Holding

The duty to implement reservation in promotion is a constitutional duty coupled with power, and the petitioners erred by not considering the SC candidate; the Tribunal's order promoting the respondent is affirmed.

Summary

The petitioners, the Superintending Engineer, Public Health, UT Chandigarh and others, appointed two officers to the post of Head Draftsman without considering the respondent, Kuldeep Singh, a Scheduled Caste (SC) candidate who was eligible for promotion under the reservation roster. The vacancy was reserved for Scheduled Tribes (ST); however, a Ministry of Home Affairs direction allowed the principle of alternative exchange, permitting an SC candidate to be considered when no ST candidate was available. The Central Administrative Tribunal held that the respondent should have been promoted and directed that he be considered from the date he was due, with all consequential benefits. The Supreme Court affirmed that implementing reservation in promotion is a constitutional duty coupled with power under Articles 14, 16(1), 16(4), 16(4A), 15(4), 335, 38 and 46, and that the petitioners breached this duty by ignoring the roster and the carry‑forward rule. Consequently, the Tribunal's order was upheld and the special leave petition dismissed.

Issues considered

The duty to implement reservation in promotion is a constitutional duty coupled with power under Articles 14, 16(1), 16(4), 16(4A), 15(4), 335, 38 and 46.
Whether the principle of alternative exchange applies in the UT of Chandigarh when no Scheduled Tribe candidate is available.
Interpretation of the three‑year carry‑forward rule for reserved vacancies and its impact on the respondent's eligibility.
Whether failure to maintain and follow the promotion roster violates constitutional obligations.

Legislation cited

Constitution of Indias. Article 14, s. Article 15(4), s. Article 16(1), s. Article 16(4), s. Article 16(4A), s. Article 335, s. Article 38, s. Article 46

Subjects

reservationpromotionScheduled CastesScheduled Tribesalternative exchangecarry forward ruleconstitutional dutypublic administrationequalityArticle 16(4)Article 335

Judgment

-r
A SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T.
CHANDIGARH AND ORS.
v.
KULDEEP SINGH AND ORS.

JANUARY 21, 1997
B
[K. RAMASWAMY, S. SAGHIR AHMAD AND ~
G.B. PATTANAIK, JJ.]

Constitution of India, 1950: An'.icles 14, 16(1), 16(1A), 38, 46 and 335.
c
Scheduled Castes and Scheduled Tribes-Reservation in promo-
tion-Principle of alternative exchange-Non-availability of scheduled tribe
candidate-Duty to consider scheduled caste candidate-Carry f01ward
rule-Respondents a scheduled caste candidate-Promotion as Head
D Draftsman-Respondent not considered-Other candidates appointed-Right
to promotion according to roster denied to respondent-Cliallenge by respon-
dent-Direction by T1ibunal to consider respondent from the date he was
actually due for promotion with consequential benefits-Appeal before
Supreme Court--Held the duty to implement the rule of reservation is a
constitutional duty-{t has to be performed in its true contents and
E spirit-Maintenance of the roster and strict adherence to it in accordance with
the brochure issued by the Government of India in that behalf to implement
the rule of reservatio11 in promotion is the charge and trust put on public
servants-The petitioner herein, has betrayed that trust and tended to frustrate
the public policy-Petitioner failed to peifonn that constitutional duty-The ;.... ... ·-
F Administrator of the Union Territory of Chandigarh disputed to look into and
take appropriate action against the concerned ening officers-Tribunal 1ightly
held 01e vacancy ought to have been filled up by promoting the respondent
when other candidate was considered and vacancy reserved for Scheduled
Tribes was filled up without considen'ng the case of the responde11t-Omission
thereof amounted to violation of constitutional duty and avoidance of im-
G plementation of the rule of reservation and the roster provided by the Govern-
ment-The view of the Tribunal, therefore, is correct in law warranting 110
inteiference. -"t>

Comptroller and Auditor-General of India Gian Prakash, New Delhi
H and Anr. v. KS. laga1111atha11 & Anr., [1986] 2 SCC 679, referred to.
454
0

SUPERINTENDING ENGINEER PUBLIC HEALTH v. KULDEEP SINGH 455
--+ State of Kera/a v. N.M. Thomas, [1976] 2 SCC 310; State of Punjab A
v. Hiralal, [1971] 3 SCR 267 and Akhil Bhartiya Soshit Karamchami Sangh
v. Union of India, [1981] 1 SCC 246, cited.

Public Administration-Public se1vant-P1inciple OJ power coupled
with duty-Eve;y public se1vant is t1Ustee of the society-He should be f aithfttl
in implementation of the political, social, economic and constitutional B
policies to integrate the nation, to achieve excellence and efficiency in the
public administration-A public se1va11t entrusted with duty and power to
implement constitutional policy under Articles 16(4), 16(4-A), 15(4), 335 and
all inter-related Directive Principles should exhibit transperacy in implemen-
tation and should go accountable for due effectuation of constitutional goals. c
Commissioner of Police, Bombay v. Gordhandqs Bhanji, [1952] SCR
135 and Julius v. Lord Bishop of Oxford, 5 App. Cas. 214; referred to.

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 492 of 1997. D
From the Judgment and Order dated 6.9.96 of the Central Ad-
ministrative Tribunal, Chandigarh in 0.A. No. 330 of 1989.

K.B. Rohtagi and Ms. Aparna Rohtagi for the Petitioners.
E
The following Order of the Court was delivered :

This special leave petition arises from the order of the Central
Administrative Tribunal, Chandigarh Bench, made on 6.9.1996 in O.A. No.
330/CH/89. Admittedly, the respondent belongs to -Scheduled Castes and
was eligible for promotion as Head- Draftsman. For the promotion to the F
said post, the petitioners appointed Mr. Ravinder Kumar Sood on March
30, 1988 and Mr. Dharam Nand on March 14, 1989. The respondent had
challenged their promotion and non-consideration of his case claiming that
he was eligible to be considered in the post as a reserved candidate though
the post was meant for Scheduled Tribes. By order of the Government of
India, the posts are inter-changeable between Scheduled Castes and the G
Scheduled Tribes and if the candidate belonging to Scheduled Tribes is not
available,· the eligible candidate belonging to .Scheduled Castes is entitled
to be considered for promotion to the post reserved for Scheduled Tribe
Candidates; Since he was not considered, the legitimate right to promotion
given according tO the roster was dettled to him. The Tribunal accepted H·

•
456 SUPREME COURT REPORTS [1997] 1 S. C.R.
A the contention and allowed the petition. In the meanwhile, pending his +
application he came to be promoted on June 26, 1993, However, direction
was given to consider him from the date he was actually due for promotion
with consequential benefits in the pfa.ce to which R .K. Sood was promoted.

Mr. K.B. Rohtagi, learned counsel for the petitioners, contends that
B in respect of the Union Territory of Chandigarh, no Scheduled Tribes list
is available and, therefore, the vacancy reserved for Scheduled Tribes
cannot be treated to be one available to the Scheduled Tribes. We find no
force in the contention. The Government of India, Ministry of Home
Affairs, admittedly, by letter dated June 12, 1986 had given direction that
C since in the Union Territory of Chandigarh, the population of Scheduled
Tribes is not available, the principle of alternative exchange to the
Scheduled Castes should be adopted. Consequently, when vacancy No.1 in
the roster is available to the Scheduled Tribes, it requires to be filled by
considering, for promotion, the candidates belonging to Scheduled Castes.
D It is, therefore, clear that though Scheduled Tribe candidate was not
available to fill up the vacancy at No.1 in the roster, the candidate belong-
ing to the Scheduled Castes was required to be considered according to
the Rules and given promotion on seniority-cum-fitness basis which is the
rule under which the candidates are required to be considered. Admittedly,
as on the time Mr. R.K. Sood was promoted, i.e., March 30, 1988 the
E respondent was admittedly eligible to he considered but he was not con-
sidered on the specious ground that as per the carry forward rule the
period of three years had expired. Therefore, he was not eligible at that
time. That contention is also not acceptable for the reason that in the
brochure for Scheduled Castes and the Scheduled Tribes, the word "sub-
sequent recruitment years" has been interpreted in Chapter II thereof as
F
under:

"Recruitment year shall mean a calendar year and for purposes of
three years limit for carry forward of reserved vacancies shall mean
that year in which recruitment is actually made."
G
Thus, it is clear that in a calendar year, i.e., from 1st January to 31st
December of the Calendar year, if the recruitment has been made and if
_the candidates belong to the Scheduled Castes and Scheduled Tribes are
not available, the reserved vacancies are required to be carried forward for
H three recruitment years. Take for instance, the recruitment took place in
SUPERINTENDING ENGINEER PUBLIC HEALTH v. KULDEEP SINGH 457
the year 1986 and the candidates belonging to Scheduled Castes and A
Scheduled Tribes are not available, the vacancies are required to be carried
forward for three recruitment years thereafter. Suppose the second recruit-
ment take place in 1989, the second recruitment year is 1989 but not the
year 1987, as sought to be interpreted by the respondent. It is seen and
admitted that in the year 1987, the respondent was not eligible. Therefore,
B
. the post was carried forward to the year 1987 and in 1988 the post was
filled up without considering the case of the respondent and the petitioners
construed it to be three recruitment years and thereby it is said that the
period of three years for the purpose has elapsed. The construction is
fallacious and deliberate to deny the benefit of reservation in the light of
the unequivocal instructions as e>..tracted hereinbefore. Moreover, no c
f proceedings for reservation and prior approval of the Government of India,
Ministry of Home Affairs were obtained. We are surprised to note, as
rightly pointed out by the Tribunal, that the petitioner, Union Territory
Office, despite given repeated opportunities to produce the roster, has
suppressed production of the roster which they are enjoined to maintain. D
In the petition, no explanation has been offered. The duty to implement
the rule of reservation is a constitutional duty to be performed honestly,
sincerely and in its true contents and spirit which the petitioner appears to
have derelicted.

Article 14 prohibits discrimination and Article 16(1) accords equality E
of opportunities in the matter of appointment to an office or post under
the State. Article 38 read with the Preamble enjoins the State to accord
socio-economic justice, the basic feature in all institutions of national life.
Article 335 of the Constitution enjoins that the claims of the members of
the Scheduled Castes and Tribes shall be taken into consideration, consis- F
tently with the maintenance of efficiency of administration, in the making ·
of appointments to services and posts in connection with the affairs of the
Union or of a State. It is settled law that it should be read consistent with
Article 46 of the Constitution to take special care of the education and
economic interests of the Scheduled Castes and the Scheduled Tribes and
to protect them from injustice and all fOrms of exploitation. Appointment G
to an office or post under the State is one of the policies of the State to
accord economic justice as part of social justice for integration of
Scheduled Castes and Scheduled Tribes in the social mainstream as also
dignity of person and equality of status. lt would be an opportunity to
improve excellence which is a fundamental duty. In the light of Article H
•

458 SUPREME COURT REPORTS [1997] 1 S.C.R.
A 16(4A) introduced by the Constitution (77th Amendment) Act, 1995 the
claims of the Scheduled Castes and the Scheduled Tribes for promotion
shall be taken into consideration in making appointment or giving promo-
tion. It is the constitutional duty coupled with power of the authorities
implementing the rules of recruitment including promotion. In that behalf,
B this Court in Comptroller and Auditor-General of India, Gain Prakash, New
Delhi and Anr. v. KS. Jagannathan & Anr., [1986] 2 SCC 679 at 693, a
three-Judge Bench was to consider whether the appellant-Comptroller and
Auditor-General of India was under the constitutional obligation to fix the -:.f
lesser standard of examination in the light of the brochure, to inform the
Scheduled castes and Scheduled Tribes employees of the same and to
C conduct refresher courses before conducting examination and whether the
failure to discharge the duty was unconstitutional. This Court considered
the constitutional obligation on the part of the authorities in implementing
the rule of reservation and pointed out in paras 21, 22 and 23 as under :

D "21. It is now necessary to examine the nature of the discretion
conferred by the said Office Memorandum dated January 21, 1977
- "Whether it is a discretionary power simpliciter or a discretionary
power coupled with a duty?" From the provisions of the Constitu-
tion referred to above, it is transparently clear that it is a discretion
to be .exercised in the discharge of the constitutional duty imposed
E by Article 335 to take into consideration the claims of the members
of the Scheduled Castes and the Scheduled Tribes, consistently
with the maintenance of efficiency of administration, in the making
of appointments to services and posts in connection with the affairs
of the Union or of a State. T.his.duty is to be exercised in keeping
F with the Directive Principle laid down in Article 46 to promote
with . special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled
Castes and the Scheduled Tribes, and to protect them from social
injustice and all forms of exploitation. Article 37 of the Constitu-
tion provides that the Directive Principles of State Policy contained
G in Part IV of the Constitution, in which Article 46 occurs, are
fundamental to the governance of the country and that it is the
duty of the State to apply these principles in makQ!g laws. As said
by Murtaza Fazal Ali, J., in State of Kera/a v. N.M. Thomas, at
page 996 of the Reports : SCC p. 395, para l64 "the directive
principles form the fundamental feature arid the social conscience
SUPERINTENDING ENGINEER PUBLIC HEALTH v. KULDEEP SINGH 459
of the Constitution and the Constitution enjoins upon the State to A
-t implement these directive principles".

22. The object of the said Office memorandum dated January
21, 1977, is to provide an adequate opportunity of promotion to
the members of the Scheduled Castes and the Scheduled Tribes.
B
By reason of the provisions of Article 16 (4) of the Constitution a
treatment to· the members of the Scheduled Castes and the
Scheduled Tribes different from that given to others in matters
~ relating to employment or appointment to any office under the
State does not violate the Fundamental Right to equality of op-
portunity for all citizens in such matters guaranteed by Article 16 c
( 1) of the Constitution. It is now well settled by decisions of this
Court that the reservation in favour of backward classes of citizens,
including the members of the Scheduled Castes and the Scheduled
Tribes, as contemplated by Article 16(4) can be made not merely
in respect of initial recruitment but also in respect of posts to which D
promotions are to be made : (see, for instance State of Punjab v.
~ -.... Hiralal, [1971] 3 SCR 267 and Akhil Bhaniya Soshit Karamchmi
Sangh v. Union of India, [1981] 1 SCC 246.

23. The question which now falls to be considered is the manner E
in which the Comptroller and Auditor-General of India is required
to exercise the discretion conferred by the said Office Memoran-
dum dated January 21, 1977, and the manner in which he has, in
fact, exercised it. The said Office Memorandum dated January 21,
1977, refers to two other Office Memoranda, namely, the Office
F
':,,,-....)., Memorandum dated December 23, 1970, and the Office Memoran-
dum dated November 27, 1972. Under the Office Memorandum
dated December 23, 1970, where a sufficient number of Scheduled
Castes and Scheduled Tribes candidates are not available on the
basis of the general standard to fill all the vacancies reserved for
them they may also be considered for promotion provided they are G
not found unfit for such promotion, and to achieve this, the said
office memorandum directs that the qualifying standard in such
examinations can be relaxed in their favour in keeping with the
above criterion. Thi: Office Memorandum dated November 27,
1972, fo.:es the reservation quota for the members of the Scheduled H
..---
460 SUPREME COURT REPORTS [1997) 1 S.C.R.

A Castes at 15% and the Scheduled Tribes at 7 1/2% in appointments +-
filled by promotion on the basis of seniority subject to fitness.
Under the said Office Memorandum dated January 21, 1977, if a
sufficient number of Scheduled Castes and Scheduled Tribes can-
didates are not available in the qualifying examinations on the basis
B of general standard to fill all the vacancies reserved for them in
the promotional posts, suitable relaxation in the qualifying stand-
ard for such examinations should be made in the case of the
Scheduled Castes and the Schedule Tribes candidates bearing in -.f
mind all relevant factors including, namely, (1) the number of
vacancies reserved, (2) the performance of the Scheduled Castes
c and the Scheduled Tribes candidates as well as the general can-
didates in that examination, (3) the minimum standard of fitness
for appointment to the post, and also (4) the overall strength of
the cadre and that of the Scheduled Castes and the Scheduled
Tribes in that cadre. The said Office Memorandum dated January
D 21, 1977, thus postulates two qualifying standards-one, a general
qualifying standard and the other, a relaxed or lower qualifying ...- t
standard for candidates belonging to the Scheduled Castes and the
Scheduled Tribes. Paragraph 4 of the said Office Memorandum
dated February 8, 1968, reproduced earlier, shows that in the case
E of direct recruitment through a qualifying examination a minimum
· standard is generally to be fixed and that in such cases, a lower
minimum qualifying standard should be fixed for the candidates
belonging to the Scheduled Castes and the Scheduled Tribes,
taking into account the minimum standard necessary for the main-
F tenance of efficiency of administration, and that if the minimum ~
qualifying standard for general candidates is reviewed at a later
date, the lower minimum qualifying standard applicable to the
Scheduled Castes and Scheduled Tribes candidates should also be
l
reviewed. The Office Memorandum No. 1/1170-EStt. (SCT) dated
G July 25, 1970 which deals with examination for direct recruitment
also speaks of a general standard and of a lower standard for
candidates belonging to the Scheduled Castes and the Scheduled
Tribes, the standard being required to be relaxed in their case to
make up the deficiency in the reservation quota provided they are
not found unfit for such post or posts. As seen above, a similar
•
H
SUPERINfENDING ENGINEER PUBLIC HEALTII v. KULDEEP SINGH 461

provision exists in the said Office Memorandum dated December A
23, 1970, with respect to department;;il competitive examinations
for promotion and in departmental confirmation examinations."

This principle of power coupled with duty was succinctly stated by
Earl Cairns L.C. in th0 House of Lords in Julius v. Lord Bishop of OJ.ford, B
5 app. Cas. 214 at 222-223 quoted with approval therewith by this Court in
Commissioner of Police, Bombay v. Gordhandas Bhanji, (1952] SCR 135
--~ at 147 thus :

"There may be something in the nature of this thing empowered C
to be done, something in the object for which it is to be done,
something in the conditions under which it is to be done, something
in the title of the person or persons· for whose benefit the power
is to be exer:cised which may couple the power with a duty, and
make it the duty of the person in whom the power is reposed, to
exercise that power when called upon to do so". D

It would thus be clear that the petitioner was under constitutional
duty coupled with power. Every public servant is a trustee of the society
and in all facets of public administration, every public servant has to exhibit
honest, integrity, sincerity and faithfulness in implementation of the politi- E
cal, social, economic and constitutional policies to integrate the nation, to
achieve excellence and efficiency in the public administration. A public
servant entrusted with. duty .and power to implement constitutional policy
under Articles 16(4), 16(4-A), 15(4) 335 and all inter-related directive
principles, should exhibit transperacy in implementation and should be F
·-·-'-
accountable for due effectuation of constitutional goals. Maintenance of
the roster and strict adherence to it in accordance with the brochure issued
by the Government of India in that behalf to implement the rule of
reservation in promotion is the charge and trust put on public servants.
The Con~titution has trusted the public servant as honest administrator to
effectuate public policy and constitutional goals. The petitioner herein, has G
betrayed thattrust and tended to frustrate the public policy. It is deducible
from the facts that the perttioner failed to perform that constitutional duty.
The Administrator of the Union Territory of Chandigarh should look into
and take appropriate action against the concerned erring officers and
report compliance to the Registry of this Court within two months. H
462 SUPREME COURT REPORTS [1997] 1 S.C.R.

A The Tribunal, therefore, had rightly held that in the year 1988, the
vacancy ought to have been filled up by promoting the respondent when
R.K. Sood was considered and vacancy reserved for Scheduled Tribes was
filled up without considering the case of the respondent. Omission thereof
amounted to violation of constitutional duty and avoidance of implemen-
tation of the rule of reservation and the roster provided by the Govern-.
B ment. The view of the Tribunal, therefore, is correct is law warranting no
interference. I
~~
The special leave petition is accordingly dismissed. I

T.N.A. Petition dismissed.