Holding

In the absence of a specific provision or policy, Article 16(4A) does not automatically confer consequential seniority; the catch‑up rule applies.

Summary

The petitioners, graduate Assistant Engineers of the general category, challenged the seniority of reserved‑category Junior Engineers who had been promoted to Assistant Divisional Engineer (ADE) under Rule 12 of the Tamil Nadu Highways Engineering Service Rules. The issue was whether Article 16(4A) of the Constitution automatically confers consequential seniority on such accelerated promotees or whether the "catch‑up rule" applies in the absence of a specific state policy. The Court held that Article 16(4A) is merely an enabling provision and does not by itself grant consequential seniority; consequently, the catch‑up rule must be applied unless the State enacts a clear rule providing otherwise. The Supreme Court set aside the Division Bench judgment, allowed the appeals, and directed the Tamil Nadu Government to revise the ADE seniority list applying the catch‑up rule.

Issues considered

Does Article 16(4A) automatically give consequential seniority to reserved‑category employees promoted under a reservation rule?
Is the catch‑up rule applicable in the absence of a specific state provision for consequential seniority?
Do Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules confer consequential seniority on reserved‑category promotees?
Must the State collect data on adequacy of representation before framing a policy on consequential seniority?

Legislation cited

Constitution of Indias. Art.16(4), s. Art.16(4A), s. Art.335
Right to Information Act
Tamil Nadu Engineering Service (Special) Ruless. Rule 12
Tamil Nadu State and Subordinate Service (General) Ruless. Rule 35(aa)

Subjects

reservationpromotionconsequential senioritycatch‑up ruleArticle 16(4A)Tamil Nadu Engineering Service Rulesseniority determinationservice law

Judgment

(2015] 11S.C.R.664

A S. PANNEER SELVAM & ORS.
v.
GOVERNMENT OF TAMIL NADU & ORS.
(Civil Appeal Nos. 6631-6632 of 2015 etc.)
B
AUGUST 27, 2015
[T. S. THAKUR AND R. BANUMATHI, JJ.]
Constitution of India, 1950 -Art. 16(4A) -Applicability
C of - To the consequential seniority in promotional position -
To the reserved category accelerated promotees promoted
on the basis of rules of reservation - In_ absence of a specific
provision or policy decision of the State to that effect- Held:
In the absence of any provision or provision or policy decision
D as regards consequential seniority, Art. 16(4A) of the
Constitution will not be applicable automatically, whereas the
'catch-up rule' will be applicable - The roster-point reserved
category promotees cannot count their seniority in the
promoted category from the date of their promotion and the
E senior general candidates if later reach the promotional level,
will regain their seniority - Rule 12 of Tamil Nadu
Engineering Service Rules (Special Rules) or Rule 35(aa)
of Tamil Nadu State and Subordinate Service Rules (General
Rules) are not applicable to consequential seniority - The
F reserved category candidates in the present case had been
temporarily promoted u/r. 39(a) and r. 10(a)(i) of the General
rules with the condition that their inclusion in the promotional
order was not to confer any right, in the service - state directed
to revise the seniority list applying the catch up rule - Service
G Law - Reservation in promotion - Tamil Nadu Engineering
Service Rules - r. 12 - Tamil Nadu State and Subordinate
Service Rules- rr. 35(aa), 39(a) and 10(a)(i).
Service Law:
H Promotion/Seniority - Catch-up rule - Applicability of
664
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 665
NADU

- Discussed. A
Seniority - Determination of - Held: Determination of
seniority is a vital aspect in the service career of an employee
and his future promotion is dependent on that - Therefore,
such determination must be based on just and fair principles.
8
Allowing the appeals, the Court

HELD: 1. Article 16(4A) of the Constitution is only
an enabling provision which specifically provides that
the concerned State may make any provision for c
providing reservation of appointments or posts in favour
of any_ backward class citizens which is not adequately
represented in the services under the State. Articles 16(4)
and 16(4A) have to be read with Article 335 of the
Constitution which deal with norms of Scheduled Castes D
and Scheduled Tribes to services and posts and lay
down that the claims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into
consideration consistently with the maintenance of
efficiency of administration, in the making of E
appointments to services and posts in connection with
the affairs of the Union or of a State. [Para 24] [685-E-G]

2. In the absence of any specific provision or policy
decision taken by the State Government for F
consequential seniority for reserved category
accelerated promotees, there is no question of automatic
application of Article 16 (4A) of the Constitution. As per
Rule 12 of Tamil Nadu Engineering Service Special
Rules, reserved category Assistant Engineers and the G
reserved category Junior Engineers secured promotion
as Assistant Divisional Engineers much earlier to the
general category Assistant Engineers and Junior
Engineers respectively because of their accelerated
H
666 SUPREME COURT REPORTS [2015) 11 S.C.R.

A promotion following rule of reservation. Rule 12 evidently
does not provide for the consequential seniority for
reserved category promotees at any point of time. The
consequential seniority for such reserved category
promotees can be fixed only ifthere is express provision
B for such reserved category promotees in the State rules.
[Paras 25 and 26] [686-D-H]

3. In terms of Rule 12, reservation is followed only
for promotion of AEs/JEs as Assistant Divisicmal
C Engineers and Rule 12 does not protect the
consequential seniority to ADEs who were promoted
following the rule. The appellants belonging to the
general category are not questioning the accelerated
promotion granted to the Junior Engineers/Assistant
D Engineers by following rule of reservation but are only
seeking fair application of the 'catch up rule' in the
fixation of seniority in the category of ADEs. [Para 27]
[687-C-D]

E 4. In the absence of any rule conferring
consequential seniority in the State of Tamil Nadu 'catch
up rule' is applicable even amongst Junior Engineers
promoted as ADEs following rule of reservation and also
for their inter-se seniority amongst AEs promoted as
F ADEs and JEs promoted as ADEs following rule of
reservation. [Para 31]" [689-D-E]

5. Rule 35 (aa) of Tamil Nadu State and Subordinate
Service (General) Rules is applicable only for normal
G appointments to any service, class, category or grade
and not reserved category promotions. Rule 35 (aa) does
not specifically provide for consequential seniority to the
accelerated promotees who were promoted following the
rule of reservation and Rule 35 (aa) is of no assistance
H to the contesting respondents. [Para 32] [690-D-E]
S~ PANNEER SELVAM v. GOVERNMENT OF TAMIL 667
NADU

6. The private respondents in the present case A
have been promoted temporarily under Rule 39 (a) and
Rule 1O (a) (i) of the General Rules with the condition
that their inclusion in the promotional order shall not
confer on them any right whatsoever in the service.
Determination of seniority is a vital aspect in the service B·
career of an employee and his future promotion is
dependent on this. Therefore, determination of seniority
must be based on some principles which are just and
fair. In the absence of any policy decision taken or rules
framed by the State of Tami Nadu regarding Tamil Nadu C
Highways Engineering Service, accelerated promotion
given to the respondents following rule of reservation
in terms of Rule 12 will not give them consequential
accelerated seniority. [Para 33] [692-C-F]
D
7. The respondents' submission regarding
inadequacy of representation of Scheduled Castes/
Scheduled Tribes in the Tamil Nadu Highways
Engineering Service by itself is not sufficient to uphold
the inadequacy of representation of SCs/STs in the said· E
service. Even after Eighty-fifth Amendment of the
Constitution, the State is duty bound to collect data so
as to assess the adequacy of representation of the
Scheduled Caste candidates in the service and based F
· on the same, the State should frame a policy/rules for
consequential seniority. No material is placed on record
that the State of Tamil Nadu has ever undertaken such
exercise of collecting data of adequacy of representation
of the SC/ST candidates in the Tamil Nadu Highways G
Engineering Service. [Para 31] [689-8-D]

8. Both the Assistant Engineers in the Tamil Nadu
Engineering Service and the Junior Engineers in the
Tamil Na du Engineering Subordinate Service are feeder · H
668 SUPREME COURT REPORTS [2015] 11 S.C.R.

A categories for filling up higher post of the Assistant
Divisional Engineer in the ratio of 3:1 between them.
Although, Assistant Engineers and Junior Engineers are
presently two distinct categories, prior to 1993, both
Assistant Engineers and Junior Engineers were in one
B category of service-Tamil Nadu Highways Engineering
Subordinate Service. Only after G.O.Ms.No.807, Public
Works (HK) Department dated 24.05.1993, the post of
Assistant Engineer was raised to the level gazetted
status and they were brought in to State Service/Tamil
C Nadu Highways Engineering Service. For promotion,
even though two separate seniority lists are prepared
for each category, they are actually of the same cadre
and therefore, it cannot be said that if Junior Engineers
are promoted as ADEs following rule of reservation
0
applying Rule 12, it does not affect the services of the
Assistant Engineers. [Para 34] [692-A; 693-A-D]

9. In the absence of any provision for consequential
seniority in the rules, the 'catch up rule' will be applicable
E and the roster-point reserved category promotees
cannot count their seniority in the promoted category
from the date of thei.r promotion and the senior general
candidates if later reach the promotional level, general
F candidates will regain their seniority. The Division Bench
proceeded on an erroneous footing that Article 16 (4A)
of the Constitution of India automatically gives the
consequential seniority in addition to accelerated
promotion to the roster-point promotees. State
G Government-respondent Nos. 1 and 2 are directed to
revise the seniority list of Assistant Divisional Engineers
applying the 'catch up rule'. [Paras 35 and 36] [693-E-F,
G-H]
Ajit Singh And Ors. (II) vs. State of Punjab And Ors. ·
H (1999) 1 sec 209: 1999 (2) Suppl. SCR 521;
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 669
NADU

M. Nagaraj And Ors. vs. Union of India And Ors. A
(2006) 8 sec 212: 2006 (7) Suppl. SCR 336 -
followed.
Union of India And Ors. vs. Virpal Singh Chauhan
And Ors. 1995 (4) Suppl. SCR 158 : (1995) 6
SCC 684; Ajit Singh Januja & Ors. vs. State of B
Punjab & Ors. 1996 (3) SCR 125: (1996) 2 SCC
715; R. K. Sabharwal And Ors. vs. State of Punjab
And Ors. 1995 (2) SCR 35 : (1995) 2 SCC 745;
Ajit Singh And Ors. (II) vs. State of Punjab And
Ors. (1999) 7 SCC 209:1999 (2) Suppl. SCR 521
c
; M. Nagaraj And Ors. vs. Union of India And Ors.
(2006) 8 sec 212: 2006 (7) Suppl. scR 336;
Shiv Nath Prasad vs. Saran Pal Jeet Singh Tulsi
And Ors. (2008) 3 SCC 80: 2008 (1) SCR 530; D
Chairman And Managing Director; Central Bank
of India And Ors. vs. Central Bank of India SC/ST
· Employees Welfare Association And Ors., 2015
(1) SCALE 169 - relied on.
Indra Sawhney And Ors: vs. Union of India And E
Ors. (1992) Supp. 3 SCC 217:1992 ( 2) Suppl.
SCR 454; Union of India And Ors. vs. Virpal
Singh Chauhan And Ors. (1995) 6 SCC 684: 1995
( 4 ) Suppl. SCR 158; Ajit Singh Januja & Ors.
vs. State of Punjab & Ors. (1996) 2 SCC F
715: 1996 (3) SCR 125; R. K. Sabharwal And
Ors. vs. State of Punjab And Ors. (1995) 2 SCC
745: 1995 (2) SCR 35 ; Jagdish Lal And Ors. vs.
State of Haryana And Ors. (1997) 6 SCC 538;
G
Uttar Pradesh Power Corporation Limited vs.
Rajesh Kumar And Ors. (2012) 7 SCC 1: 2012
(4) SCR 118 - referred to.
Case Law Reference
1995 (4) Suppl. SC.R 158 relied on. Para 6, 12 H
670 SUPREME COURT REPORTS [2015] 11 S.C.R.

A 1996 (3) SCR 125 relied on. Para 6, 14

1995 (2) SCR 35 relied on. Para 6, 14

1999 (2) Suppl. SCR 521 relied on. Para 6
B 2006 (7) Suppl. SCR 336 relied on. Para 6

992 ( 2) Suppl. SCR 454 referred to. Para 9

1995 (4) Suppl. SCR 158 referred to. Para 12
c 1996 (3) SCR 125 referred to. Para 14

1995 (2) _SCR 35 referred to. Para 14

(1997) 6 sec 538 referred to. Para 15
D
1999 (2) Suppl. SCR 521 followed. Para 16

2006 (7) Suppl. SC~ 336 followed. Para 18

2008 (1) SCR 530 relied on. Para 19
E
2015 (1) SCALE 169 relied on. Para 19

2012 (4) SCR 118 referred to. Para 20

CIVILAPPELLATE JURISDICTION: CIVILAPPEAL NO.
F 6631-6632 of 2015.

From the Judgment and Order dated 25.11.2011 of the High
Court of Judicature at Madras in Writ Appeal Nos. 113 and
207 of2009.
G
WITH

C.A. Nos. 6633 and 6634-6636 of 2015

Dr. Rajiv Dhawan, R. Thuragarajan, Kiran Suri, N.
H Subramaniyan, T. Anamika, B. Balaji, V. Balachandran,
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 671
NADU [R. BANUMATHI, J.]

Rakesh Sharma, R. Shase, S. J. Amith, Dr. Vipin Gupta for A
the appearing parties.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted in all the. special
8
·leave petitions.

2. Common issues involved in this bunch of appeals
are:-(i) In the absence of policy decision taken by the State/
rules framed pursuant to the enabling provision of Article 16
(4A) of the Constitution of India whether a reserved category C
candidate promoted on the basis of reservation earlier than
his senior general category candidate in the feeder category
can claim consequential seniority in the promotional post; (ii)
In the absence of policy decision taken by the State with regard D
to Tamil Nadu H~hways Engineering Service Rules, whether
Division Benchwas right in holding thatArticle 16(4A) of the
Constitution of India by itself would give consequential seniority.
in addition to accelerated promotion to the roster-point
promotees. E

3. These appeals are filed assailing the common
judgment dated_ 25.11.2011 passed by the High Court of
Judicature at Mad_ras in Writ Appeals No. 113, 207 and 208 of
2009 whereby the High Court while setting aside the order F
passed by the learned Single Judge observed that the object
of the amending Article 16 (4A) of the Constitution of India is
to give consequential seniority in addition to accelerated
promotion to roster-point promotees -thereby holding that
'catch-up rule' is not applicable among the Assistant Divisional G
Engineers appointed from the post of Junior Engineers
fo.llowing the rule of reservation. For convenience, parties are
referred to as per their array in the appeals arising out of SLP
(Civil) Nos. 8366-8367 of2012.
H
672 SUPREME COURT REPORTS (2015] 11 S.C.R.

A 4. The appellants are graduate Assistant Engineers and
the contesting private respondents are Diploma holder Junior
Engineers are entangled in several rounds of litigation for about
two decades over the nagging question of 'catch-up rule' and
the consequential seniority in the promotional post of Assistant
B Divisional Engineers. Before adverting to the legal issues, it
would be appropriate to refer to the background facts.
Engineers of Tamil Nadu Highways Department viz., Chief
Engineers, Superintending Engineers, Divisional Engineers
and Assistant Divisional Engineers are governed by Tamil Nadu
C Highways Engineering Service Rules. Assistant Engineers,
Junior Engineers, Supervisors and further lower categories
are governed by Tamil Nadu Highways Engineering
Subordinate Service Rules. The categories viz., Assistant
D Engineers and Junior Engineers were feeder categories to
the category of Assistant Divisional Engineer and the first three
vacancies to be filled by Assistant Engineers and the fourth.
vacancy to be filled by recruitment by transfer by Junior
Engineer of Tamil Nadu Highways Engineering Subordinate
E Service. Rule 12 of Special Rules to Tamil Nadu Highways
Engineering Service prescribes application of rule of
reservation for the appointment of Assistant Divisional
Engineers by direct recruitment and recruitment by transfer.
Accordingly prior to 24.05.1993, the Assistant Engineers and .
F Junior Engineers were appointed as Assistant Divisional
Engineers by recruitment by transfer after following the rule of
reservation.

5. List of Assistant Engineers/Junior Engineers as pn
G 01.01.1993 was published vide Chief Engineer Memo No. 960/
N4/91dated18.04.1994 not following the 'catch up rule'. One
Assistant Divisional Engineer (ADE) D. Rajendran who
belonged to general category, who was overlooked for
promotion by Assistant Engineers who belonged to rese~rved
H category filed O.A. No.2186/1996 before the Tamil Nadu
S. PAN NEER SELVAM v. GOVERNMENT OF TAMIL 673
NADU [R. BANUMATHI, J.] .
AdministrativeTribunal challenging the consequential seniority A
given to the reserved category Assistant Divisional Engineers
and prayed to revise the seniority in the higher category as
obtained in the lower category. Relying upoh Ajit Singh Januja
& Ors. vs. State of Punjab & Ors., (1996) 2 SCC 715, vide
order dated 29.11.1996, the tribunal allowed the application B
observing that even though the respondents therein were
promoted as ADEs earlier to D. Rajendran, they cannot be
placed above the applicant by virtue of accelerated promotion
and giving them the consequential seniority. Aggrieved by the
order in O.A. 2186/1996, Special Leave Petition (Civil) No. c
24455/1996 was filed by the AD Es of the reserved category
which was dismissed by this Court vide order dated
18 12.1996.

6. On 29.04.2004, seniority'list of Assistant Divisional D
Engineers was published by applying 'catch-up rule' among
AD Es appointed from Assistant Engineers and consequential
seniority was not given to SC/ST Assistant Divisional
'
Engineers appointed from Assistant Engineers. But the 'catch-
up rule' was not applied among the ADEs appointed from E
Junior Engineers and th.ereby giving benefit of consequential
seniority to SC/ST Assistant Divisional Engineers appointed
from Junior Engineers in addition to accelerated promotion.
Aggrieved by the seniority list dated 29.04.2004 and the
F
subsequent seniority list fit for further promotion to the post of
Divisional Engineer dated 19.08.2005, the Assistant •
Engineers who were selected by the Tamil Nadu Public Service
Commission under the junior category filed the writ petition in
the High Court. Contention advanced by the appellants/writ G
petitioners was that the promotion given to Junior Engineers
as ADEs was based on rule of reservation and in the
promotional post it would not reverse the seniority of the seniors
in the feeder category who gained promotions subsequently.
Relying on the decisions of this Court reported in Union of H

f
674 SUPREME COURT REPORTS (2015] 11 S.C.R.

A India And Ors. vs. Virpal Singh Chauhan And Ors., (1995) 6
SCC 684; Ajit Singh Januja And Ors. vs. State of Punjab
And Ors., (1996) 2 SCC 715; R.K. Sabharwal And Ors. vs.
State of Punjab And Ors., (1995) 2 SCC 745; Ajit Singh
And Ors. (II) vs. State of Punjab And Ors., (1999) 7 SCC 209
B and M. Nagaraj And Ors. vs. Union of India And Ors., (2006)
8 SCC 212, learned Single Judge of the High Court held that
the State failed to follow the dictum laid down by the Supreme
Court in the above judgments and erred in issuing the seniority
list of Assistant Divisional Engineers, Tamil Nadu Highways
C Engineering Service by ignoring the principle of 'catch-up rule'
vis-a-vis 'inter-se seniority' of the seniors who have gained
promotion subsequently. The Single Judge thus allowed the
batch of writ petitions by setting aside the seniority list dated
D 29.04.2004 and directed the authorities to prepare the revised
seniority list of the Assistant Divisional Engineers.

7. Aggrieved, the respondents-promotees promoted as
ADEs from Junior Engineers in the reserved category
preferred writ appeals and the Division Bench by the impugned
E judgment while setting aside the order passed by the Single
Judge held that the object of the amending Article 16 (4A) of
the Constitution of India is to give accelerated promotion to
roster-point promotees in addition to accelerated promotion
F and thereby held that the 'catch-up rule' is not applicable among
the Assistant Divisional Engineers appointed from the post of
Junior Engineers by recruitment by transfer following
reservation rules. These appeals assail the correctness of the
above judgment.
G 8. Having heard both the parties, we have given our
thoughtful consideration to the rival contentions in the light of
the principles enunciated by this Court in a catena of decisions.

9. The concept of 'catch-up rule' and 'consequential
H seniority' is judicially evolved concepts to control the extent of
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 675
NADU [R. BANUMATHI, J.]

reservation. The question of reservation and the associated A
promotion and the consequential seniority have been the
matter of discussion in various decisions of this Court. The
matter regarding reservation in promotions was considered
by a nine Judge Bench of this Court in Indra Sawhney And
Ors. vs. Union of India And Ors., (1992) Supp. 3 SCC 217 B
.and this Court held that the reservation under Article 16(4) of
the Constitution of India is confined only to initial appointment
and cannot extend to reservation in the matter of promotion.
In order to nullify the effect of the aforesaid dicta, there was an
amendment to Article 16 by Constitution (Seventy-seventh c
Amendment) Act with effect from 17.06.1995. Vide this
Amendment, after Clause (4), Clause (4A) was inserted in
Article 16 of the Constitution.

· 10. Clause (4) and Clause (4A) of Article 16 of the D
1
Co'nstitution of India read as under:-

"Clause 4. Nothing in this article shall prevent the State
· from making any provision for the reservation of
appointments or posts in favour of any backward class E
·of citizens which, in the opinion of the State, is not
adequately represented in the services under the State ..
Clause 4A. Nothing in this article shall prevent the State
·from making any provision for reservation in matters of
F
. promotion to any class or classes of posts in the services
under the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the .
State."
G
11. Article 16 (4) of th~ Constitution of India enables the
State to make a provision for reservation for appointments or
posts in favour of any backward class of citizens which in its
opinion is not adequately represented in the services under
the State. The constitutional position on the insertion of Clause
676 SUPREME COURT REPORTS [2015] 11 S.C.R.

A (4A) in Article 16 is that the State is now empowered to make
provision for reservation in the matter of promotions as well, in
favour of SCs and STs wherever the State is of the opinion
that the SCs and STs are not adequately represented in the
service under the State. Clause (4A) of Article ·16 of the
B Constitution is only an enabling provision which empowers the
State to make any provision for reservation for SC and ST
candidates in the matter of promotion as well.

12. In Union of India And Ors. vs. Virpal Singh Chauhan
C And Ors., (1995) 6 SCC 684, a question had arisen as to
whether a person in SC or ST category who gets accelerated
promotion because of reservation would also get
consequential seniority in the higher post if he gets that
promotion earlier than his senior in general category and this
D Court held that such an employee belonging to SC/ST category
on promotion would not get consequential seniority and his
seniority will be governed by the panel position. It was held as
under:-

E "24.... In short, it is open to the State, if it is so advised,
to say that while the rule of reservation shall be applied
and the roster followed in the matter of promotions to or
within a particular service, class or category, the
candidate promoted earlier by virtue of rule of reservation/
F roster shall not be entitled to seniority over his senior in
the feeder category and that as and when a general
candidate who was senior to him in the feeder category
is promoted, such general candidate will regain his
seniority over the reserved candidate notwithstanding that
G he is promoted subsequent to the reserved candidate.
There is no unconstitutionality involved in this. It is
permissible for the State to so provide ... "

13. The decision in Virpal Singh Chauhan case led to
H another Constituti6n Amendment and the Parliament enacted
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 677
NADU [R. BANUMATHI, J.]

Constitution (Eighty-fifth Amendment) Act 2001 whereby A
Clause (4A) of Article 16 was further amended enabling the
State to make a provision for reservation in matters of
promotion with consequential seniority. Amended Clause (4A)
reads as under:-
B
"4A. Nothing in this article shall prevent the State from
making any provision for reservation in matters of
promotion with consequential seniority to any class or
classes of posts in the services under the State in favour
of the Scheduled Castes and the Scheduled Tribes c
which, in the opinion of the State, are not adequately
represented in the services under the State."

Eighty-fifth Amendment was made effective
retrospectively from 17.06.1995, that is, the date of coming
0
into force the original Clause (4A) of Article 16 of the
Constitution of India.

14. In Ajit Singh Januja And Ors. vs. State of Punjab
And Ors., (1996) 2 SCC 715, by placing reliance on the
principle laid down in Indra Sawhney case and also the E
Constitution Bench judgment in R.K. Sabharwal And Ors. vs.
State of Punjab And Ors., reported in (1995) 2 SCC 745, a
three Judge Bench accepted the principle of 'catch-up rule'
· as laid down in Virpal Singh Chauhan case observing that F
the balance must be maintained in such a manner that there
was no reverse discrimination against the general category
candidates and that any rule/circular or order which gives·
seniority to the reserved category candidates promoted at the
roster-point would be violative of Articles 14 and 16 of the G
Constitution of India.

15. In Jagdish Lal And Ors. vs. State of Haryana And
Ors., (1997) 6 SCC 538, another three Judge Bench opined
that seniority granted to the Scheduled Caste and Scheduled H
678 SUPREME COURT REPORTS [2015] 11 S.C.R.

A Tribe candidates over a general category candidate due to
his 2ccelerated promotion does not in all events got wiped out
on promotion of general category candidate.

16. In Ajit Singh And Ors.(//) vs. State of Punjab And
B Ors., (1999) 7 SCC 209, the Constitution Bench was concerned
with the issue whether the decisions in Virpal Singh Chauhan
and Ajit Singh Januja case which were earlier decided to the
effect upholding the 'catch-up rule', that is, the seniority of
general category candidates is to be confirmed or whether
C the later deviation made in Jagdish Lal case against the
general category candidates. In Ajit Singh (II) case, inter-alia,
the following points arose for consideration:-

(i) Can the roster-point promotees count their seniority
D in the promoted category from the date of their continuous
officiation vis-a-vis general candidates, who were senior
to them in the lower category and who were later
promoted to the same level?
(ii) Have Virpal ((1995) 6 SCC 684] and Ajit Singh
E ((1996) 2 sec 715] been correctly decided and has
Jagdish Lal [(1997) 6 SCC 538] been correctly decided?
(iii) . Whether the "catch-up" principles are tenable?

17. The Constitution Bench held that Articles 16(4) and
F (4A) did not confer any fundamental right to reservation and
that they are only enabling provisions. Overruling the judgment
in Jagdish Lal case and observing that rights of the reserved
classes must be balanced against the interests of other
G segments of society in para (77), this Court held as under:-

"77. We, therefore, hold that the roster-point promotees
(reserved category) cannot count their seniority in the
promoted category from the date of their continuous
officiation in the promoted post, - vis-a-vis the general
H candidates who were senior to them in the lower category
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 679
NADU [R. BANUMATHI, J.]

and who were later promoted. On the other hand, the A
senior general candidate at the lower level, if he reaches
the promotional level later but before the further promotion
of the reserved candidate - he will have to be treated
as senior, at the promotional level, to the reserved
candidate even if the reserved candidate was earlier B
promoted to that level. We shall explain this further under
Point 3. We also hold that Virpal, (1995) 6 SCC 684
and Ajit Singh, (1996) 2 SCC 715 have been correctly
. decided and that Jagdish Lal, (1997) 6 SCC 538 is not
correctly decided. Points 1 and 2 are decided C
accordingly."

18. Constitutional validity of Clauses (4A) and (4B) of
Article 16 of the Constitution was challenged in M. Nagaraj
And Ors. vs. Union oflndiaAnd Ors, (2006) 8 SCC 212. The. D
question that came up for consideration was whether by virtue
of impugned constitutional amendments, the power of
Parliament was so enlarged as to obliterate any or all of the
constitutional limitations and requirements upholding the
validity of the said Articles with certain riders. On the concept E
of 'catch-up rule' and consequential seniority, this Court held
as under:-

'79. Reading the above judgments, we are of the view
that the concept of "catch-up" rule anci "consequential F
seniority" are judicially evolved concepts to control the
extent of reservation. The source of these concepts is in
service jurisprudence. These concepts cannot be
elevated to the status of an axiom like secularism,
constitutional sovereignty, etc. It cannot be said that by G
insertion of the concept of "consequential seniority" the
structure of Article 16(1) stands destroyed or abrogated.
It cannot be said that "equality code" under Articles 14,
15 and 16 is violated by deletion of the "catch-up" rule.
These concepts are based on practices. However, such. H
680 SUPREME COURT REPORTS (2015) 11 S.C.R.

A practices cannot be elevated to the status of a
constitutional principle so as to be beyond the amending
power of Parliament. Principles of service jurisprudence
are different from constitutional limitations. Therefore, in
our view neither the "catch-up" rule nor the concept of
B "consequential seniority" is implicit in clauses (1) and (4)
of Article 16 as correctly held in Virpal Singh Chauhan,
(1995) 6 sec 684."

19. In Nagaraj case Court further considered two
c questions viz.:- (1) Whether there is any upper-limit beyond
which reservation is not permissible? (2) Whether there is any
limit to which seats can be reserved in a particular year; in
other words, the issue is whether the percentage limit applies
only on the total number of posts in the cadre or to the
D percentage of posts advertised every year as well? Answering
the said questions in paras (121) and (123), this Court held as
·under:-

"121. The impugned constitutional amendments by which
E Articles 16(4-A) and 16(4-B) have been inserted flow from
Article 16(4). They do not alter the structure of Article
16(4). They retain the controlling factors or the compelling
reasons, namely, backwardness and inadequacy of
representation which enables the States to provide for
F reservation keeping in mind the overall efficiency ofth1e
State administration under Article 335. These impugned ·
amendments are confined only to SCs and STs. They do
not obliterate any of the constitutional requirements,
namely, ceiling limit of 50% (quantitative limitation), the
G concept of creamy layer (qualitative exclusion), the sub-
classification between OBCs on one hand and SCs and
STs on the other hand as held in Indra Sawhney, 1992
Suppl. (3) SCC 217, the concept of post-based roster
with inbuilt concept of replacement as held in R.K.
H Sabharwal, (1995) 2 SCC 745.
S. PAN NEER SELVAM v. GOVERNMENT OF TAMIL 681
NADU [R. BANUMATHI, J.]

123. However, in this case, as stated above, the main A
issue concerns the "extent of reservation". In this regard
the State concerned will have to show in each case the
existence of the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency before making provision for B
reservation. As stated above, the impugned provision is
an enabling provision. The State is not bound to make
reservation for SCs/STs in matters of promotions.
However, if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable C
data showing backwardness of the class and inadequacy
of representation of that class in public employment in
addition to compliance with Article 335. It is made clear
that even if the State has compelling reasons, as stated·
0
above, the State will have to see that its reservation
provision does not lead to excessiveness so as to breach
the ceiling limit of 50% or obliterate the creamy layer or
extend the reservation indefinitely."

The Constitution Bench judgment in Nagaraj case (supra) E
was subsequently followed in Shiv Nath Prasad vs. Saran Pal
Jeet Singh Tulsi And Ors., (2008) 3 SCC 80 and Chairman
And Managing Director, Central Bank of India And Ors. vs.
Central Bank of lnl!ia SC/ST Employees Welfare
Association And Ors., 2015 (1) SCALE 169. F

20. While considering the validity of Section 3(7) of Uttar
Pradesh Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1994,
and Rule SA of U .P. Government Servants Seniority Rules, 1991 G
which provided for consequential seniority in promotions given
to SCs/STs by virtue of rule of reservation/roster and holding
that Section 3(7) of the 1994Act and Rule SA of 1991 Rules
are ultra vires as they run counter to the dictum in M. Nagaraj's
case in Uttar Pradesh Power Corporation Limited vs. Rajesh H
682 SUPREME COURT REPORTS [2015) 11 S.C.R.

A Kumar And Ors., (2012) 7SCC1, in paragraph (81), this Court
summarized the principles as under:

"(i) Vesting of the power by an enabling provision may
be constitutionally valid and yet "exercise of power" by
B the State in a given case may be arbitrary, particularly, if
the State fails to identify and measure the backwardness
and inadequacy keeping in mind the efficiency of service
as required under Article 335.
(ii) Article 16(4) which protects the interests of certain
c sections of the society has to be balanced against Article
16(1) which protects the interests of every citizen of the
entire society. They should be harmonized because they
are restatements of the principle of equality under Article
14.
D
(iii) Each post gets marked for the particular category of
candidates to be appointed against it and any
subsequent vacancy has to be filled by that category
candidate.
E (iv) The appropriate Government has to apply the cadre
strength as a unit in the operation of the roster in order to
ascertain whether a given class/group is adequateily
represented in the service. The cadre strength as a unit
also ensures that the upper ceiling limit of 50% is not
F
violated. Further, roster has to be post-specific and not
vacancy based.
(v) The State has to form its opinion on the quantifiable
data regarding adequacy of representation. Clause (4-
G A) of Article 16 is an enabling provision. It gives freedom
to the State to provide for reservation in matters of
promotion. Clause (4-A) of Article 16 applies only to SCs
and STs. The said clause is carved out of Article 16(4-
A). Therefore, clause (4-A) will be governed by the two
H compelling reasons-"backwardness" and "inadequacy of
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 683
NADU [R. BANUMATHI, J.]

representation". as mentioned in Article 16(4). If the said A
two reasons do not exist, then the enabling provision
cannot be enforced.
(vi) If the ceiling limit on the carry over of unfilled vacancies
is removed, the other alternative time factor comes in
8
and in that event, the timescale has to be imposed in the
interest of efficiency in administration as mandated by
Article 335. If the timescale is not kept, then posts will.
continue to remain vacant for years which would be
detrimental to the administration. Therefore, in each case, c
the appropriate Government will now have to introduce
the duration depending upon the fact situation.
(vii) If the appropriate Government enacts a law providing
for reservation without keeping in mind the parameters
in Article 16(4) and Article 335, then this Court will certainly D
set aside and strike down such legislation.
(viii) The constitutional limitation under Article 335 is
relaxed and not obliterated. As stated above, be it
reservation or evaluation, excessiveness in either would E
result in violation of the constitutional mandate. This ·
exercise, however, will depend on the facts of each case.
(ix) The concepts of efficiency, backwardness and
inadequacy of representation are required to be
identified and measured. That exercise depends on the F
availability of data. That exercise depends on numerous
factors. It is for this reason that the enabling provisions
are required to be made because each competing claim
seeks to achieve certain goals. How best one should G
optimize these conflicting claims can only be done by
the administration in the context of local prevailing
conditions in public employment.
(x)Article 16(4), therefore, creates a field which enables
a State to provide for reservation provided there exists H
684 SUPREME COURT REPORTS [2015] 11 S.C.R

A backwardness of a class and i.nadequacy of
representation in employment. These are compelling
reasons. They do not exist in Article 16(1). It is only when
these reasons are satisfied that a State gets the power
to provide for reservation in the matter of employment."
B
21. In the light of the above, we shall consider the factual
matrix and the rival contentions urged and the purport of Rule
12 of Tamil Nadu Highways Engineering Service Rules.

C 22. Dr. Rajiv Dhawan, learned Senior Counsel for the
appellants and Ms. Kiran Suri, learned senior counsel
appearing for the similarly placed respondents submitted that
while it is well-settled law followed by this Court in a catena of
cases M. Nagaraj And Ors. Vs. Union of India & Ors., (2006)
D 8 SCC 212 that Article 16 (4A) is only an enabling provision
and does not automatically confer right on the reserved
categories and when no policy decision was taken by the State,
Article 16 (4A) does not per se applicable to Tamil Nadu
Highways Engineering Service conferring consequential
E seniority to the Junior Engineers who obtained accelerated
promotion by following rule of reservation. It was further
submitted that post of Assistant Engineers to be promoted as
ADEs constitute more than 75% of the cadre strength and by
not applying the 'catch up rule' among the Assistant Divisional
F Engineers promoted from Junior Engineers by following rule
of reservation would result in patent discrimination creating
disharmony amongst the padre. Onbehalf of the appellants, it
was urged that the implementation of the impugned judgment
of the Division Bench of the High Court would result in
G conferring seniority to a less qualified and less experienced
Assistant Divisional Engineer appointed from Junior Engineer
belonging to SC/ST category and who stand on a higher footing
both on education and experience than the Assistant Divisional
Engineers belonging to general category would offend the rule
H of equality.
S. PAN NEER SELVAM v. GOVERNMENT OF TAMIL 685
NADU [R. BANUMATHI, J.]

23. Per contra, learned Senior Counsel Mr. R. A
Thiagarajan contended that there is no common list of seniority
of the appellants who are the direct recruitAssistant Engineers
and the respondents who are in the cadre of Junior Engineers
and, therefore, the services of the appellants and the
respondents cannot be compared and the 'catch up rule' is B
not applicable. The learned Senior Counsel further contended
that promotion given to the respondents were not accelerated
promotion but promotion on account of rule of reservation
following Rule 12 of Tamil Nadu Highways Engineering Service
Rules. The respondents contended that Article 16 (4A) of the C
Constitution has been added to protect the consequential
seniority arising out of accelerated promotions and' when such
amendment is held to be valid and not ultra vires the
Constitution by this Court in M. Nagaraj case (supra), the
0
Single Judge ought not to have allowed the writ petitions and
the Division Bench rightly set aside the order of the Single
Judge.

24. Article 16(4A) of the Constitution is only an enabling
provision which specifically provides that the concerned State E
may make any provision for providing reservation of
appointments or posts in favour of any backward class citizens
which is not adequately represented in the services under the
State. Articles 16(4) and 16(4A) have to be read with Article F
335 of the Constitution which deal with norms of Scheduled
Castes and Scheduled Tribes to services and posts and lay
down that the claims of the members of the Scheduled Castes
and the Scheduled Tribes snail be taken into consideration
consistently with the maintenance of efficiency of G
administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State.
In the absence of any policy decision taken by·the State of
Tamil Nadu, Eighty-fifth Amendment per se will not protect the
consequential seniority granted to the respondents who were H
686 SUPREME COURT REPORTS .~015] 11 S.C.R.

A promoted to the post of Assistant Divisional Engineers following
the rule of reservation.

25. The respondents placed heavy reliance upon Rule
12 of the Special Rules Tamil Nadu Engineering Service and
s contended that their consequential seniority is protected in
terms bf Rule 12 and under Article 16 (4A) of the Constitution
of India. Rule 12 reads as under:-

"Rule 12: Reservation of appointments: The rule of
reservation of appointments (General Rule 22) shall apply
c to the appointment of Assistant Divisional Engineers by
direct recruitment and recruitment by transfer separately
and the appointment of Assistant Engineers by direct
recruitment."
D As per Rule 12, reserved category Assistant Engineers
and the reserved category Junior Engineers secured
promotion as Assistant Divisional Engineers much earlier to
t11e general category Assistant Engir~eers and Junior Engineers
respectively because of their accelerated promotion following
E rule of reservation.

26. The true legislative intent under Article 16 (4A) of the
Constitution is to enable the State to make provision or frame
rules giving consequential seniority for the accelerated
F promotion gained based on the rule of reservation. Rule 12
evidently does not provide for the consequential seniority for
reserved category promotees at any point of time. The
consequential seniority for such reserved category promotees
can be fixed only if there is express provision for such reserved
G category promotees in the State rules. Int~ absence of any
specific provision or policy decision taken by the State
Government for consequential seniority for reserved category
accelerated promotees, there is no question of a4tomatic
H application of Article 16 (4A) of the Constitution.
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 687
NADU [R. BANUMATHI, J.]

27. Respondents contended that in about eight A
departments of the State, rule of reservation is followed and
one amorig them is Tamil Nadu Highways Engineering Service
and in terms of Rule 12 practice of following rule of reservation
in promotion is in existence for more than sixty years and
therefore the Division Bench rightly extended the protection B
under Article 16(4A) to accelerated promotees. We are not
impressed with the above submission. In terms of Rule 12,
reservation is followed only for promotion of AEs/JEs as
Assistant Divisional Engineers and Rule 12 does.not protect
the consequential seniority to ADEs who were promoted C
following the rule. The appellants belonging to the genera!
category are not questioning the accelerated promotion
granted to the Junior Engineers/Assistant Engineers by
following rule of reservation but are only seeking fair application D
of the 'catch up rule' in the fixation of seniority in the category
of ADEs.

28. Protection of the consequential seniority conferred
on the Assistant Engineers appointed as Assistant Divisional
Engineers following rule of reservation during the year 1994 E
was held to be unconstitutional in the earlier round of litigation
in Original Application No.2186/1996 dated 29 .11.1996 before
the Tamil Nadu Administrative Tribunal and the same was
confirmed by this. Court in Special Leave Petition (Civil) F
No.24455/1996 titled Tr. J. Sabapathy And Ors. vs. D. ·
Rajendran And Ors: decided on 18.12.1996. Pursuant to the
same seniority of the Assistant Engineers promoted asADEs
following rule of reservation had been lowered following 'catch
up rule'. G

29. Now let us consider the crux of the dispute. While
publishing the impugned seniority list dated 29.04.2004, the
'catch up rule' was applied among the Assistant Divisional
Engineers appointed from Assistant Engineers and
H
688 SUPREME COURT REPORTS [2015] 11 S.C.R.

A consequential seniority was not given to SC/ST Assistant
Divisional Engineers appointed from Assistant Engineers; but
the 'catch up ru/e'was not applied to the Assistant Divisional
Engineers promoted from Junior Engineers and thus
consequential seniority was given to th'e SC/ST Assistant
B Divisional Engineers-accelerated promotees. According to
the State, 'catch-up ru/e'was applied to the Assistant Divisional
Engineers promoted from Assistant Engineers, since, Assistant
Engineers were recruited by Tamil Nadu Public Service
Commission and at the time of their initial recruitment as
C Assistant Engineers, rule of reservation was strictly followed
by Tamil Nadu Public Service Commission. In the counter
affidavit filed before the High Court, the State has taken the
stand that the 'catch up rule' was not applied in the case of
D JEs promoted as AD Es or regarding their inter se seniority of
Assistant Engineers and the Junior Engineers since rule of
reservation was not followed at the time of their appointment
as Junior Engineers.
30. Mr. Thiagarajan, learned Senior Counsel appearing
E for the private respondents submitted that under the Right to
Information Act, information was sought for onbehalf of
respondent U. Palaniappan and Government furnished the
Government Orders for temporary panel of Junior Engineers
for promotion as Assistant Divisional Engineers and the said
F · Government Orders furnished would clearly show that there is
inadequate representation of Scheduled Caste candidates in
various category of Tamil Nadu Highways Engineering Service.
It was further submitted that there are only two persons
belonging to Scheduled Caste community promoted from the
G rank of Junior Engineer after 17.06.1995 to the higher post of
Assistant Divisional Engineer and Divisional Engineer and of
these two persons one has been promoted to the post of
Superintending Engineer and no other person is available in
H the entire department and the inadequacy of representation
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 689
NADU [R. BANUMATHI, J]

was rightly taken into consideration by the Government while A
implementing the rule of reservation and consequential
seniority.

31. The respondents' submission regarding inadequacy
of representation of Scheduled Castes/Scheduled Tribes in 8
the Tamil Nadu Highways Engineering Service by itself is not
sufficient to uphold the inadequacy of representation of SCs/
STs in the said service. Even after Eighty-fifth Amendment,
the State is duty bound to collect data so as to assess the
adequacy of representation of the Scheduled Caste candidates c
in the service and based on the· same the State should frame
apolicy/rules for consequential seniority. No material is placed
on record that the State of Tamil Nadu has ever undertaken
such exercise of collecting data of adequacy of representation
of the SC/ST candidates in the Tamil Nadu Highways D
Engineering Service. In the absence of any rule conferring
consequential seniority in the State of Tamil Nadu 'catch up
rule' is applicable even amongst Junior Engineers promoted
as AD Es following rule ·of reservation and also for theidnter-
se seniority amongst AEs promoted as ADEs and JEs E
promoted asADEs following rule of reservation.

32. Respondents placed reliance on Rule 35 (aa) of Tamil
Nadu State and Subordinate Service Rules (General Rules)
to contend that they are entitled to consequential seniority in F
promotional position. Rule 35 (aa) relied on by the respondents
reads as under:-

"*(aa). The seniority of a person in a service,. class,
category or grade shall where the normal methqd of G
recruitment to that service, class, category or grade is
by more than one method of recruitment, unless the
individual has been reduced to a lower rank as a
punishment be determined with reference to the date on -
H
690 SUPR~E~QlA{T REPORTS [2015] 11 S.C.R.

A which he is appointed to the service, class, category or
grade.
Provided that where the junior appointed by a particular
method or recruitment happens to be appointed to a
service, class, category or grade earlier than the senior
B
appointed by the same method of recruitment, the senior
shall be deemed to have been appointed to the seI\lice,
class, category or grade on the same day on which the
junior was so appointed:
c Provided further that the benefit of the above proviso shall
be available to the senior only for the purpose of fixing
inter-se seniority .... "(* Substituted in G.O. Ms. No.523;
P &AR, dated 4.06.1982, w.e.f. 13.07.78)

o Rule 35 (aa) of Tamil Nadu State and Subordinate
Service (General) Rules relied upon by the 3•d respondent is
applicable only for normal appointments to any service, class,
category or grade and not reserved category promotions. Rule
35 (aa) does not specifically provide for consequential
E seniority to the accelerated promotees who were promoted
following the rule of reservation and Rule 35 (aa) is of no
assistance to the contesting respondents.

33. As noticed earlier, by application of Rule 12, it is
F evident that the Assistant Engineers and Junior Engineers of
reserved category got promotion to the post of Assistant
Divisional Engineer much earlier to the general category
candidates. At this juncture, we may refer to the comparative
table of service particulars of some of the appellants promoted
G as ADEs from Assistant Engineers/Junior Engineers and the
respondents in the post of Assistant Engineer and Junior
Engineer and their position in the cadre of Assistant Divisional
Engineer to appreciate the patent discrimination as under:-

H
S. PAN NEER SELVAM v. GOVERNMENT OF TAMIL 691
NADU [R. BANUMATHI, J.)

Nameard Educati Date of Date of SL No. in Date of SI.No. A
onal
status in appointment completion the .appoinbne in ADE
W.P.s., and Qualific asA.E./J.E. of probatio1 classifie ntand as on
Community at ton and the name d list of service as 01.04.2
of th! service A.E./J.E. ADE 004
to which the as on
appoinbnents 01.01.93
initially made
B
S. Paneer· 07/0511980
Selvam,
(Petitioner
T.N.H.E.S.
No. 1 in 8.E., 13.11.1984
(*Tamil Nadu 1180 11/02/2002 201
W.P. 33735 (C) AN
Highways
&34077)-
Engineering
MBC Service)
T.G. Raja-
sekaran
c
(Petitioner
No. 2 in B.E., 10/11/1978 09.11.1981
1159 0910911999 183
W.P. 33735 (C) T.N.H.E.S. F.N.
&34077).
MBC

V. 16/06/1998
(By
Viwkananda
n recruitment D
(Respondent by transfer
No. 3 inW.P. by applying
3CV04/1985 1666
Rule12of 119
34077)
-S.C.
B.E. T.N.H.E.S.S. --- (19)
the Tamil
Nadu
Highways
Engineering
Service)
v. E
Appadurai 29/04/1998
(Responden (By
tNo. 4in recruitment
W.P. 34077) by transfer
-S.C. 29/04/1985 1666 by applying
D.C.E. 120
T.NHE.S.S. -- (22) Rule 12of
the Tamil
Nadu
Highways
Engineering
F
Service'
u.
Palaniappan 12/0511999
(Responden (By
tNo. 3in recruitment
WP. 33735 by transfer
&39142)- 1310411987 by applying
O.C.E 14.06.1989 1477 150
s.c. T.N.H.E.S.S Rtie 12 of
the Tamil G
Nadu
Highways
Engineering
Service)

(As extracted in the judgment of the Single Judge)

H
692 SUPREME COURT REPORTS [2015] 11 S.C.R.

A If we look at the above comparative table of the service
pa11iculars of the appellants and the respondents, it is seen
that the contesting respondents U. Palaniappan joined the
service almost seven years after the appellants, his seniority
is automatically accelerated at an unprecedented rate and as
B on 01.04.2004 his seniority rank as ADE is 150 and seniority
of V.Appadurai is 120. The appellants who are qualified and
seniors than the contesting respondents are placed much
below in rank in comparison to the person belonging to the
reserved class promotees who were promoted following the
C rule of reservation. It is to be noted that the private respondents
in the present case have been promoted temporarily under
Rule 39 (a) and Rule 10 (a) (i) of the General Rules with the
condition that their inclusion in the promotional order shall not
confer on them any right whatsoever in the servi~e.
0
Determination of seniority is a vital aspect in the service career
of an employee and his future promotion is dependent on this.
Therefore, determination of seniority must be based on some
principles which are just and fair. In the absence of any policy
E decision taken or rules framed by the State of Tami Nadu
regarding Tamil Nadu Highways Engineering Service,
accelerated promotion given to the respondents following rule
of reservation in terms of Rule 12 will not give them
consequential accelerated seniority.
F
34. Appellants were appointed as Assistant Engineers
directly, while the respondents were initially appointed as Junior
Engineers. Hence according to the respondents, there was
no common seniority between the Assistant Engineers
G belonging to general category and Junior Engineers belonging
to reserved class and therefore promotion of JEs as AD Es
applying Rule 12 is of no relevance to the appellants. This
contention does not merit acceptance. Both the Assistant
Engineers in the Tamil Nadu Engineering Service and the
H Junior Engineers in the Tamil Nadu Engineering Subordinate
S. PANNEER SELVAM v. GOVERNMENT OF TAMIL 693
NADU [R. BANUMATHI, J.]

Service are feeder categories for filling up higher post of t_he A
Assistant Divisional Engineer in the ratio of 3: 1 between them.
Although, Assistant Engineers and Junior Engineers are
presently two distinct categories, prior to 1993, both Assistant
Engineers and Junior Engineers were in one category of
service-Tamil Nadu Highways Engineering Subordinate B
Service. Unly after G.O.Ms.No.807, Public Works (HK)
Department dated 24.05.1993, the post of Assistant Engineer
was raised to the level gazetted status and they were brought
in to State Service!Tamil Nadu Highways Engineering Service.
For promotion, even though two separate seniority lists are C
prepared for each category, they are actually of the same cadre
and the respondents cannot contend that if Junior Engineers
are promoted asADEs following rule of reservation applying
Rule 12, it does not affect the services of the Assistant D
Engineers.

35. In the absence of any provision for consequential
seniority in the rules, the 'catch up rufe'will be applicable and
the roster-point reserved category promotees cannot count
their seniority in the promoted category from the date of their E
I

promotion and the senior general candidates if later reach.
the promotional level, general candidates will regain their
seniority. The Division Bench appears to have proceeded on
an erroneous footing thatArticle 16 (4A) of the Constitution of F
India automatically gives the consequential seniority in addition
to accelerated promotion to the roster-point promotees and
the judgment of the Division Bench cannot be sustained.

36. In the result, the impugned judgment is set aside and
these appeals are allowed. State Government-respondent G
Nos. 1 and 2 are directed to revise the seniority list of Assistant
Divisional Engineers applying the 'catch up ru/e'within four
months. Pursuant to the impugned judgment of the Division
Bench of Madras High Court, if any further promotion had been H
694 SUPREME COURT REPORTS [2015] 11 S.C.R.

A granted to the Assistant Divisional Engineers promoted from
the rank of Junior Engineers following rule of reservation with
consequential seniority, the same shall be reversed. Further
promotion of Assistant Divisional Engineers shall be as per
the revised seniority list. The parties shall bear their own costs.
B
Kalpana K. Tripathy Appeals allowed.