STATE OF BIHAR AND ORS.versusBAGESHWARI PRASAD AND ANR.

A                         STATE OF BIHAR AND ORS.
                                           v.
                      BAGESHWARI PRASAD AND ANR.

                                 OCTOBER 6, 1994

B             (K. RAMASWAMY AND N. VENKATACHALA, JJ.]

         Service Law-Government circular bearing Letter No. 21-AG-I- 125-
  KG-20165-Reservation-Roaster not covered with post but with vacan-
  cy-Second vacancy reserved for Scheduled Castes and fourth for Scheduled
C Tnoes filled by general candidate since reserved candidates not available-<ith
  vacancy-Reserved candidate available-Authorities enjoined to consider the
  claim of reserved candidate-Power of Government to fuse all posts of equal
  scale of pay for applying role of reservation or successive vacancies arising in
  single post-Constitution of Indi~rticles 16(1) and 16(4).
D         The claim of Respondent No. 2 to be promoted as office Superinten-
    dent In a Supertlme Scale on the basis that be was a reserved candidate
    in the 6th vacancy was rejected by the High Conrt on the ground that since
    the post of Superintendent was a single post, it could not be reserved for
    the reserved candidates. The High Court issned a direction to the Govern-
E   ment to consider the case of a general candidate for promotion to the post
    of Office Superintendent. Hence appeal by the State.

           Allowing the appeal, this Court

           HELD : 1.1. In the Government Circular bearing Letter No. 21-AG-
F    I-125-KG-20165, the Government provided for reservation and prepared
     the roaster the posts in the cadre. Sample roaster for all categories of first,
     second, third and fonrtb division of service have been given: Second
     vacancy is reserved for Scheduled Castes, fourth vacancy for Scheduled
     Tribes and first, third, sixth and seventh vacancies are unreserved. It was
G    stated that in the matter of reservation, if there is only one vacancy, the
     second turn of vacancy of the same post would be filled by appointment of
     person fro.;.~erved castes. The roaster is not concerned with the post
     but with vacancy arising according to the roaster and will go on im·
     plementing the vacancy arising In each successive ·occasions. Thns In
H    considering the qnestlon whether a person can be considered for promo-
                                          318
                          STATE v. B.PRASAD                             319

lion from the reserved category on the basis of the roaster, it is not the     A
post that is material but it is the vacancy which is material. [320-B-F]

      1.2. In the instant case when second and fourth vacancy, reserved for
Scheduled Castes and Scheduled Tribes, have beeu filled by general can-
didates since reserved candidates were not, then available, when 6th vacan-
cy had arisen and the claim of the reserved candidate was available, the
                                                                               B
authorities were enjoined to consider the claim of the reserved candidate.
Under these circumstances, the second respondent was rightly considered
for promotion and was legally promoted as Superintendent.
                                                          [320-H, 321-A-B]
        Dr. Chabradhar Paswan v. State of Bihar and Ors., AIR (1988) SC 959,
                                                                               c
distinguished.

        CIVIL APPELLATE JURISDICTION : <;:ivil Appeal No. 7478 of.
1994.
                                                                               D
     From the Judgement and order dated 5392 of the High Court of
Patna in CWJC No. 4220/90.

        B.B. Singh for the Appellants.

        K.N. Rai for the Respondents.
                                                                               E
        The following Order of the Court was delivered :

        Leave granted.

      This appeal by Special Leave is directed against the judgment of
the High Court of Patna in C.W.J.C. No. 4220/90 dated March 5, 1992.           F
the only question that arises for consideration is whether Sita Ram
Prasad, respondent No. 2 was entitled to be promoted as Office Super-
intendent . in a Supertime scale' on the basis that he was a reserved
candidate in the 6th vacancy. The High Court in the impugned Judgment
relying on the Judgment of this Court in Dr. Chakradhar Paswan v. State        G
of Bihar & Ors., AIR (1988) SC 959 held that since the post of
Superintendent is a single post, it cannot be reserved for the reserved
candidates. Accordingly, the order of appointment to the reserved.vacan-
cy was held to be illegal, a direction was issued to the Government to
consider the case of the 1st respondent for promotion to the post of           H
    320                    SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A O.S. as a general candidate. The State has impugned that order in this
    appeal.

          In the Government Circular, Annexure R-1 bearing Letter No. 21-
    AG-I-125-KG-20165, the Government have decided in providing for
B   reservation and prepared the roaster to the posts in the cadre. In
    paragraph 2, it is stated thus :

              ''Therefore, ihe State Government has taken decision that for the
              removal of this criticisms and doubts there should be modification
              in roaster for 50 vacancies in the form of sample by those letters.
c             Sample of modified roaster is given below, this will be applicable
              for the recruitment and promotion from now onwards".

         Sample roaster for all categories of first, second, third and fourth
D division of service have been given. Second vacancy is reserved for
  Scheduled Castes, fourth vacancy for Scheduled Tribes and first, third,
  sixth and seventh vacancies are unreserved for general candidates. In
  paragraph 3, it was stated that it has to be made clear that in the matter
  of reservation, if there is only one vacancy, the second turn of the vacancy
  of the same post would be filled by the appointment of persons from
E reserved castes. The roaster is not concerned with the post but with
  vacancy arising according to the roaster and will go on implementing the
  vacancy arising in each successive occasions. Thus in considering the
  question whether a person can be considered for a promotion from the
  reserved category on the basis of the roaster, it is not the post that is
F material but it is the vacancy which is material. In Paswan 's case one post
  of Director and other posts of Dy. Director was sought to be fused for
  purpose of treating the posts available for reservation. The pay scales of
  the posts of Director and Dy. Director are different. The ratio does not
  preclude the power of the Government to fuse all posts of equal scale
G of pay for applying rule of reservation under Art. 16(1) and 16(4) or
  successive vacancies arising in single post. Thereforce, the general can-
  didates, when were promoted to the post of Office Superintendent, the
  Second vacancy which ought to have been reserved for Scheduled Castes
  and fourth for Scheduled Tribes, have been filled by the general can-
H didates since Scheduled Castes and Scheduled Tribes were not, then
                        STAIB v. B. PRASAD                           321
available. When 6th vacancy had arisen, the claim of the reserved           A
candidate was available and the authorities are enjoined to consider the
claim of the reserved candidate. The High Court was clearly in error in
relying the ratio in Paswan's case which stood entirely on a different
situation to hold that the post cannot be reserved. Under these circumas-
tances, the order of the High Court is set aside and the second             B
respondent was rightly considered for promotion and was legally
promoted as Superintendent. The writ petition stands dismissed. The
appeal is allowed. But in the circumstances without costs.

A.G.                                                    Appeal allowed.