CHAPTER – III

 

RESERVATION ROSTER – POST BASED IMPLEMENTATION OF THE SUPREME COURT JUDGEMENT IN THE CASAE OF R.K. SABHARWAL VS STATE OF PUNJAB

 

OFFICE MEMORANDUM

 

                                                                                    DATED 2ND JULY, 1999.

3.1       On 2nd July, 1997 DOPT issued following O.M. regarding Post Based Roster:-

 

1.         “The undersigned is directed to say that under the existing instructions, vacancy based rosters have been prescribed in order to implement the Government’s policy relating to reservations of jobs for the Scheduled Castes, the Scheduled Tribes and the other Backward Classes.  The application of reservation on the basis of these rosters was called into the question before courts.  The Constitution bench of the Supreme Court, in the case of R.K. Sabharwal Vs State of Punjab as well as J.C. Mallick Vs. Ministry of Railways have held that the reservation of jobs for the backward classes SC/ST/OBC should apply to posts and not the vacancies.  The  court further held that the 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 reservation.  Thereafter, the rosters cannot operate and vacancies released by recruitment, resignation, promotion etc. of the persons belonging to the general and the reserved categories are to be filled by  appointment of persons from the respective category so that prescribed percentage of reservation is maintained.

 

2.         The court also 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 are not to be counted towards the quota meant for reservation.

           

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 O.M.  as Annexure-II, III and IV.  Similarly, the concerned authorities may prepare rosters to replace the existing 100-point rosters in respect of local recruitment  to Group C & D posts on the basis of the same principles.

 

4.         The principles for preparing the rosters elaborated upon  in the Explanatory Notes are briefly recapitulated below:

a)         Since reservation for OBC’s does not apply in promotions, there shall be separate rosters for direct recruitment  and for promotions;

b)         The number of point in the roster shall be equal to the number of posts in the cadre.  In case there is any increase or decrease in the cadre strength in future, the rosters shall be expanded/contracted correspondingly;

c)         Cadre, for the purpose of roster, shall mean a particular grade and shall comprise the number of posts to be filled by a particular mode of recruitment in terms of the applicable recruitment rules.  Thus, in a cadre of say, 200 posts, where the recruitment rules prescribe a ration of 50:50 for direct recruitment and promotion; two rosters – one for direct recruitment and one for promotion (when reservation in promotion applies) – each comprising 100 points shall be drawn up on the lines of the respective model rosters;

d)         Since reservation does not apply to transfer on deputation/transfer, where the recruitment rules prescribe a percentage of  posts to be filled by this method, such posts shall be excluded while preparing the rosters;

e)         In small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories.  In such cases, the administrative Ministries/Departments may consider grouping of posts in different cadre as prescribed in this Department’s OM No. 42/21/49-NSG dated 28.1.1952 and subsequent orders reproduced at pages 70 to 74 of the Brochure on Reservation for SCs/STs (Eighth Edition) and prepare common roster for such groups.  In the even it is not possible to resort to such grouping, the enclosed rosters (Appendices to Annexure-II, II & IV) for cadre strength upon 13 posts may be followed.  The principles of operating these rosters are explained in the explanatory notes.

 

5.         At the stage to initial operation of a rosters, it will be necessary to adjust the existing appointments in the roster.  This will also help in identifying the excess/shortages, if any, in the respective categories in the cadre.  This may be done starting from the earliest  appointment and making an appropriate remark – “utilised by SC/ST/OBC/Gen.”, as the case may be, against each point in the rosters as explained in the explanatory notes appended to the model rosters.  In making these adjustments, appointments of candidates belonging to SCs/STs/OBCs which were made on merit (and not due to reservation) are not to be counted towards reservation so far as direct recruitment is concerned.  In other words, they are to be treated as general category appointments.

 

6.         Excess, if any, would be adjusted through future appointments and the existing appointments would not be disturbed.

 

7.         All Ministries/Departments are requested to initiate immediate action to prepare rosters and operate them according to these guidelines.

 

8.         The existing orders on the subject are desired to have been amended to the extent herein.

 

9.         These orders shall take effect from the date of their issue.  However, where selections have already been finalised they need not be disturbed and the necessary adjustments in such cases may be made in future.   In other cases, recruitment may be withheld  till the revised rosters are brought into operation and recruitment effected in accordance with these instructions.”

    

3.2       The salient features of the Sabharwal’s case decided on 10.2.95are as under:-

 

The Constitution Bench of Hon’ble Supreme Court had held that the reserved  roster points should be determined on the basis of the posts and not vacancies.  The reservation has to be worked out in relation to the number of  posts which form the cadre-strength on the basis of laid down percentage. When all the reserve roster points in a cadre are filled up and the required percentage of reservation is achieved, roster does-not survive and it ceases to operate. Once the total cadre has full representation of the SCs/STs/Backward Classes in accordance with the reservation policy, then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. In other words,, after the cadre is filled  up as per  the roster, the reserved candidates secure the prescribed percentage of 15%,  7.5% and 27% for SCs, STs  and OBCs, (for direct recruitment only) respectively and the operation of the roster comes to an end. As and when vacancies arise subsequently, those  have  to be  filled  up respectively  by the candidates of respective category at  their earmarked slots, whether they be SCs,STs,OBCs (for direct recruitment  only) or  the unreserved class. If  the candidates belonging  to SCs, STs, &  OBCs  selected in their  own merit they shall not  be counted against the reserved quota. They should be appointed against the slots available for general candidates.

                       

3.3       The Committee observe that the Hon’ble Supreme Court’s  judgement in Sabharwal case reads as under:-

“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 Tribe 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 December 31.1994. 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 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 thereby 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.”

 

3.4       The Committee observe that the Hon’ble Courts has incorrectly assumed that vacation of the  posts will be done by the general candidates only and SC  and ST  candidates will not vacate any posts thereby they will get additional share  which is not belonging to them. In fact the under noted data produced on the table from 1.1.1951 to 1.1.1995 will clearly establish that the above postulation of the Hon’ble Court was totally erroneous.

           

3.5       Representation of SCs/STs in terms of Percentage in Central Government.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.6       It is stated that the case of Shri J.C. Malik Vs. Union of India Civil Appeal No. 2017 of 1978 was decided by the Hon’ble Supreme Court on 26.7.97 holding that the constitution Bench of Hon’ble Supreme Court has already approved the judgment of Hon’ble High Court/Allahabad in the case of R.K. Sabharwal and others Vs. State of Punjab, therefore, appeal dismissed. However, the Supreme Court has taken the note of the following contention of Additional Solicitor General:-

 

“That the application of this principle may create difficulties in cases where the total number of posts in the cadre is not sufficient for the application of roster in respect of the reservation for Scheduled Castes and Scheduled Tribe . By way of illustration, he has pointed out that under 100 point roster the reservation for Scheduled Castes can only be made at point No.7 while for Scheduled Tribes at point No. 14 and that if the strength of the cadre is less than seven there can be no reservation for Scheduled Tribes since the roster could not apply.”          

 

3.7       The Hon’ble Supreme Court observed that they did not propose to go into the contention at the stage which was not under challenge.

 

3.8       Mandal Judgement on Providing Reservation on Vacancies.

 

The Committee is aware that in Mandal case (Indra Sawhney Vs. Union of India & others) the constitutional validity of the DOP&T’s O.M. No. 36012/31/90-Estt.(SCT) dated 13.8.1990 and the O.M. No. 36012/31/90-Estt.(SCT) dated 25.9.1991 was  challenged. Para – 2(1) of the O.M. dated 13.8.90 specifically lays down that 27% of the vacancies in civil posts and services under the Government of India shall be reserved for socially and economically backward classes.   The Constitutional Bench of nine judges of Hon’ble Supreme Court examined these provisions and found the same constitutionally valid. Therefore reservation on the basis of the vacancy was upheld by the Mandal judgment. In fact the Committee are also aware that this position of the Mandal Judgement was relied upon by the Advocate who appeared in support of the vacancy based roster system and the Hon’ble Supreme Court held that Mandal judgement cannot be relied in support of the vacancy based roster because it lays down the law upto the stage till the prescribed percentage of reservation is achieved. Thus Court had pronounced the principle/law which will be applicable when prescribed percentage is achieved. The Apex Court held that the Indra Sawhney’s case is not authority for filling up vacancies against reserved points when the roster does not survive after cadre strength is full and prescribed percentage is achieved.  

                       

3.9       The Committee are aware that the 6 Judges of Supreme Court have upheld the scheme of reservation as conceived by the Govt. of India and notified vide OM dated 13 Aug., 1990. This  scheme has not been amended/modified by the Constitutional Bench in Sabharwal case. The Committee is of considered view that vacancy based reservation system as approved by 6 Judges  of Hon’ble Supreme Court cannot be given up till prescribed percentage is not achieved. Otherwise it will tantamount violation of law as laid down in Mandal’s as well as Sabharwal judgements.

 

3.10     The Committee note with great concern that the officials of DOP&T who were occupying the posts when this O.M.  was conceived put their heads together to conceive a scheme in the shape of present O.M. dated 2 July, 1997 which runs contrary to the Hon’ble Supreme Court’s judgement in Mandal as well as Sabharwal’s cases and thereby they misled the Cabinet as well as the Prime Minister. Therefore, the Committee recommend the prosecution of the above named officers under Section 4 of Chapter II of the Scheduled Castes and Scheduled Tribe (prevention of Atrocities) Act, 1989.

 

 

3.11     Vacancy Based Roster Were Found Valid By   Hon’ble Supreme Court.

 

The Committee also note that Roster was upheld as  constitutionally valid by Hon’ble Supreme Court  in the cases as detailed below:-

(a)             State of Punjab Vs. Hira Lal & Others – By Three Judges Bench  AIR 1971-SC-1977.

(b)        Arty  Ray Chowdhary Vs. UOI – By Constitutional bench of k5 judges – AIR 1974 SC  532-539.

(c)             Akhil Bhartiya Soshit Karamchari Sangh (Rly.) Vs. Union of India – By 3 Judges Bench AIR  1981 – SC – 298.

(d)            Hira Lal Vs  Distt. Sessions Judge Ghaziabad – By 2 Judges Bench – (1983) 3 SCC 371-373.

(e)             Parbhasah Chand Jain Vs. State of Haryana & others -        By 2 Judges Bench decided on 23.01.1995.

2.12               The  Committee have also gone into Hon’ble Supreme Court’s judgement of Prabhash Chand Jain Vs. State of Haryana decided on 23.2.1995 by the Divisional Bench of Hon’ble Justice Mr. P.B. Sawant and Hon’ble Justice Mr. B.L. Hansaria .Hon’ble Justice Mr. P.B. Sawant was one  of the judges in the mandal  judgment and Hon’ble Justice Mr. B.L. Hansaria was one of the judges in  R.K. Sabharwal case. In this case Hon’ble Apex Court observed that their experience shows that disputes of the reservation  arise mainly on account of either ignorance of authorities who issues these instructions in the matter  of reservation from time to time or on account of deliberate distortion of the law of reservation and the implementation of rules and instructions relating to reservation.

 

3.13          Hon’ble judges clarified the scope of Sabharwal’s judgment as under :-

“The last submission made by the learned counsel for the appellants and the respondent, State was that the recent judgment dated 10th February, 1995 of the Constitution Bench in R.K. Sabharwal and Ors. Vs. State of Punjab & Ors. Supports their contention, in as much as, according to them, as per the  said circular, the reservation policy is to be applied to the posts and not to the vacancies. We find no such observation made in the said judgment. In fact,  in the very beginning, the Court has stated that the expression “posts” and “vacancies”  are often used in the executive instructions providing for reservation problematical. The Court has then gone on to explain that the word “post” means the position to which the person is to be appointed. The vacancy means a non-occupied post or  office. The plain meaning of the two expressions makes it clear that there must be  posts to enable the vacancies to occur. The cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed  in respect of posts  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. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in posts has to be understood in that sense. It is not the contention of the respondent – employees belonging to the reserved category that the percentage of reservation is to be calculated the number of posts. However, while filling the posts, it is the vacancies which have to be taken into consideration and these vacancies have to be filled in, according to the roster points.”   

3.14     It has also been brought to the Committee’s notice that the Constitutional Bench of Hon’ble Supreme Court in Sabharwal case heard the matters on the controversy of whether the reservation is to be provided on the vacancies or the posts and in J.C. Malik case, Civil Appeal No. 2017/78 filed by Ministry of Railways was also heard alongwith R.K. Sabharwal writ Petitition (c) No. 79 of 1979. The Hon’ble Supreme Court has mentioned in para 9 (AIR  1995 SC 1371) that they do not see any infirmity in the Divisional Bench of Allahabad High Court judgement and that too without disposing of the civil appeal.. It is a well established tradition that if any appeal is pending against a judgement of High Court, such judgements are not referred to or be relied upon by the Apex Court. The Apex Court ignoring this well established tradition of the Court has made a mention of Allahabad High Court judgement without disposing the appeal. Thus, all pleadings contained in the appeal have not been considered in which it was brought out  that vacancy based roster do not allow multiplication of representation of SCs/STs  with the facts and figures of Union of India. As detailed in para 6.6, this civil appeal No.2017 of 78 had been disposed of by Divisional Bench of Hon’ble Supreme Court on 26.7.95 stating that the Hon’ble High Court judgement in J.C.  Malik’s case had been approved in the judgement of the Constitution Bench of Hon’ble Supreme Court in R.K.  Sabharwal case. Therefore, they directed the Appellent in the Union of India (Ministry of Railways) to follow the principle as laid down in R.K. Sabharwal. Thus the judgement of Sabharwal and J.C. Malik cases tantamount miscarriage of justice to the victim i.e. dalits and tribals.

 

3.15     MEANING OF THE ROSTER    

The Committee understand that the word “Roster” means a list or plan showing the turns for the reserved and non reserved candidates. This list/plan can be prepared on any number such as 40 numbers, 100 numbers, 120 numbers & 200 numbers etc. While finalizing the list or plan, the reserved roster points for reserved candidates are determined with reference to laid down percentage of reservation. The Committee has gone into 40 points plan (roster) which in use for giving effect to the promotion to SCs/ STs. On prescribed percentage of 15% for Scheduled Castes 6 (point No.s 1, 8, 14, 22, 28 & 36) were earmarked/allocated for SCs  and for STs on the prescribed 7.5% percentage of reservation 3 points (point Nos. 4, 17 & 31) were earmarked for STs. Thus, in  total 9 points were reserved for SCs/STs altogether in the 40 points roster.

 

3.16          The Committee note that points No. 1,8,14,22,28,36 had been earmarked for SCs and roster points No. 4,17 & 31 have been earmarked on the 40 Points Roster for STs. The Committee also note that between reserved and non reserved points adequate gap was kept so that it may not happen that at a time all the vacancies may fall on  the reserved points and such a large number of vacancies may violate the general principle of maximum reservation  of 50%. The reservation prescribed by every appointing authority to maintain a uniformity of the system as well to achieve the prescribed percentage of representation as per constitutional provision.  

 

3.17          It has been noted by the Committee that the Hon’ble Supreme Court in Sabharwal case has examined the 100 points roster of State of Punjab in which prescribed percentage of reservation was 14% for SCs in Class I services and 2% FOR THE Backward Classes and rosters point Nos. 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, 91 were allocated to SCs and Serial No. 26 & 76 were allocated to Backward Classes.

 

3.18     GENESIS OF VACANCY BASED ROSTER

The Committee have been informed that the vacancy based rosters were introduced for the first time by Ministry of Home Affairs in January, 1952 which continued upto 1st  July 1997. The object of model roster was to give proper effect to the reservation prescribed. Every authority was required to keep the vacancies as reserved or unreserved according to the model roster. The model roster  had undergone changes from time to time and the last vacancy based rosters which were in existence are as follows:-

(i)             Direct recruitment : All India 200 point roster in which 30 points for SCs,15 for STs & for OBCs were earmarked,

(ii)            100 point regional/local rosters were applicable for the recruitment to vacancies in grades, the starting  Pay scale of which was less than Rs. 1400 (RPS). The percentage of reservation was on the local/regional basis i.e. as per representation of SCs/ STs  & OBCs in the area concerned.

(iii)           40 points roster for promotional posts in which 6points were earmarked for SCs & 3 points for STs to provide 15% & 7.5% reservation to SCs & STs  respectively.

 

3.19     The Object the of Vacancy Based Rosters :-

                The objective of vacancy based roster was:

(a)             To facilitate the calculation of reservation and to overcome the problem of fraction number on percentage basis;

(b)            To ensure the gradual change.

 

3.20          As per reply furnished by the Secretary, DOP&T it isclear that the opinion of Ministry of law, Justice & Company Affaris was obtained by them which indicates as under:-

(a)               A note dated 12.4.96 was sent by DOP&T about the implementation of     Hon’ble Supreme Court judgment of R.K. Sabharwal.

(b)            The note further indicates that once all reserved vacancies are filled up and the rosters have been completed then further promotion will not be governed by the rule of 50% as the subsequent vacancies are required to be filled up only by candidates from the category who are vacating the same, meaning thereby the principle of replacement/substitution  will be applicable while filling up these reserved/non-reserved slots so vacated which will ensure the equity and balance the position between the reserved & non reserved candidates by maintaining the prescribed representation.    

(c)             In each cadre, posts will be alloted to each reserved category i.e. SC/ST/OBC on the basis of prescribed percentage. Those reserved category candidates who are appointed on merit will be counted against the general category and be replaced by general category and they will continue to enjoy reservation in promotion during their career. 

           

3.21          The Committee have gone into the first important issue whether the Constitutional Bench of Hon’ble Supreme Court in Sabharwal case has laid down any law that the vacancy based rosters are required to be replaced by the post based rosters ignoring the Mandal judgement in which reservation on vacancies are to be provided. Hon’ble Supreme Court in their judgement, laid down very clearly and specifically without leaving any scope of any ambiguity that the existing rosters continue till the prescribed percentage is not achieved. This finding of the Hon’ble Apex Court was also mentioned in the2nd July’s O.M. but why existing rosters were abandoned is not known specially, when Court’s orders/directions were for its operation rather than for formulation of new rosters

 

3.22     The Secretary, Legal Affairs in this regard has given his opinion as under:-

“……….. Hon’ble Supreme Court in R.K. Sabharwal case not specifically directed that existing roster be revised to give effect to its judgement.”

 

3.23     The Committee observe that the existing rosters were discarded by DOP&T not due to the fact, they were required to be given up as per Court’s judgement but to fulfill the design and scheme vide which the scope of reservation policy should be reduced. The Committee are of considered view that old rosters which were serving the object for which they were devised and the lower echoleons of the government machinery was fully acquainted and conversant with their operation were discarded thereby creating upheaval in the operation of roster system. By giving up the old system  and introducing new system/new roster stated to be post based rosters in such a complicated manner which even today after three year are not understood, not only by lower echoleons of the government functionaries but even by the middle and higher management group of the government servants because they are so complicated, immense difficulties have been created in the operation of roster harming the interest of SCs/STs only. The Committee in the light of the above, recommend that the rosters existing prior to 2nd July, 97 should be allowed to be operated till the period the prescribed percentage of reservation is achieved. This will relieve the large majority of the dalits and tribes, who feel that this mischief of abandoning the old roster and introducing the new roster was with a mischievous  object of reducing the scope of reservation.

 

3.24     The Committee are of considered view that the only simple directions are required to be given that  in a particular post/grade, reservation to SCs, STs & OBCs are required to be worked with reference to number of posts which form the cadre strength with reference to prescribed percentage of reservation. If the number of reserved posts are worked out in fraction number, the 5 or above may be rounded of to the full number subject to the condition that overall reservation may not  go more than 50% which is an upper limit prescribed for laying down the reservation.  In a small cadre for promotional posts where reservation cannot be provided, the reservation may be kept on  the progressive rotational roster of 14 posts and to be operated in such a manner which may not create any difficulty as detailed below.

1.         OC (Other Community)                        9.         OC

2.         SC                                                       10.       OC

3.         OC                                                      11.       OC

4.         ST                                                        12.       OC

5.         OC                                                      13.       OC

6.         OC                                                      14.       OC

7.         OC

8.         SC

           

3.25     In the same way for direct recruitment posts filled up on all India basis, reservation has to be provided on 14 number of posts where the share of SC/ST/OBC comes to 2.1 posts for SCs, 1.05 posts for STs  & 3.78 posts for OBCs which may be rounded off 2,1, and  4 posts respectively. Thus, total reservation will come to 7 posts. The reserved roster points in 14 point rosters will be – Point No. 4,6,10,14 for OBCs, Points No.2 & 12 for SCs  & Point No. 8 for ST.

 

3.26     Bifurcation of cadre posts

The Committee also examined the various principles elaborated in the above said OM.   One of the principles is the principle of bifurcating the cadre/posts existing in a grade as per percentage laid down for filling up the posts such as by direct recruitment, by promotion by means of seniority cum suitability(seniority cum merit) and selection (merit cum seniority) in the ratio of 20:40:40 or 20% (Direct recruitment), 40% (By Seniority cum suitability) & 40%(By selection) respectively.  The cadre has to be divided in the same ratio/percentage in three portions and three rosters have to be prepared. By this process cadre size is reduced thereby they become small cadre due to bifurcation.  This process of bifurcation has serious implications on the reservation of SCs/STs  and more seriously in case of OBCs.  In the case of SC/ST, this bifurcation may affect their reservation percentage if  reserve posts are coming in fraction number.  Because if fraction number comes into less than  .5 and the same have to be dropped  on the universally  accepted principle of rounding off which may be required to be done two/three four times this may reduce the scope of reservation.  This can be better illustrated by following example.

Suppose a State lowest rung of I.A.S. cadre in which reservation rules are applicable, consists of 65 posts and these posts are filled up by under noted modes on the following predetermined percentage:-

            Direct Recruitment                    =          20%

            Seniority cum suitability =          40%

            Selection                                  =          40%

 

3.27     As per bifurcation principle 65 posts are bifurcated and reservation will be kept as under:-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.28     The Committee note from the above illustration  and table that on cadre of 65 reservation have been allowed on the basis of DOP&T’s post based roster as under SCs=7, STs=3 & OBCs=3, Total 13.  Whereas if reservation would have provided on total cadre of 65 posts it would have come as under.

SCs @ 15% = 9.75 = 10, STs @ 7.5% = 4.875 = 5, OBCs @ 27% = 17.55 = 17, Total = 32 (17.55 is not rounded off as 18 because if reservation to be kept at 18 posts it  would exceed upper limit of 50% as it would come to 33 posts).

           

3.29     The Committee note that reservation quota is drastically reduced by following the principle of bifurcation which was not ordered by any court in any of judgements but the same have been devised to reduce the scope of reservation.  The object of distribution of posts would have been easily achieved by ordering that reserve quota posts will be calculated on total cadre and be distributed in ratios/percentages as laid down for filling of these posts.  The Committee note the drastic reduction of reserve quota from 32 to 13 which means curtailment to the extent 60.60% from original envisaged quota or in other words  bringing down to 39.40% level by merely applying the principle of bifurcation which is not in pursuance of any court’s judgement.

           

3.30     The Committee has already taken a note of earlier DOP&T OM dated 13.8.1990 and Hon’ble Supreme Court judgements in Mandal’s case in which specific directions were to implement the instructions of this OM without any modification and is greatly concerned about the willful disobedience and disrespect  of six judges directions which is nothing but contempt of Hon’ble Supreme Court.  Therefore, committee recommend the prosecution  of  concerned officers under Section 4 of Chapter II of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.

3.31     It has also been bought to the notice of the committee that DOP&T bureaucracy was well aware that operation of the principle of bifurcation will not be  workable and pose the practical difficulties because Recruitment  Rules are based on vacancy based principle meaning thereby that whatever vacancies may be occurring in a unit of year or otherwise are to be distributed in percentage/ratio basis if these vacant posts are required to filled up by  more than one mode such as recruitment/promotion/transfer/deputation.  Thus in the bifurcated cadre, number of reserved as well as non reserved candidates may not be there in the same prescribed  proposition/percentage/ratio.

 

3.32     It has been brought to the notice of the Committee that DOP&T issued further instructions on 25.5.98 ……. (OM No.AB-14017/2/97-Estt(RR) dt  25.5.98…..) as under.

 

“The Supreme Court in its judgement in R.K.Sabharwal’s case has ruled in favour of a change over from the existing “vacancy” based reservation roster to post based roster.  Under the existing policy the determinations of the different quotas for recruitment is vacancy based.  In order to comply with the aforesaid Supreme Court judgement, which has been implemented vide the DOP&T OM No. 36012/2/96 Estt.(Reservation.) dated the 2nd July, 1997 it will be necessary to amend the existing service Rule/Recruitment  Rules under Column II of Annexure  - I in the DOP&T’s guidelines dated the 18th March, 1968 to replace the words percentage of the “vacancies” to be filled by various methods by percentage of the “posts” to be filled by various methods.

 

3.33     The necessary amendments so far in the Service Rules/Recruitment Rules have not been carried out by Ministry of Railway which control major chunk of manpower.

The Committee recommend that this bifurcation is unachievable/not practicable as well as violative of Mandal’s judgement, therefore, be given up with immediate effect.

3.34     Shifting the Reserve Roster Points

The Committee have also gone into the new post based roster    in which reservation for SCs/STs have been shifted.  The important point in this regard is that whether reserved roster points are required to be changed even though there is no change in the prescribed percentage of reservation for SCs/STs.  The obvious answer is that when the percentage is not revised and reservation is not introduced for any new category, there is no need or justification to modify, amend or shift the reserved roster points because there is no necessity nor the need for such changes as justifcation for the same do not exist.

 

3.35     The reserved roster points for SCs/STs have been fixed in the earlier rosters existing prior to 22nd October, 1993 keeping in view the constitutional object of achieving the prescribed percentage of representation at the earliest possible time because they were the class/people who were denied and deprived of such opportunities for centuries together.  Therefore, their priorities were kept at a higher level.  This principle is very much visible in the 40 points roster in existence both for recruitment (for the posts filled up by All India Competition) and promotion.  The roster points for SCs  were 1,8,14,22 , 28 and 36 = 6 (@ 15%).  In the same way roster points for STs  were 4, 17 and 31=3 (@7.5%).  They were not fixed on the basis of their entitlement which may have fallen for Scheduled Castes at 7,14,21,28,35 & 40.  In the same way for STs this entitlement would have been at a gap of 14 number meaning thereby 14,28 &40.  If this entitlement would have been a consideration in 40 Point Vacancy Based roster, then for roster points 14,28,40 candidates of both the classes (i.e. SCs  and STs) would have become entitled and to avoid this situation solution would have been to provide the reservation to STs either one point  earlier of 14,28&40 i.e.13,27&39 or at a subsequent point i.e. 15,29 but the last point would have been 39 only.  The earlier rosters were designed and devised keeping in view the priority and the facts that there should be adequate gap so that reserved points may not come together at some points.

 

3.36     The Committee have looked into the aspect of fixing the roster points and comparing the same with the old and new roster for the cadre size of 40 posts as under:-

 

 

 

 

 

 

 

 

3.37     From the above table it is evident that not only roster points have been shifted but the scope of reservation has also been reduced drastically from 15% to 12.5% for SCs in the cadre size of 40 posts. The reservation worked out @15% on 40 posts is not in fraction number and so question does not arise for reducing the scope of reservation.

           

3.38     It has also been brought to the notice of the Committee that DOPT vide OM No.36012/22/93-Estt.(SCT) dated 22.10.93 has given up the old 40 points roster for recruitment category which was applicable for the posts filled up by all India competition basis and in its place prescribed the 200 points rosters in view of the fact that reservation to OBC was given effect to and due to which revision became necessary. The revised roster points fixed in the 200 points roster which came into effect on 22.10.93 and the revised roster points as laid down in the new roster of 2.7.97 are reproduced below:-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.39     From the above table it is evident that earlier principle adhered to in fixing the roster points were in respect of both for SCs and STs and in fact reserve roster points were further pushed up from 8 to 7, 14 to 13, 22 to 21; 28 to 27; 36 to 35 for SCs, whereas for STs  from 4 to 3 in the 200 point rosters.  Thus, priorities continue to be kept in view.

 

3.40     The Committee note that it is only in the new roster which came in existence w.e.f 2.7.97, the priorities have been shifted by changing the roster points by pushing down the reserved roster points from 1 to 7, 7 to 15, 13 to 20, and so on for SCs, and for STs  from 3 to 14, 17 to 28, 31 to 40 and so on when the earlier 200 Point Roster is compared  with the new 200 Point Post based Rosters.

           

3.41     The Committee have considered the consequences of pushing down the roster points in revised roster.  This has resulted into that the percentage of 15% and 7% for SCs & STs respectively would reach only when the ultimate recruitment/promotion reaches 200 points and not before that.  On the other hand operation of old roster was accelerating the filling up of the quota of posts to the reserved categories reaching the prescribed percentage earlier.

3.42     The Committee have specifically asked vide point No.4 for pushing down the priority for SCs  & STs and reasons and justification for the same, but no satisfactory reply was furnished in this regard by the DOP&T.  The Committee have to draw the conclusion that these priorities have been pushed down for SCs & STs with a view to give due preference to their own class and clan (i.e. general category) by giving up the earlier principles in fixing the reserved roster points.  The Committee are of considered view that this was done with a pre-conceived notion to fracture the reservation policy.  The Committee, therefore, recommend that the revised roster points for the SCs/STs/OBCs which came into existence w.e.f.22.10.93 should be reviewed and the new roster points which came into existence w.e.f. 2.7.97 should be discarded with a view to restoring the benefits enjoyed by them prior to 2.7.97.

           

The concept of Adequate Gap between Reserve and Non-Reserve Points  thereby violation of 50% Rules.

           

3.43     The Committee have also noted the variance in the present roster points when compared with the earlier rosters.  The earlier roster were purposely devised in such a manner that adequate gap between reserved and non-reserved roster point was ensured and, therefore, reserve points were not falling in continuation.  This was done as the then bureaucrats were well aware of the serious consequences  which may follow if the roster points are kept together which may result in causing the reserved posts coming together in a large number at a time which may be violative of the principle of 50% upper limit of reservation laid down by Supreme Court in different cases.  Thus to avoid that situation and to have an adequate opportunities of recruitment/promotion in equitable manner for reserved and non reserved candidates adequate gap was kept between reserve and non-reserve points. This principle has been given up in the present roster and reserved  roster points have been kept together for recruitment as well as promotional categories.  The Committee will like to quote such instances from the direct recruitment roster as under:-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.44     The illustrations quoted (a) to (f) above is not the exhaustive list of clustering but they are illustrations and they are series of clustering of roster points.

It has been explained to the Committee by Secretary DOP&T in reply to point no.5 that the ratio of the judgement in the Sabharwal case is that the reservation at no point exceed the prescribed perecentage.  In the light of this ratio new post based roster could not provide excess reservation at one point and offset that excess at  a later stage as was done hitherto.  Therefore practice of keeping adequate gaps between reserved and unreserved point has not been found practicable at a number of stages in post based roster.

3.45     The Committee have gone into the reasoning and justification extended by the department and do not find the same as justified and reasonable explanation. The Sabharwal  judgement lays down the principle that the reservation have to be determined with reference to the laid down percentage on the cadre existing in the cadre and when prescribed percentage of the reservation is achieved the running accounts have to come an  end and thereafter posts have to be filled up on the principle of substitution or replacement principle. Hon’ble Supreme Court has not laid down any principle that at every point of time reservation should not exceed the prescribed percentage.  This is a total erroneous conclusion drawn by the bureaucracy just to increase the litigations between the reserved and non reserved category candidates and thereby sabotage the smooth operation of the reservation rules. An appropriate responsibility has to be fixed up for drawing an incorrect and erroneous conclusion and understanding of the judgement.

           

Squeezing

3.46     It would be noted that at the end of the roster “squeezing” has been done for the reserved categories to reach the number of posts to be reserved for them without violating the 50% limit laid down by the courts.  While drawing up rosters, the cadre controlling authorities should similarly ‘squeeze’ the last points of the roster.  Such squeezing may not, however, be done where it would violate the rule of 50%.

           

3.47     The Committee are of the view that above squeezing instructions are highly ambiguous and can not be understood by a man of ordinary prudence.  What is the meaning and scope of these instructions?  Its dictionary meaning is “pressing” “subjecting  to extortion”, “forcing”.  “Wring” which means “twisting”.  From the above dictionary meaning, Committee are unable to appreciate the scope and meaning of these instructions.

3.48     The Committee sought clarification vide point No.5 as under “Whether OM No. 7/2/55-SCT dated 14.10.55 lays down the principle that for calculating the number of vacancies to be reserved in each model roster, a fraction below 0.3 will be ignored and fraction of 0.3 or above will be rounded off to higher integer.  Whether DOP&T have followed this principle while revising the new roster.”

 

3.49     In response to above Point the written reply was given as under:

           

“However para 8 of explanatory note at Annexure I of the OM dated 2.7.97 provides for rounding of towards the end of the roster in order to reserve the required number of posts for reserved categories at the prescribed percentage without violating the 50% ceiling”.

 

3.50     Committee are of definite view that no one can draw above meaning from the words and phareses used in above said para ‘8’.  It is very obvious that when these bureaucrats saw no escape route, They thought that by this explanation they can escape the responsibility for the obvious lapse.  If they intended that the principle of rounding off will be adopted by them, they would have written very clearly and specifically that principle of rounding off have to be adopted if the posts are coming in fraction numbers, because in human affairs, absolute arithmetical accuracy is impossible.  This rounding off principle is an universal principle i.e. the principle of ignoring the fraction number less than 0.5 and taking 0.5 and above as full number.  This universal principle appears to be equitable, just and blancing both for reserve and non reserve categories.  The reserve categories are not always gainer as is obvious from the undernoted table:-

 

 

 

 

3.51     Government orgnizational set up is always pyramidical, therefore, posts in Supervisory/intermediate grades are bound to be less in number.  This percentage of reservation on the posts will tantamount to deprivation of reservation benefit which is not the intention of Government policy.  Government policy is not only to provide reservation in quantitative terms but also in qualitative terms so that the SCs/STs /OBCs are not deprived of their due share in management of State affairs, powers in decision making and are allowed to participate in State management.

 

3.52     Earlier the Committee took note of the contention of Additional Solicitor General that in the cadre of less than 14 posts, no reservation can be provided to the Scheduled Caste.  Similarly, for Scheduled Tribe no reservation can be provided in cadre consisting of less than 14 posts as rosters can not be applied in such cadres.  To provide reservation in small cadre, para 4 of O.M. lays down as under:

“In small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories.  In such cases, the administrative Ministries/Department may consider grouping of posts in different cadres as prescribed in this Department’s O.M. No. 42/21/49-NGS dated 28.1.1952 and subsequent orders reproduced at pages 70 to 74 of Brochure on reservation for Scheduled Castes & Scheduled Tribes (Eight Edition) and prepare common rosters for such groups.  In the event it is not possible to resort to such grouping, the enclosed rosters (Appendices to Annexures – II, III & IV) for cadre strength up 13 posts may be followed.  The principles of operating these rosters are explained in the explanatory notes.”

 

3.53     Para 12 of Explanatory Notes of Annexure I of OM lays down as under:

 

“In the case of small cadres (upto 13 posts), all the posts shall be earmarked on the same pattern as in the model post based rosters.  Initial recruitment against these posts shall be by the category for which the post shall be by rotation as shown horizontally against the cadre strength as applicable.

 

3.54     On the basis of these instructions a separate roster has  been laid down as under:-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.55     1 for Cadres, 2 to 13 posts the rosters is to be read from entry 1 under column cadre strength till the last post and then horizontally till the last entry row i.e. like “L”.

 

 

 

2.         All the posts of cadre are to be earmarked for the categories shown under column initial appointment.  While initial filling up will be by the earmarked category, the replacement against any of the posts in the cadre shall be by rotation as shown horizontally against the last post of the cadre.

 

3.         The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% representation of reserved category.

From the perusal this L shape Roster Reserve Points are kept as under:

 

            1.         At Rotation 4 – OBC

            2.         At Rotation 7 – SC

            3.         At Rotation 8 – OBC

            4.         At Rotation 12 – OBC

            5.         At Rotation 14 – ST

 

3.56     It is obvious that Roster is prescribed for the posts upto 13 but there are 14 rotation.  The quota posts in 14 rotation of 15% SCs,7.5% STs and 27% OBCs works out as under:

SCs      =          2 posts

STs      =          1 posts

OBC    =3.78=4 posts

 

3.57     The, Committee note with conern that reservation have been reduced for SCs to 7.5% from 15% by keeping only one post in the newly devised roster.  In the same way reservation for OBCs have been reduced to 23.76% from 27% thereby ensuring two more posts for non-reserved categories, for Scheduled Castes the reservation on 14 rotation is worked out to full number i.e.2.  Thus this reduction can not be understood due to the applciation of reservation rules.  The Committee are of the view that this jugglery has been done with a view to reduce the scope of reservation and make the system so complicated that it may become very difficult to

operate the rosters.  The Committee have already mentioned  that 14 Rotation Roster could have been prepared in the manner in which reserve and non reserve point would have arranged without violating rule of 50% upper limit of reservation.  This model Roster would have been as under:-

 

 

1.         OC (Other Community)

2.         SC

3.         OC

4.         OBC

5.         OC

6.         OBC

7.         OC

8.         ST

9.         OC

10.       OBC

11.       OC

12.       SC

13.       OC

14.       OBC

 

This rotation is more logical and balancing between the reserve and non reserve points.  The Committee, therefore, recommend that Government should immediately revise the rotational roster and restore the prescribed reservation particularly for Scheduled Castes and which has been reduced by bureaucracy and make system simple and user friendly.

 

3.58     The Committee note that based on the Supreme Court judgement on 10th February, 1995 the above OM was issued by DOPT on 2nd July, 1997 which says that the existing vacancy-based roster system should be converted or replaced by post-based roster system.  The judgement of the Supreme Court contemplates the elimination of roster system when the prescribed percentage of reservation is achieved.  This is the precondition which the Supreme Court has put in its judgement.

 

 

 

3.59     The Committee wanted to know whether the Department of  Personnel and Training (DOPT) has certified on record that in view of the requirement of the Supreme Court judgement in Sabharwal’s case, the prescribed percentage or reservation of SC/ST is complete.  In reply the Secretary, DOPT stated during evidence that the essential feature of the judgement is that the reservation should be with reference to the posts and not with reference to vacancy.  Another highlight of the judgement is that the representation of each of the reserved category should not exceed the prescribed percentage of reservation.  Thirdly, the reserved category candidates who filled up posts, based on their own merit will not be treated against the reserved vacancies.  Fourthly, the running account will be stopped only when the reserved percentage is reached.  The representative further stated that there would be a gap at the moment in achieving the prescribed percentage whereas we have the post-based roster and promotions are made against those posts, the required level of reservation would be reached.  After the prescribed percentage is reached, that would be maintained by the principle of replacement, vacancies being filled up accordingly.  That was the rationale for issuing this (OM).

 

3.60     On being asked further how the Ministry (DOPT) is going to ensure that the quota is filled up at the earliest.  In reply the Secretary, DOPT stated that as per the Sabharwal Judgement, the quota should not exceed the prescribed percentage.  He further stated that it would be ensured that prescribed percentage of reservation would be achieved by this OM and in no case the prescribed percentage would increase.”

           

3.61     In connection with this point the Secretary DOPT, stated during evidence, “keeping in view the constitutional provision, the Supreme Court held that in any examination which is held in any year, the reservation should not be more than 50%.  But you are very right that there is a backlog of vacancies which is to be filled upto 15% for SC and 7.5% for STs and 27% for OBCs.  Of course, the reservation for OBC came late, so that will take time.  Now this issue is exercising the mind of the Government.  That is why we sought the help from the Attorney-General.  Earlier, we were clearly told by the Department of Legal Affairs that keeping in view in Supreme Court Judgement, we cannot give more than 50% reservation.  That came in the way of filling up the backlog vacancies.

 

3.62     When the Committee specifically asked whether in the Sabharwal’s judgement the Supreme Court said that 200 point roster be introduced with immediate effect, the Secretary DOPT replied.  That it is not necessary for the Supreme Court to lay it down.  We have devised the 200 points roster in order to implement the Supreme Court Judgement.  It is a methodology.”

 

3.63     The Committee note that the OM dated 2.7.97  has been issued by taking adverse points of the Supreme Court judgement in R.K. Sabharwal Vs State of Punjab and J.C. Malik Vs Ministry of Railways.  The Committee also note that as per the judgement of the Supreme  Court the vacancy based roster is to continue until the representation of Scheduled Castes/Scheduled Tribes in the cadre reaches the prescribed percentage of reservation.  Once the prescribed percentage of reservation is reached, then the vacancies released thereafter are to be filled by appointment of persons from respective category (reserved or general) following post based roster.  The Committee also note that the Supreme Court did not direct the Government to make modifications to the existing roster.  The Committee further note that the Sabharwal’s judgement has neither prescribed for implementation of 200 point roster nor it has prescribed for immediate implementation of the new roster.  The Committee are constrained to note  that DOPT without proper understanding of the Supreme Court judgement has changed the vacancy based roster  to post based roster by issuing the OM dated 2.7.1997.  The Committee, therefore, recommend that the roster points as were being implemented in the old vacancy based roster be continued until the required percentage of reservation for Scheduled Castes/Scheduled Tribes is reached in all grades of posts and the O.M. issued on 2.7.97  immediately be withdrawn.

 

Transfer on Deputation/Transfer

 

3.64     The Committee have also gone through the instructions in regard of appointments made by transfer/ on deputation.  The Committee note that those instructions are to be kept out of the reservation policy.  These instructions contained in para 49(e) of the OM are reproduced as under:

“Since reservation does not apply to transfer or on deputation where the recruitment rules prescribed a percentage of posts to be filled by this methods, such posts shall be excluded while preparing the roster.”

 

3.65     The Committee note that the principle of exclusion of appointments made by deputation or by transfer from reservation policy was based, when reservation have to be provided on vacancies and not to be measured with reference to posts in a cadre.  The application of new principles of law as laid down by Hon’ble Supreme Court will have serious repercussion on representation of SCs/STs in a cadre at this prescribed percentage.  Therefore, the Committee recommend that these instructions should be immediately withdrawn so that adequate representation of SCs/STs is ensured as per prescribed percentage.

 

3.66     As regards the candidates coming under Merit the OM in Para 5 says that:-

 

“In making these adjustments, appointments of candidates belonging to SCs/STs/OBCs which were made on merit (and not due to reservation) are not to be counted towards reservation so far as direct recruitment is conerned.  In other words, they are to be treated as general category appointments”

3.67     The Committee pointedly asked in a  written clarification from DOP&T vide point nos. 16 & 17 preliminary material which are as under.

 

            Hon’ble Court held that persons belonging to the reserved categories appointed on the basis of merit and not on account of reservation, are not to be counted towards for reservation.  This principle has been ignored while implementaing the Supreme Court’s decision in promotion category posts as is evident from para No.5 of the above said O.M. that the benefit of the Supreme Court’s judgement has been restricted towards the recruitment category posts and not allowed to the promotional category posts whereas Supreme Court’s decision in R.K. Sabharwal’s case was basically for promotion category posts.  Thus, there is a partial implementation of the judgement which is deterimental to the interest of the SCs/STs and does not allow the benefits to the SCs/STs which were permitted by the Supreme Court.

 

In reply it was stated that, own merit concept is not practicable in promotion for following reasons:-

 

            Relaxations in qualifying marks and standard of evalution are not permissible.  So there are no candidates with relaxed standards to be adjusted differently like direct recruits.”

 

3.68     This point was also got clarified from Secretary, Legal Affair’s who advised the Committee in his written reply as under:

 

            “As per the Supreme Court judgement, both direct appintees and promotees belonging to the backward classes appointed against the general category posts on merit cannot be adjusted against the reserved posts and they will have to be adjusted against general category posts.  Therefore, para 5 of the O.M. under consideration is contrary to the above holding of the Supreme Court.”

3.69     The Secretary, Legal Affair’s advice is also confirmatory to the contents of para 2 of the O.M. in which principles of Sabharwal’s case as laid down by Hon’ble Supreme Court.  The relevant portion of para is reproduced below:

           

The Court also 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.

           

3.70     The Committee are aware of series of judgements of Hon’ble Supreme Court & lower Courts such as Central Administrative tribunal  in which the above principle of law have been repeated/reiterated.  Some of the judgements are reproduced below:

 

3.71     The question of exclusion of meritorious candidates (SCs/STs) has been arisen in V.Lakshminarayan Vs. UOI & others decided on 22.2.92 by the Full CAT Bench of Hyderabad vide Para 33 of the judgement which lays  down as under:

“So in computing the total number of SC  & ST  candidates in a particular cadre for ensuring the reservation with the maximum percentage, care should be taken to see that the SC & ST candidates, who got their selection and appointment to that cadre on merit by competing with members of non SC and non ST candidates are not reckoned under reservation.”

 

3.72     In this regard the Constitutional Bench of Mandal judgement have taken a view which is as under:-

 

            (“94-A)  In this connection it is to remember that  Article 16(4) do not operate like a communal reservation.  It may well happen that some members belonging to, Scheduled Castes Scheduled Tribes get selected in the open competition filled on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes & Scheduled Tribes they will be treated as open competition candidates.  (AIR 1993 SC 477).

 

3.73     This question was again came under consideration before the Supreme Court in the case of Union of India Vs. Virpal Singh Chauhan in which the Hon’ble Court has laid down vide para 29(I) as under:-

 

            “While determining (the said number), the candidates belonging to the reserved community but selected/promoted on their own merit (and not by virtue of rule of reservation) not to be counted as reserve candidates.”

 

3.74     The CAT/Madras in the case of A.Gandadharan Vs. Union of India also laid down vide para 10 as under:

 

            “The instructions of the Railway Board referred to above also, reflect  the pronouncments of the Supreme Court, particularly the one in R.K. Sabharwal and others Vs.  State of Punjab & others (1995 SCC(L&S) 548) wherein the Supreme Court held that those reserved category who had come on merit in non reserved posts cannot be counted for working out reservation and that prescribed percentage of reservation had to be given, excluding those who had come on merit.”

 

3.75     This question was again deliberated in the CAT Principle Bench, Delhi in the case K.P. Suman Vs. UOI through GM(P)/Northern Railway (OA No. 11614/1992) and decided on 16.12.97.  In this case Hon’ble Tribunal held as under:

           

“The SC candidate who by dint of his performance cleared the selection as per general standard will occupy one of the six general vacancies.”

3.76     The Committee considered this question in the light of para 2 of O.M.  where Hon’ble Court’s decision has been quoted by stating that persons belonging to 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.  This very basic principle laid down by Hon’ble Supreme Court has been given a decent burial in case of promotion posts by laying down the principle in the O.M. that SCs/STs /OBCs who are appointed on merit are not to be counted towards the reservation under law so far as direct recruitment is concerned.  It means that this principle of merit will not be applicable in the case of promotional categories posts whereas Sabharwal’s judgement was exclusively for promotional posts and the principle laid down for exclusion of the merit candidates of the reserved categories was without any distinction for recruitment & promotional posts and applicable to both promotional posts and recruitment posts.  It is noted that Ministry of Legal Affairs while advising on this aspect have clearly given their view and advised that reserved candidates who make it on merit will be counted as general candidates and will be replaced by general categories, however they will continue to enjoy their promotion during their career.  The legal advice has been conveniently brushed aside because it was favouring the Dalits and Tribes in the promotional category posts.

 

3.77     The above said O.M. also contains the instructions for its operation and states that this would be done starting from the earliest point while making an appropriate remarks utilized by SCs/STs /OBCs/General  as the case may be against each point in the roster.  But they have not given any instructions for exclusions of the meritorious candidates of the reserved class not to be adjusted against the reserved roster point.  Thus this is a partial implementation of the judgement which is deterimental to the interest of SCs and STs and not allowing the benefits which are flowing from the Supreme Court’s judgements itself.  This is a major lacuna in the OM as no relaxation is given in case of a reserved class candidate promoted to a higher grade on the basis of his own merit at par with general candidate ought to be adjusted against a general post only as per R.K. Sabharwal’s case.   In other words, such promoted / appointed candidates  should not be counted/adjusted against the reserve quota at any subsequent stage.

 

3.78     The All India Confederation of SCs/STs  Organisations also brought to the notice of the Committee as under:

 

“Dubious Methods Adopted for Curtailing Rights of Dalits & Tribes by DOPT”.

 

“We regretfully mention that the DOP&T have adopted dubious methods and ways for curtailing the scope of the reservation.  For the Comptroller and Auditor General’s circular No.9/NEG/98 No.108NEG(App) 3-97 dated 23.1.98 which has been published in the Swamy”s booklet names as Swamy News of April 98, stating that SCs/STs promoted on merit will not be counted as general candidates.  Further, the  circular mentions that in consultation with  DOP&T it is clarified that SCs/STs who are promoted as  general candidates will be required subsequently to be adjusted against reserved posts totally ignoring the Constitution and constitutional provisions in this regard.  In this connection there are several judgements including judgements of Mandal Case as well as R.k. Sabharwal’s that reservation do not operate like communal reservation.  It may so happen that some of the members belonging to SCs/STs get selected in open competition on the basis of their merit, they will not be counted against quota reserved for SCs/STs, they will be treated as open competition candidates meaning thereby that reserved candidates are eligible to seek promotion if fulfilling the eligibility conditions and to compete against the general post if and on being found eligible for promotion against the general post, they are not required to be subsequently adjusted as a reserved candidate because it tantamounts to create a communal reservation and introducing reservation for the general candidates by excluding the SCs/STs to compete against unreserved posts.  We really do not mind distribution of posts in the ratio of population to all sections of society if these threatened by reservation.  They can have a communal/compartmental reservation as was the position prior to the introduction of the new Constitution, in the Presidency of Madras, which was struck down by Supreme court after Constitution came into force.  We understand that  when the Committee raised this important question, the DOP&T officials circumvented  the reply by  not giving direct answer to the question and skillfully tried to evade the answer.  They are so bold that no clarification has been issued so far by DOP&T in  regard to the above said erroneous assumption made by the office of Comptroller and Auditor General knowing fully well that this is in the knowledge of the Committee.  The Committee are surprised to know that the  clarifications published in the Swamy’s book have become an authority in the most of the Central Government’s Offices for re-adjustment of all those SCs/STs  who earlier got the promotion against the general posts.  Most of central Government Departments are violating the Constitution by  following this clarification by creating the reservation in favour of general caste and DOP&T are now going back to constitutional approved policy and repeated hundred times that reservation are minimum but representation can be more in comparison to the prescribed percentage and this was the policy which was ensuring the maximum participation in affairs of State.  Now the vested interests are assailing the basic fundamental principle as well as constitutional provisions and there is nobody to check and punish such civil servants who are required to be prosecuted under the appropriate provisions existing under the various law books.”

 

3.79     The Committee have been informed that the Comptroller & Auditor General’s  clarification issued with DOP&T’s consultation also states that the SCs/STs  who were promoted against the general point, are required to be re-adjusted against the reserved point on the same being subsequently vacated by reserved category candidate in future.  In the opinion of the Committee this clarification is in violation of the constitutional provisions that such re-adjustments are not permissible and bring the reservation in favour of general candidates on communal basis.

           

3.80     The Committee note with concern that the clarification issued by Comptroller and Auditor General to the effect that Scheduled Caste/Scheduled Tribe promoted on merit are not to be counted as general candidate is against the law laid down by the Courts as well against the spirit of constitutional provisions, and when the copy of such clarification was sent by the Comptroller & Auditor General to DOP&T even they did not initiate any action against officials of Comptroller and Auditor General.  Being the nodal Ministry DOP&T is supposed to  ensure proper implementation and if there is any violation/infringement of the reservation policy they are required to take appropriate action.   Non action by DOP&T’s bureaucrates cannot be understood by this Committee in any other manner than their active connivance in violating the reservation rules.  Therefore the Committee recommend for the prosecution of the officials of CA&G  as well as those of DOP&T involved in this matter.

 

3.81     “The Committee have been informed that the O.M. No. 36011/1/98-Estt. Dated 1.7.98 which lays down that those SCs/STs  and OBCs who have selected on general standard but those who are availing relaxations of age limit, will not be counted against the general posts, whereas no Court/Supreme Court has put such restrictions.  No such restriction was put in by any of the earlier instructions. 

 

3.82     It was also stated that the O.M. dated 1.7.1998 has been issued with the approval of Minister of State for Personnel, Public Grievances and Pensions.  The O.M. only explains the distinction between the SCs/STs  selected on own merit without availing of any relaxation and meeting the same standard as prescribed for general candidates vis-à-vis the Scheduled Castes and Scheduled Tribes, who become entitled to compete with general candidates only by availing certain relaxations and concessions.  The O.M. however, does not touch upon the basic policy decision that  reserved  category candidates who are appointed in direct recruitment on their own merit should be adjusted against unreserved post.

 

3.83     The Committee have gone into details   on the question of exclusion of meritorious candidates of reserved categories while counting the quota.  The Committee regret to mention that it is very clear from  Supreme Court’s judgement of R.K. Sabharwal case which itself has quoted in Para 2 of the O.M. as well as legal opinion which in one voice says that the reserved category candidates selected on merit are required to be excluded from reserved quota both in promotional category posts as well as recruitment posts but this type of exclusions in promotional category has not been acceded to on the ground that there is no candidate with a relaxed standard which is a position prevailing after 22.7.97 and not for the earlier years, as relaxation in qualifying marks stands withdrawn with prospective effect of 22.7.97.  Therefore all candidates who were selected without relaxation in promotional categories are to be treated as General as has been clearly opined by the Ministry of Legal Affairs ( in para No. 6.47.3). So that instructions contained in para 5 of the O.M. are contrary to the Supreme Court’s judgement. 

 

3.84     The Committee are equally concerned about the dubious method adopted by DOP&T in issuing the instructions vide their O.M. No. 3600/1/98-Estt.(SCT) dated 1.7.98 that those SCs/STs/OBCs who have been selected on general standard but availing relaxation of age limit will not be counted against general posts whereas no law has been laid down by the Hon’ble Court in any of the cases.  The Committee are aware that the relaxation of the age is admissible in the case of the non-reserved candidates too, such as serving Government servants, displaced persons from East Pakistan (now Bangladesh) etc.  The relaxation of the age is not a relaxation in true sense because the person who enters into the service at a later stage also  vacates the post after rendering  lesser length of service.  Thus this clarification was intended to curtail the scope of the application of the exclusion of the meritorious  candidates of the reserved category from the prescribed percentage of  the reservation which was agreed to in 1989 after a long struggle and now that has been  withdrawn.  The Committee are happy to note that DOPT has issued an O.M. No. 36012/23/96-Estt.(Res.) Vol.II dated 3 October, 2000 regarding reservation in promotion – prescription of lower qualifying marks/lower standard of evaluation and hope that it should be implemented properly.

 

3.85     The Committee note that the bureaucracy of DOP&T has intentionally, and purposefully ignored the Supreme Court’s judgement of R.K. Sabharwal as well as the advice given by the Ministry of Legal Affairs before and after issue of the OM on the question of exclusions of the meritorious  candidates of   the reserved categories from being counted against the quota posts. They have they worked in a partisan manner to ensure more number of posts for their own class and clan.  The Committee, therefore,  recommend the prosecution of all of them under sections 4 chapter II of the SCs  and STs  (Prevention of Atrocities) Act, 1989.

           

3.86     It has been brought to the notice of the Committee by the All India Confederation of Scheduled Castes and Scheduled Tribes Organisations that ambiguity has been left in the instructions contained in this OM.  They have represented to the Committee as under:-

 

“Ambiguity Left in 2.7.97 Instructions so as to curtail the Scope of Reservation

 

3.87     DOP&T’s instructions are ambiguous and intended to create more confusion.  Prof. Dr. Matadin, M.A., :LB, Ph.D., Head of Department, Delhi University in his Book, “Supreme Court on Reservation” has rightly observed that “policy of Reservation for Scheduled Castes and Scheduled Tribes is in a mess”.  Government of India in their office orders and the court in their decisions lay down the policy of reservation and it is very difficult for a common man and the administration to find out the law of reservation to administer.”

           

3.88     The Committee note that the model rosters have been drawn up keeping in mind two fundamental principles – reservation for the entitled categories is to be kept within the percentage of reservation and the total reservation should in no case exceed 50% of the cadre.

 

3.89     The Committee have been informed that 50% ceiling would not  applicable after initial completion of the roster because replacement by the same category is a mandate of the Supreme Court itself.”

 

3.90     In a situation where prescribed percentage of  reservation has to be achieved, for the SCs/STs/OBCs and there are still many unfilled reserved posts/slots left which are required to be taken into consideration, there might be  simultaneously some  posts occupied by reserve category candidates have been vacated which will also be required to be filled up on the principle of replacement.  There may thus be a situation when  vacancies which are being filled up for the first time and vacancies to be filled by replacement if together taken into consideration,  may exceed the maximum limit of 50% rule.  If replacement vacancies are excluded, the rule of 50% is not violated.  In such a  situation, the  Committee are of the considered view that the replacement vacancies/posts should be treated as  a separate class, and on separate footing.  Therefore, the application of the 50% rule has to be restricted with reference to the vacancies required to be filled up for the first time so that the ultimate constitutional goal of adequate representation to Backward Classes may be achieved without disturbing of the claim of reserved class candidates when replacement starts.

           

 

 

3.91     The Committee note that the Hon’ble Supreme Court  judgement in the Sabharwal case has made a distinction between the vacancies which are being filled up first time and vacancies which are required to be filled up  by replacement.  Therefore, two types of  vacancies are required to be treated on a separate footing and as a separate class.  The OM No. 360/2/5/97 Estt.(Res) Vol-II dated 20/7/2000 issued by DOPT should be implemented strictly so that the backlog could be wiped out completely.

           

3.92     The Committee are well aware of the prevailing situation in which continuous litigations in the reservation matter have become almost a daily affair. Therefore, such a constitutional amendment as suggested by the Committee in para No. mentioned  above may be likely to be challenged in the Hon’ble Supreme Court and therefore, Committee consider it necessary that these amendments after being enacted may be kept in the 9th Schedule so that the Court may not have any jurisdiction to interfere in the process of equalization and social justice which suffers because of such litigations.