
select list should thereafter be followed for making promotions in
c vacancies as and when they arise during the year."

10. Government of India, Department of Personnel & Training,
Ministry of Personnel, Public Grievances and Pensions again issued O.M.
No. F.22011/5/86-ESTI/D dated 10.3.1989 providing the procedure to be
D observed by Departmental Promotion Committee. Paragraph 2.3.2 (ii) of
the said O.M. dated 10.3.1989 lays down the method of promotion by
selection and reads as under:-

"In promotion by selection to posts/services from Group 'C' to
Group 'B' within Group 'B' and from Group 'B' to the lowest run
E . in Group 'A', selection against vacancies reserved for SCs ~d STs
will be made only from 'those SCs/STs officers, who are within_ the
normal zone of consideration prescribed vide the Department of
Personnel & A.R. O.M. No. 22011/3n6-Estt.(D) dated 24th
December, 1980. Where adequate number of SCs/STs candidates
F are not available within the normal field of choice, it may be
extended to five times the number of vacancies and the SCs/STs
candidates (and not any other) coming within the extended field
of choice, should also be considered against the vacancies reserved
for them. If candidates from SCs/STs obtain on the basis of merit
with due regard to seniority, on the same basis as others, less
G number of vacancies then the number reserved for them, the
difference should be made up by selecting candidates of these
communities, who are in the zone of consideration, irrespective of
merit and 'bench mark' but who are considered fit for promotion.
Officers belonging to SC/ST selected for promotion against vacan-
H cies reserved for them from within the extended field of choice
\

P.SHESHADRI v. U.0.1.[FAIZANUDDIN,J.] 629

would however be placed en bloc below all the other officers A
selected from within the normal field of choice."

11. A combined reading of the instructions contained in these
memoranda will go to show that in the first instance the number of reserved
vacancies in a year have to be worked out on the basis of 40 point roster B
as envisaged in sub-clause (i) of paragraph 3 of O.M. dated 27.11.1972.
Thereafter separate lists are to be drawn up of the eligible Scheduled
Castes or Scheduled Tribes officers arranged in the order of their inter se
seniority in the main list Clause (iii) of paragraph 3 enjoins a duty on the
Departmental Promotion Committee to adjudge the Scheduled Castes and
Scheduled Tribes officers separately in regard to their fitness. Thereafter C
the select lists of the officers in the general category and those belonging
to the Scheduled Castes and Scheduled Tribes are prepared by the
Departmental Promotion Committee. The same have to be merged into a
combined select list in which the names of all the selected officers, general
as well as those belonging to Scheduled Casts and Scheduled Tribes are D
arranged in the order of their inter se seniority in the original seniority list
of the category/grade from which the promotion is being made and this
combined select list is the basis for making promotions in vacancies as and
when they arise during the year. Further clause (ii) of paragraph 2.3.2 of
O.M. dated 10.3.1989 contemplates that selection against vacancies
reserved for Schedule Castes and Schedule Tribes will be made only from E
those Schedule Caste/Schedule Tribes officer who are within the normal
zone of consideration prescribed by the Department of Personnel and AR.
vide O.M. No. 22011 dated 24th December, 1980. It further contemplates
that where number of Scheduled Caste/Schedule Tribe candidates are not
available within the normal field of choice, it may be extended to Five p
Times the number of vacancies and Schedule Caste/Schedule Tribe can-
didates (and not any other) coming within the extended field of choice,
should also be considered against the vacancies reserved for them. If
candidates from Scheduled Castes and Scheduled Tribes obtained on the
• -I basis of merit with due regard to seniority, on the same basis as others, are
)
less than the number of vacancies reserved for them, the difference should G
be made up by selecting candidates of these communities, who are in the
zone of consideration, irrespective of merit and bench mark but who are
considered for promotion and officers belonging to Scheduled Castes and
Scheduled Tribes selected for promotion against vacancies reserved for
them from within the extended field of choice would however be placed en H
I

630 SUPREME COURT REPORTS [1995) 2 S.C.R.

A block below all the other officers selected from within the normal field of
choice. In view of the aforesaid clear instructions with regard to the
reservation quota for the Scheduled Tribes as 7-1/2 per cent, it is beyond
comprehension to say that not even a single post will go to the member of
the Scheduled Tribe out of the 22 posts which were available for promotion
B to the post of Dy. Director/Executive Engineer on the relevant date i.e. on
the date when 22 officers were promoted ~o that grade. Any other inter-
pretation of the memoranda referred to above will not only frustrate the
scheme but it will render the reservation policy as nugatory and no effect
to the reservation quota can be given.

C 12. The tribunal seems to have been misled by the last sentence
contained in clause (iv) of paragraph 3 in O.M. dated 27.11.1972 which
reads as follows :-

"This combined select list should therefore be followed for making
promotions in vacancies as and when they arise during the year."
D
The aforementioned sentence cannot be read torn out of the context in '
which it has been used. The preceding clauses of the said memoranda
· clearly contemplate that there have to be separate select lists of officers in
. the general category as well as those belonging. to the Scheduled Castes
E and Scheduled Tribes having been prepared by the Departmental Promo-
tion· Committee and then all the three have to be merged to form a
- combined select list. It does not mean that in the case of Scheduled Castes
and Scheduled Tribes the promotions have to be made only in accordance
with the placement of the members of the Scheduled Caste and Scheduled
Tribe in the combined select list. They have to be picked up from the select ""-
F list of officers belonging to Scheduled Castes and Scheduled Tribes
prepared. by the Departmental Promotion committee, according to the
availability of reserved vacancies and their turn in the said lists. This
intention is also spelt out from clause (ii) of para 2.3.2 of O.M. dated 10th
March, 1989 which provides that promotion by selection against vacancies h
reserved for Scheduled Caste and Scheduled Tribe will be made only from (
G those Scheduled Caste/Scheduled Tribe officers who are within the normal
zone of consideration. /'

13. Having regard to these facts and circumstances the appellant
having been selected by the Departmental Promotion Committee and he
H being the only eligible officer belonging to the Scheduled Tribe community
P. SHESHADRI v. U.O.I.[FAIZANUDDIN,J.] 631

should have been promoted to the higher post/grade of Dy. Director/Ex- A
ecutive ~ngineer and the respondents committed a serious error and
illegality in not doing so. Consequently, the appeal succeeds and is hereby
allowed. The impugned order of the tribunal is set aside and the applica-
tion of the appellant filed before the tribunal is allowed. According to the
Counter Affidavit filed in this Court by Shri AK. Barua on behalf of the
B
respondents, the appellant was also promoted as Dy. Director/Executive
Engineer by order dated 7.9.1993 and the appellant had joined.as Deputy
Director/Executive Engineer on 22.9.1993. Since we find that the appellant
was entitled to be promoted on 28.2.1990, it is directed that he will be
deemed to have been promoted with effect from 28.2.1990 with all conse-
quential benefits. The respondents are directed to pay a sum of Rs. 3000 C
as costs of this appeal to the appellant.

G.N. Appeal allowed.

J