Elimination of Merit/Senority in Reservation

This forum is started on demand of our members with a view to have a healthy discussion on this subject as the same is being a HOT TOPIC now. Kindly use this forum as a facility to convey your views but, do not hurt any body's sentiments. To start with Im posting the letter written by Sri. Kumaraguru.

From

S.Kumaraguru,

38, Gandhi Road,

Salem 636 007

To

Shri. K.G. Verma

Director,

Ministry of Personnel, Public Grievances and Pension,

Department of Personnel and Training,

North Block,

New Delhi 110 001.

Sir,

Sub: Reservation in promotion- Treatment of SC/ST candidates promoted on their merit.

*********

Kind reference is invited to DOPT letter No.36012/45/2005-Estt.(Res.) dt. Dt.10-08-2010 on the subject mentioned above.

02. The Hon’ble Apex Court judgement in the case of R.K. Sabharwal and others vs State of Punjab reported in 1995-AIR-1371-SC is holy mantra for the policy of reservation. The objective of reservation is to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must be intertwined to the objective sought to be achieved. Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled, the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant due to retirement, resignation, promotion etc., in a cadre thereafter, is to be filled from the category reserve or general. Further, the said judgement was delivered involving the posts to Group C and D only and it appears that the said judgement cannot be made applicable to Group B Gazetted posts.

03. In pursuance of the above decision, the Department of Personnel and Training has issued O.M.No.36012/2/96-Estt-RES) dated 2.7.1997. Paragraph 3 of this O.M reads as follows:-

“ 3. With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 200-point, 40-point and 120-point vacancy based rosters shall be replaced by post-based rosters. All Ministries/ Departments and concerned authorities are requested to prepare the respective rosters based on the principles elaborated in the Explanatory Notes given in Annexure-I to this OM and illustrated in the Model Rosters annexed to this OM as Annexures-II, III and IV. Similarly, the concerned authorities may prepare rosters to replace the existing 100-point rosters in respect of local recruitment to Groups ‘C’ and `D’ posts on the basis of the same principles.”

04. However, the Judgement of Madras High Court in the case of UOI vs S. Kalugasalamoorthy in WP No.15926/2007 related to promotion from Group C/Group B Non gazetted to Group B Gazetted. The instructions issued in connection with recruitment to Groups C and D cannot be made applicable to the above said case.

O5. Even assuming that the said judgment is applicable to Group B Gazetted, the said posts should be filled as per guidelines issued by the Apex Court in the case of R.K. Sabharwal and others vs State of Punjab . In this regard, I would like to draw your kind attention to Para 5 and 6 of the above cited judgement.

5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservation provided under the impugned Government instructions is to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Scheduled Tribes and Backward classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts..." are reserved for members of the Scheduled Caste and Back ward classes. In a lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, and 22nd and onwards up to 91st post. When the total number of posts in a cadre is filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account” is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Back ward Classes in the State services and is consistent with the demographic estimate base on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees /promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15, retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.

6. The expressions "posts" and "vacancies" often used in the executive instructions providing for reservations are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions makes it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.

06. For example if there are 200 posts vacant in any cadre, a Roster has to be prepared based on the principles elaborated in the Explanatory Notes given in Annexure-I and illustrated in the Model Rosters annexed to this OM as Annexures-II, III and IV. Explanatory Note no.6 being relevant is being reproduced below:-

“6. As indicated in the model roster, the method for making a roster is to multiply each post by the prescribed percentages of reservation for the different reserved categories. The point at which the multiple for a community obtains a complete number or oversteps the number is to be reserved for that community- while taking care to evenly space out the different reserved categories. Thus, at point No.15, in the roster at Annexure-II, both OBC and SC get entitled. However, since earlier reserved point has gone to OBC, point no.15 has been reserved for SC and point No.16 for OBC.”

According to which the posts mentioned at Sl.Nos below are to be reserved for SC and ST category respectively.

For category of SC

Sl.Nos: 7,15,20,27,35,41,47,54,61,68,74,81,87,94,99,107,114,121,127,135,140,147,154,162,168,174, 180,187,194 and 199

For category of ST

Sl.Nos. 14,28,40,55,69,80,95,108,120,136,148,160,175,188 and 198

07.1 In vacancy of 200 posts, 155 from General category and 45 from SC/ST will be considered for promotion. A list of 200 candidates is to be prepared. Suppose a candidate at Sl.No 10 is from SC category, he cannot be considered as merit candidate as he will be appointed against at Roster Point Sl.No. 7 which is earmarked for SC category. Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled, the reservation is complete. All reserved category persons falling within 155 have to be treated as above. Straight way the top 155 candidates cannot be treated as merit candidates.

07.2 The feeder cadre for promotion to post of Superintendent of Central Excise is Inspector of Central Excise. SC/ST candidates who have been promoted within top 155 candidates against adoption of reservation policy should not at all be considered as merit candidate. This may result in excessive reservation. In this regard, the observations of the Apex Court in Para 5 of the judgement is reproduced again here for the sake of convenience:

“The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation”.

A model Roster is enclosed herewith for your perusal.

07.3. The

08. Further, it appears that the Circular has equated seniority with merit. The position of “merit” is decided based on the performance of a person in a tough competitive examination conducted by SSC and UPSC, whereas seniority in a cadre is assigned to them based on the merit obtained in the said examination and various parameters prescribed by the respective Department. In other words, the reserve category candidates can compete for the non-reserve posts by putting in more effort but cannot compete for seniority as it is being assigned to them as stated above.

09. Only SC/ST/OBC candidates who are selected on the same standard as applied to general candidate are be considered as merit candidate. In other words, when a relaxed standard is applied in selecting a SC/ST/OBC candidates, for example in the age limit, experience qualification, permitted number of chances in the written examination, fee concession, extended zone of consideration larger than what is provided for general category candidates etc, such SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates should not and must not be considered against unreserved vacancies.

10. The policy of reservation is applicable to the cadre restructuring, subject to the conditions of eligibility including the minimum period of service and who are adjudged suitable by the process of selection as per Para 27 of the Hon’ble Apex Court judgement in the case of Union of India vs Puspha Rani and others.

The policy envisaged that additional posts becoming available in the higher grades as a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility including the minimum period of service and who are adjudged suitable by the process of selection.

11.1 In 1997, Inspectors who had completed 15 years of service were promoted to the cadre of Superintendent of Central Excise. Some posts out of existing total were placed in higher grade to provide avenue to the staff who were stagnating. The placement of these posts in the higher grade cannot be termed as creation of additional posts. There were a definite number of posts and the total remained the same. The only difference was that some of these were now in a higher grade. It was a deliberate exercise or re-distribution with the primary objective of betterment of chances of promotion and removal of stagnation. Further, in 2002 too, restructuring was effected to remove stagnation in the cadre of Inspector of Central Excise. Additional posts could only be created if there were additional requirements. In view of the judgement cited supra, the policy of reservation is not applicable in the process of effecting removal of stagnation.

11.2 It would be a different matter, if in a fixed cadre the promotion is made on occurrence of vacancies in higher grades. Such vacancies arise due to promotion, attrition or creation of additional posts. It is in such situations that reservation percentages apply and have to be followed. Up- gradation of cadres by redistribution of posts will lose its primary objective if it is taken as generation of additional posts in the up-graded posts. There has to be rationality in the implementation of direction and instructions. The key thought behind the exercise should not be lost sight of. It is to improve prospects, remove stagnation and provide avenues. In such an exercise, the policy of reservation is not applicable as held in Para 27 of Union of India vs Pushpa Rani and others.

11.3. In addition to the above, the Hon’ble Apex Court in the case R.K. Sabharwal and others vs State of Punjab had prescribed a method in Para 10 of the judgement how to fill the backlog vacancies of Reserved Category and the same is produced below for ease of reference.

9. A Division Bench of the Allahabad High Court in J.C. Malik v. Union of India and others,[(1978) 1 SLR 844(All)] interpreted Railway Board's circular dated 20.04.1970 providing 15% reservation for the Scheduled Castes. The High Court held that the percentage of reservation is in respect of the appointment to the posts in a cadre. On the basis of the material placed before the High Court it reached the conclusion that if the reservation is permitted in the vacancies after all the posts in a cadre are filled then serious consequences would ensue and the general category is likely to suffer considerably. We see no infirmity in the view taken by the High Court.

10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at various roster-points are filled from amongst the Scheduled Castes/ Scheduled Tribes candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31.12.1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Back ward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts there by increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster-point it would be open to the State Government to carry forward the point in a just and fair manner.

12. Article 16 deals with Equality of Opportunity related to public Employment. Clause (1) of Article 16 lays down the general rule guaranteeing that there shall be equal opportunity for citizens in matters related to employment and or appointment to any office under the state. Article 14- It provides for Equality before law and Equal protection of laws within the territory of India. Article 14 of the Indian constitution declares that ‘the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ It means that law treats equally all individuals without any discrimination right from the top to the bottom. All persons are treated equally in the equal circumstances. Hence, it is requested that proper instructions may please be issued to the CBEC incorporating the above points as laid down in the case laws cited supra upholding the Dharma of Equality of opportunity guaranteed by clause (1) of Article 16 of the Constitution of India as held by Hon’ble Supreme Court Para in the case of Indira Sawhney’s.

"Take a unit / service / cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes, At a given point of time, let us say the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500 i.e, till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year is not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be".

Yours sincerely,

Copy to

(i) Sri.V.SRIDHAR IRS,

Chairman, Central Board of Excise and Customs,

North Block, New Delhi

(ii) Smt.KUSUM SATAPATHY IRS,

The Commissioner of Central Excise,

Chennai-I

26/1, Uthamar Gandhi Salai

Nungambakkam, Chennai 600 034.

Note: Please ascertain the following facts from Railways also. Following judgement of the Supreme Court in R.K. Sabharwal Vs. State of Punjab and UOI Vs. J.C. Malik case, Railway Board have issued instructions regarding maintenance of rosters, which came to be known as “POST BASED ROSTERS” . This type of roster has come into effect from 10/2/1995. This has been implemented only in respect of Group ‘D’ and ‘C’ categories and for Group ‘B’ and above, post-based is being followed from 01.04.05.

Sir,

Reservation is compulsory in a Country like INDIA. One need not elaborate the sufferings of the so called reserved people. BUT for reservation many of them could not have reached a decent living. In a caste ridden society to some extent reservation is necessary. However if there is any lapse in the DOPT letter as pointed out by Mr.Kumaraguru in his letter it is absolutely necessary to remove that lapse. All should co operate. I am for common good.

Thanks.

Yours sincerely,
M. RAM KUMAR B.Sc.B.L.,M.B.A,
INSPECTOR SERVICE TAX,
BANGALORE 9341282376
mramkumar2@gmail.com

A Layman’s understanding of the issue:Feeder cadre for promotion to the post of Superintendent of Central Excise is Inspector of Central Excise.
Appointment of Inspectors:
Appointment to the cadre of Inspector is partly by promotion and partly by direct recruitment.
Seniority among direct recruits and promotees:
In a service where recruitment is partly by promotion and partly by direct recruitment, the system of fixing seniority by rotation is followed and this is being done in a number of services under the Union of India.
The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendation of the SSC. Where promotions are made on the basis of selection by a DPC, the seniority of such promotees shall be in the order in which they are recommended for such promotion by the committee.
The relative seniority of direct recruits and of promotes shall be determined according to the rotation of vacancies between direct recruits and promotes, which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively, under the recruitment Rules.
If adequate number of direct recruits is not available in any particular year, rotation of quotas for the purpose determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, the extent to which direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position up to which it is possible to determine seniority, on the basis of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruit quota vacancies would, however, be carried forward and added to the corresponding direct recruit vacancies of the next year and to subsequent years where necessary, for direct recruitment for the total according to the usual practice.
In other words, there is no separate senior list for Direct Recruit Inspectors and Promotee Inspectors. Once it is mixed, the merit obtained in the process of Direct Recruitment gets diluted. Therefore, they cannot claim any merit status in the seniority list. Further, the combined seniority list is being maintained, irrespective of General Category and Reserved Category.


Departmental Promotion Committee:
The panel is prepared by the DPC in the order of their inter-se seniority in the feeder cadre and there shall be no supersession in promotion among those who are found fit by the DPC, in terms of procedure prescribed by DOPT. No preference is given to the grading such as EXCELLENT, OUTSTANDING, VERY GOOD AND GOOD. The element of selectivity shall not be determined with reference to the relevant bench- mark cited above. A running account of officers is being maintained according to their seniority. Suppose 100 Officers are on the list to be promoted as indicated below. It is only an illustration.
LIST OF CANDIDATES AVAILABLE FOR PROMOTION
========================================================
Sl.No Category Sl.No Category Sl.No Category Sl.No Category
========================================================
1 General 26 General 51 General 76 SC
2 General 27 General 52 General 77 SC
3 General 28 General 53 General 78 SC
4 General 29 General 54 General 79 General
5 General 30 General 55 General 80 General
6 General 31 General 56 General 81 SC
7 General 32 General 57 General 82 SC
8 General 33 General 58 General 83 SC
9 General 34 General 59 General 84 SC
10 General 35 General 60 General 85 SC
11 General 36 General 61 SC 86 SC
12 General 37 General 62 SC 87 SC
13 General 38 General 63 SC 88 SC
14 General 39 General 64 SC 89 ST
15 General 40 General 65 SC 90 ST
16 General 41 General 66 SC 91 ST
17 General 42 General 67 SC 92 ST
18 General 43 General 68 ST 93 General
19 General 44 General 69 ST 94 General
20 General 45 General 70 ST 95 General
21 General 46 General 71 ST 96 General
22 General 47 General 72 SC 97 General
23 General 48 General 73 SC 98 General
24 General 49 General 74 SC 99 General
25 General 50 General 75 SC 100 General
========================================================

Suppose there are 50 vacancies to be filled by promotion. As per Reservation Policy, 38 Officers from general category and 12 Officers from Reserved category will be drawn. Therefore, Officers from 1 to 38 from General category and 12 Officers belonging To SC/ST placed at Sl.Nos 61 to 72 will be drawn.

The remaining Officers available for promotion are as under:
LIST OF REMAINING CANDIDATES AVAILABLE FOR PROMOTION
==========================================================
Sl.No Category Sl.No Category Sl.No Category Sl.No Category
==========================================================
51 General 76 SC
52 General 77 SC
53 General 78 SC
54 General 79 General
55 General 80 General
56 General 81 SC
57 General 82 SC
58 General 83 SC
59 General 84 SC
60 General 85 SC
86 SC
87 SC
88 SC
39 General 89 ST
40 General 90 ST
41 General 91 ST
42 General 92 ST
43 General 93 General
44 General 94 General
45 General 95 General
46 General 96 General
47 General 97 General
48 General 73 SC 98 General
49 General 74 SC 99 General
50 General 75 SC 100 General
=================================================================
In the case of another promotion for 50 Officers, 38 Officers from General Category are to be drawn. The Officers placed at Sl. No. 73 to 78 and 81 to 89 cannot claim that they are eligible for promotion under General category as they are within their own merit/seniority. But for the adoption of reservation policy, Officers placed at Sl.No. 61 to 72 would not get their promotion. Because of this, the Officers placed at Sl.No 73 to 78 and 81 to 89 have automatically gone up in list and not by their own merit. Therefore, the promotions are to be effected based on the adoption of reservation policy and there is no place for own merit.
In the case of first 50 promotions, they demand adoption of reservation policy but for the next 50 promotions they demand based on their own merit. It definitely seems improper and unjust. A uniform policy has to be adopted, either based on the seniority or adoption of reservation policy.
Let the layman be enlightened

suppose there are 100 vacancies ie 15-SC 8-ST and 22 OBC and 50 UR and the senior most employees in the substantive grade 30 SC, next 20 ST { who have gained this seniority due to promotion in reserved quote and appointment in reserve quote by applying the 85th amendment} so then:
--- the UR category seats will be filled up by 30 SC and 20 ST and still their quote vacancies will be considered empty; there by ultimaltely there will be 45 SC, 28 ST and no UR....... this is justice??????

In the RK Sabharwal case, the Apex Court rejected the point that "if more than 14% of the SC candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservation in the said cadre having been achieved the Government instructions providing reservation would become inoperative" (Page 3 para 2(1)) (decision para 4, page 4,5).

However, this is a case of promotion and the recruitment rules provide that
" (2) Promotions shall be made by selection on the basis of merit and suitability in all respects and no member of the Service shall have any claim to such promotion as a matter of right or mere seniority."
In the above case, the select list is prepared basing on merit of the candidates and there is chance of supersession.
Now, there in no supersession in case of promotion and the select panel is prepared basing on the seniority list. There in no competition / comparative evaluation. Even the reserved candidates owe their seniority position to reservation. Had there been no reservation, the reserved candidates would not have been selected during that year.
In view of the above, it appears that this OM dated 10.8.2010 is against the principle set by the Apex Court.

In the case R.K. Sabharwal and others vs. State of Punjab and others reported in (1995) 2 SCC 745 it was held that persons belonging to the reserved categories, who are appointed on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation. To implement the said verdict, review D.P.C. are being conducted by all the cadre controlling authorities sub ordinate to C.B.E.C. .
The judgment in the case of R.K. Sabharwal (Supra) also laid down following principals for implementation of Resevation policy as detailed below and dully endorsed by the Government of india vide O.M.No. 36012/2/96-Esst. (Res.) dt.02.07.1997:-
1. The reservation of posts for SC/ST/OBC should apply to posts and not to vacancies.
2. Vacancy based rosters can operate only till such time as the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentage of reservations.
3. Thereafter the roster cannot operate and vacancies released by the retirement ,resignation, promotion, etc. of the persons belonging to the general and the reserved categories are to be filled by appointment of persons from respective category so that the prescribed percentage of reservation is maintained.
4. Vide Para 8 of the said judgmemt (Supra) it was also clarified that even the restriction of reservation to 50% of the vacancies to be filled in a year does not apply as was observed and held in the case of Indra Sawhney v. Union of India [1992 Supp (3) SCC 217: 1992 SCC (L&S) would not apply. Their lordship held-
“8. The quoted observations clearly illustrate that the rule of 50% a year as a unit and not the entire strength of the cadre has been adopted to protect the rights of the general category under Clause (1) of Article 16 of the Constitution of India. These observations in Indra Sawhney's case [1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] are only in relation to posts which are filled initially in a cadre. The operation of a roster, for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit. Indra Sawhney's case is not the authority for the point that the roster survives after the cadre-strength is full and the percentage of reservation is achieved.”
As such the case of R.K. Sabharwal signifies the shifting of reservation from vacancies to posts. Though simpler to understand but not so simple to operate. The reservation policy presently put into practice are still oriented to reservation in vacancies and not to posts. Some finer intricate points responsible for current mess in implementation of reservation policy merit consideration are as under:-
• Whether any increase in the posts of the cadre would be treated and filled up as vacancies.
• What would be the precedence of filling the vacancies pertaining to 3 different categories i.e. Unreserved, Reserved for Scheduled Castes, and Reserved for Scheduled Tribes.
• Whether the vacancies are to be filled up post to post basis or in bulk.
• Model rosters enclosed with O.M. No. 36012/2/96-Esst. (Res.) dt.02.07.1997 which prescribes for initial constitution of a cadre having strength of 200 posts shows that :-
1. Right to man 30 posts occurring at Sl. No. 7,15,20,27,35,41,47,54,61,68,74,81,87,94,99,107,114,121,127,135,140,147,154,162,168,174,180,187,194,199 is reserved for Scheduled Castes candidates.
2. Right to man 15 posts occurring at Sl. No. 14,28,40,55,69,80,95,108,120,136,148,160,175,188,198 is reserved for Scheduled Tribes candidates.
3. Remaining posts are treated to unreserved and remains open for candidates of any category.
4. It is pertinent to mention that sequence of 155 unreserved posts is not continuous but has been spilt in to 33 segment as detailed below meaning thereby that before proceeding to succeeding segment it is mandatory to fill up the reserved post which being a constitutional obligation will have a precedence for filling.
Segment. No. Col(1) Sl.No.
of Posts
Col(2) Posts
Reserved
for SC
Col(3) Posts
Reserved
for ST
Col(4) No. of UR. candidate in continuation
Col(5) Segment.
No.
Col(6) Sl.No.
of Posts
Col(7) Posts
Reserved
for SC
Col( Posts
Reserved
for ST
Col(9) No. of UR. candidate in continuation
Col(10)
1 1-6 7 6 17 109-113 114 5
2 8-13 15 14 6 18 115-119 121 120 5
3 16-19 20 4 19 122-126 127 5
4 21-26 27 28 6 20 128-134 135 136 7
5 29-34 35 6 21 137-139 140 3
6 36-39 41 40 4 22 141-146 147 148 6
7 42-46 47 5 23 149-153 154 5
8 48-53 54 55 6 24 155-159 160 5
9 56-60 61 5 25 161 162 1
10 62-67 68 69 6 26 163-167 168 5
11 70-73 74 4 27 169-173 174 175 5
12 75-79 81 80 5 28 176-179 180 4
13 82-86 87 5 29 181-186 187 188 6
14 88-93 94 95 6 30 189-193 194 5
15 96-98 99 3 31 195-197 199
198 3
16 100-106 107 108 7 32 200 1

5. It is just because of the fact that category of a post whether it would be reserved for Scheduled Castes, or for Scheduled Tribes, or it would remain unreserved depends upon the sequence of the post in the roster.
6. In the model roster sequence of 155 unreserved posts is not un-interruptedly continuous or en-block say Sl. No.1 to 155. It has been spilled over in as many 32 segment to duly recognize the obligation to reserve posts for Scheduled Caste /Scheduled Tribes.
Sl.No. No. of
un-reserved
posts in
the segment Nos. of
segments Total
Number
of
unreserved
vacancy
Col(1) Col(2) Col(3) Col(4)
1 7 2 14
2 6 9 54
3 5 12 60
4 4 4 16
5 3 3 9
6 1 2 2
32 155


7. Accordingly at the time of initial constitution of roster of posts, the officers to man such posts should be identified with reference to each post and not in an en-block manner for it would not be post based reservation but it would amount to vacancy based reservation much against the letter & sprit of the Apex Court’s decision in the case of R.K.Sabharwal (Supra) . The same Principal applies to posts added to the strength of a cadre, because, as per in that case the roster shall be increased correspondingly.(please refer to Explanatory Note 9 in Annexure-I to O.M.No.36012/2/96/-Estt.(Res.) dt.02.07.1997).
8. It would be a mistake of proprietary if in the rosters of Additional posts unreserved posts are decided to be filled up in an en-block manner having regard to uninterrupted sequence in Seniority. This would also be scientifically in-correct since filling up the same number of posts but in batches of different size would result in to different set of candidates manning the very same set. Illustration to such error has been annexed here with for ready reference.
9. In the illustration the feeder cadre consists of 6 equal batches of 40 persons which includes 31 appointments against Unreserved posts(URy11 to URy41), 6 appointments against reserved posts for Scheduled Castes (SCy11 to SCy16) and 3 appointments against reserved posts for Scheduled Castes (STy11 to STy13). y denotes year of the batch from 1 to 6. Accordingly not only each batch is compliant to instructions for implementation of reservation but also the entire feeder cadre of 240 posts is compliant to that. Out of the 240 persons of feeder cadre 200 persons are to be promoted to new posts of promotion for which a post based roster has been drawn in accordance with DOPT instructions dt.02.07.1997.

10. A perusal of the illustration would reveal that:-
a. When roster is filled in piecemeal manner i.e. one post after one post and in the sequence directed by the roster:-
i. Last promoted person of unreserved category -UR540,
ii. Last promoted person of S.C. category -SC611
iii. Last promoted person of S.T. category -ST513
iv. Number of persons belonging to reserved category - 1
but appointed against unreserved posts

v. Number of reserved vacancies carried forward - none
• SC-0
• ST-0

b. When roster is filled in bulk for en-block 200 posts i.e. first 155 posts are filled from unreserved candidates then reserved category posts are filled up :-
i. Last promoted person of unreserved category -UR441,
ii. Last promoted person of S.C. category -SC616
iii. Last promoted person of S.T. category -ST613
iv. Number of persons belonging to reserved category -31
but appointed against unreserved posts

v. Number of reserved vacancies carried forward
• SC-16
• ST-6

c. When roster is filled in bulk and in an en-block manner but in three lots of 80, 80, & 40posts i.e. first unreserved posts of the lot is filled and reserved category posts are filled up after that :-
i. Last promoted person of unreserved category -UR531,
ii. Last promoted person of S.C. category -SC616
iii. Last promoted person of S.T. category - ST613
iv. Number of persons belonging to reserved category - 10
but appointed against unreserved posts

v. Number of reserved vacancies carried forward
• SC-1
• ST


11. It is easy to detect that if en-block filling method is opted for promotion there would be different sets of officer for the very same 200 posts depending upon the number of lots & there size. This proves that en-block filling method is not only illegal but also irrational and unscientific. If 200 new posts are to be filled the persons manning the 200 posts should remain unchanged, as long as the total number of posts remain same i.e.200, irrespective of the numbers of lots and sizes of such lots. But that is not the case in en-block filling method. It proves that the greater the size of the lot, more it would be unscientific.
12. Filling up the vacancies in an existing Post based roster and caused by the death, retirement, promotion of the persons:- Though the existing instructions direct to prepare a panel of officers in advance so that when eve a vacancy is created it is filled immediately. As such it follows the principal of occurrence i.e. First out first in, means the vacancy created in a category shall be filled by the candidates of such category. There may not be any conflict had the cadre controlling authorities issues orders for promotions as and when a vacancy is arised, however cca prefers to accumulate the vacancies over a period of time and then issues orders. If implemented in en-block filling manner in many cases it would deprive the general category category candidates from their right ful promotion and would impose unconstitutional / illegal reservation without any legal authority.

<div align="justify"><b>Excellent thread bare analysis of a complex issue by S.Kumaraguru, tamil, asiskpanda, and S.A.Kuma, however it is unfortunate that such an important issue having long term implication on every Govt. employees career is not getting due attention from the cadre. My suggestions for speedy resolution of the issue are:-</b><br><br><b>1. implication of bulk filling of posts should be duly distinguished for direct recruitment and for promotion separately. In direct recruitment where posts are filled from a large number of contestants bulk filing may not have much impact where as in promotion manner of filling the posts has much wider impact considering that bulk filling bunches batches of different year together.</b><br><br><b>2. The discrepancy in implementation of Post based reservation system against the sprit of the decision of apex Court given in the case of R.K.Sabharwal excellent analysed in this forum should be brought in to the notice of the Kolkata High Court so that a judicious final verdict in the issue can be passed by the Hon’ble High Court and the issue may not be lost in a long legal battle.</b></div>

<div align="justify"><b>Excellent thread bare analysis of a complex issue by S.Kumaraguru, tamil, asiskpanda, and S.A.Kuma, however it is unfortunate that such an important issue having long term implication on every Govt. employees career is not getting due attention from the cadre. My suggestions for speedy resolution of the issue are:-</b><br><br><b>1. implication of bulk filling of posts should be duly distinguished for direct recruitment and for promotion separately. In direct recruitment where posts are filled from a large number of contestants bulk filing may not have much impact where as in promotion manner of filling the posts has much wider impact considering that bulk filling bunches batches of different year together.</b><br><br><b>2. The discrepancy in implementation of Post based reservation system against the sprit of the decision of apex Court given in the case of R.K.Sabharwal excellent analysed in this forum should be brought in to the notice of the Kolkata High Court so that a judicious final verdict in the issue can be passed by the Hon’ble High Court and the issue may not be lost in a long legal battle.</b></div>

To my knowledge this issue was put up before the CBEC sometime back. The cbec however overlooking the ratio of the Honble apex court judgment which stands in the Ministry of railways, has in the guise of caring for the weaker sections of the society has cleared reservation of sc/st candidates during the previous restructuring. Perhaps a properly drafted rti will throw light on the facts.
yes principally reservation is a must for upliftment of the weaker section. But in the same vein, the upliftment beyond established principles and percentages and beyond ratio of apex court decisions is a slap on equality.
Let us see who has guts to take the bull by the horns.

Hon'ble Apex Court in its judgement dated 29.09.2010 in the Civil Appeal No. 2379 of 2005 in the case of K Manorama on a exactly similr issue appears to have put an end to the issue. The para 14 of the decision read as
"14. Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability."
Now we should wait to see how much time DOPT takes to withdraw its OM dated 11.7.2002 and 10.8.2010. Will it be as swift as it was in accepting the Madras High Court decision and issi\uance of IM dated 10.8.2010.
I would request all those adversly affected by this two DOPT OMS to sucbmit a copy of this decision available in the website (www.courtnic.nic.in) to the concerened cadre controlling authority immediately to stop further nuisance of the OM dated 10.8.2010 and file cases in CAT to get the wrong rectifed imedialty. All those interested to get a copy of the decision can also send their request to me om email asiskpanda@yahoo.co.in. Please wiat upto 21st OCt to get a reply as i am off on holiday till that day.

Dear comrades please refer to this Department’s O.M. No. 36028/17/2001-Estt. (Res.) dated 11th July, 2002 which
clarified that SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will be adjusted against un-reserved points of thereservation roster and not against reserved points. It was subsequently clarified by this Department’s O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 that the above referred
O.M. took effect from 11.7.2002 and that concept of own merit did not apply to the promotions made by non-selection method. 2. Central Administration Tribunal, Madras Bench in O.A. NO. 900/2005 (S. Kalugasalamoorthy v/s. Union of India & Others) has set aside the O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 and held that when a person is selected on the basis of his own seniority, the scope of consideration and counting him against quota reserved for SCs does not arise. The High Court of judicature at Madras in the matter of UOI v/s. S. Kalugasalamoorthy (W.P. No. 15926/2007) has upheld the decision of the Central Administrative Tribunal.
3. The matter has been examined by the Hon'ble High Court in the light of the above referred judgments and it has been decided to withdraw O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 referred to above. It is clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owning to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders will take effect from 2.7.1997, the date on which post based reservation was introduced. Therefore this is not a act of nuisance by the Hon'ble Court but it is a reminder to those to face contempt if the directions are not implemented immediately. Let's wait for the days to decide not years anymore.

Hon'ble Apex Court in its judgement dated 29.09.2010 in the Civil Appeal No. 2379 of 2005 in the case of K Manorama on a exactly similr issue appears to be mis-interpreted by to the maximum extent in order to create a sense of haplessness by way of deprivation of legitimate benefit of SC& STs who have complete faith in the judiciary.
The issue pertains to the relevant time in November 1994, the appellant was working as a Chief Law Assistant which was a Group-`C' post in the Southern Railways. The post higher to this post is that of the Assistant Law Officer which is a Group-`B' post. At the relevant time the total cadre strength of Assistant Law Officers in Southern Railway was three. Initially when `Assistant Law Officer' was a single post cadre, in the year 1991, it was filled by an open category candidate. Subsequently, when two more posts were created in the year 1994, reservation was applicable. The posts were to be filled on the basis of seniority-cum-suitability. A notification holding 10 senior most candidates eligible for being considered for the two posts was issued on 10.11.1994. (The second respondent herein is the Chief Personal Officer of Southern Railways). To determine their suitability, a written examination was held. Eight Law Assistants obtained qualifying marks and became eligible for being called for the interview (one out of them opted out). The concerned committee recommended Respondent Nos. 3 and 4 for those two posts. Out of them, Respondent No. 3 is a Scheduled Caste candidate. Accordingly, the promotion order for both of them was issued on 26.5.1995.

"Ruling:Respondent No. 3 was selected basically because he was a Scheduled Caste candidate. In view of this position, there is no occasion to apply the instruction contained in Railway Board's letter dated 29.7.1993 nor the propositions in R.K. Sabharwal's judgment (supra) to the present case. "........
------------- An old issue juxtaposed by the sentiments of frustration....Thanks to Honble High Court Kolkata decision to withdraw O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005.

There is no scope of misinterpretation of Hon'ble Apex Court's judgement dated 29.09.2010 in the Civil Appeal No. 2379 of 2005 in the case of K Manorama. The relevant portion of the judgment is once again reproduced below.

"14. Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability."

There is no iota of doubt that the above pronunciation is clear enough to depict the observation of Hon'ble Court and the interpretation remains the same, no matter from which angle and with what mindset one tries to interpret it.

Dear friends,

It's interesting to note that the Apex court's decision has romp-in so much of discussions especially by my friend Shri Axis Panda. In this regard, may I take the oppurtunity to place my submissions on the said subject case matter.

Dear Mr.Reserved,
It is a great and detailed write up to understand the underlining point of the subject matter of case so easily. You have rightly placed the rationale of the K.Manorama case to those who are willfully interpreting in wrong sense. Those who are trying to limit the growth of the SC/STs within that 15% & 7.5% will never understand the real intention of various aspects of reservation. Any how hats off to you Mr.Reserved for your sincere effort to make others understand the plain meaning of the pronouncement with at most clarity. Let us hope it will reach those who are reading it with open mind. It is not the frustrated comments but the law of this land will prevail finally....It is not a trust but fact...
Keep up your efforts
with regards
samanyan

Thanks to the 'Reserevedman' for toiling so hard for uploading such a brilliant writeup. But hHon'ble Apex Court has held that and to quote
"Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability."
I do not find any discussion of applicability of such a provision (i.e promotion on own merit) to the micro portion of the order that "only in regard to recruitment by open competition". I do not think any promotion in case of government is done by open competion.

Mr.reserved interpretation of law is unlimited and for your kind attention please read the judgement of k.manorama carefully,

apex court had not mentioned that whether the said judement will have no any effect in present situation,any way eventhough it would have past judement of apex court it would have similar force as it has today.it is well setteled view that rules can not be made against the view of apex court.

best of luck Mr.Reserved.

You may get clapping from yours admirer,but think about its truthness.

Pl upload the judgment Kalugasalamoorthy v/s. Union of India & Others]