Ajit Kumar Rai Vs the State of Jharkhand

For the Petitioners	: Mr. Manoj Tandon, Advocate Mr. Diwakar Upadhyay, Advocate
	Mr. Saurabh Shekhar, Advocate
	Mr. Binod Singh, Advocate Mr. Rakesh Giri, Advocate
	Mr. Rishav Kumar, Advocate
For the State	: Mr. Rajiv Ranjan, Advocate General Mr. Ashutosh Anand, AAG III
	Md. Shahabuddin, S.C. VII
	Mr. Sahabaj Akhtar, AC to AAG III
	Ms. Shrestha Mehta, AC to SC II
	Ms. Shaurya Dwivedi, AC to SC II
	Mr. Praveen Akhouri, SC (Mines)-I
	Mr. Sharabhil Ahmed, AC to SC (Mines)-I
	Mr. Kishore Kumar Singh, SC V

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Mr. J.F. Toppo, GA V
Mr. Ajit Kumar, AC to GA V
Mr. Karan Shahdeo, AC to SC-II
For the Resp./Pvt. Resps. : Mr. Indrajit Sinha, Advocate
Mr. Prabhat Kumar, Advocate
Mr. Z. A. Khan, Advocate
Mr. Shubhashis Rasik Soren, Advocate
Mr. Kushal Kumar, Advocate
Ms. Shobha Lakra, Advocate
Ms. Puja Agarwal, Advocate
Mr. Ajit Kumar, Sr. Advocate
Ms. Aprajita Bhardwaj, Advocate
Mr. Raunak Sahay, Advocate
Mr. Abhishek Sinha, Advocate
For the Intervener : Mr. Rajendra Krishna, Advocate
For the Intervener : Dr. K. S. Chouhan, Sr. Advocate
Mr. Pankaj Kumar Ravi, Advocate -----
C.A.V. ON 12.02.2024 PRONOUNCED ON 12.03.2024

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Memo No. 14/Court/02-11/2022 Ka 3463 dated 03.06.2022, issued by the Principal Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Government of Jharkhand, Ranchi, is under challenge in all these writ petitions. Since common question of law is involved in all these matters, therefore, they have been heard together and will be disposed of by common order.

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W.P. (S) No. 696 of 2023

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In W.P. (S) No. 696 of 2023 letter issued by the Under Secretary to the Department of Home, Prison and Disaster Management, Government of Jharkhand addressed to the Additional Director General of Police (Karmik) dated 10.11.2022 (Annexure-5) is under challenge. By this letter, promotion to unreserved post of Dy. S.P, the post of Inspector of Police has been declared to be the Basic cadre, and seniority in this cadre is to be considered while granting promotion.

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To put it precisely, unreserved seats in the roster to the promotional posts have been made open to members of Scheduled Caste and Scheduled Tribe, to be filled up by seniority.

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It is specifically argued in this case that all petitioners in this case were appointed initially to the post of Sub Inspector of Police. During course of time, they were promoted from the rank of Sub Inspector of Police to the post of inspector of police. They were not promoted to the post of Inspector

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by virtue of merit, but on the basis of available vacancy in the roster point for the reserved category of SC/ST. Had they been promoted on merit, then the circular of the central Government as well as the ratio of R.K. Sabharwal (supra) could have squarely covered the case. The post of Inspector is not a Basic cadre post, as no direct appointment is made to this post. Indisputably this is a promotional post and in order to circumvent the settled law, by virtue of the letter dated 10.11.2022, issued by the Under Secretary, Department of Home, Prison and Disaster Management, Government of Jharkhand (Annexure-5), the post of Inspector has been declared to be Basic cadre post. If this interpretation is accepted, it will result in candidates who had availed the benefit of reservation, to again get the benefit to the post under unreserved category, which is against the law as settled by the Hon’ble Supreme Court in R.K Sabharwal case.

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To avoid multiplicity, the service excerpts of the petitioners are put in the following tabular chart:-

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Sl. No.	Name of petitioners	Date of appointment as S.I.	Category	Date promotion Inspector Police
1	Ravi Kant Prasad	05.09.1994	General	14.05.2016
2	AbidKhan	05.09.1994	General	24.04.2015
3	Ajay Kumar Keshri	05.09.1994	General	24.04.2015
4	AjayKumar	05.09.1994	General	14.05.2016

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Number of schedule tribe/schedule caste Sub Inspector, who were though juniors in rank, than the petitioners, got promotion to the post of Inspector of Police at an earlier point of time, taking the benefit of reservation under Article 16(4)(a) of the Constitution, but on the post earmarked for reserved category. It is contended that the candidates belonging to the SC/ST category having twice taken benefit of reservation at the time of appointment, as well as at the time of promotion to the rank of Inspector. Therefore giving them preferential treatment in matter of promotion to the post of Dy.S.P will be against the ratio as laid down in Deepa E.V. v. Union of India , (2017) 12 SCC 680 .

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It is argued that reference to the letters of the Government of India for promotion to unreserved roster point to those appointed on reservation is

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misplaced, as none of these letters was for those members of Schedule Castes and Schedule Tribes, who had been appointed on reservation. These letters are with respect to those, who had been appointed on merit and, therefore, their promotion to unreserved point was unquestioned.

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Further line of argument is that R.K. Sabharwal (supra) has been relied upon in the impugned notification, but the said Judgment does not permit the promotion to the unreserved post, by one who has availed of reservation at any stage. As a matter of fact, law is settled that once a candidate is appointed by seeking reservation under Schedule Castes and Schedule Tribes category or relaxation, migration to general category is not permissible in view of the ratio laid down by Hon’ble Supreme Court i n Deepa E.V. v. Union of India , (2017) 12 SCC 680.

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The appellant, who has applied under OBC category by availing age relaxation and also attending the interview under the “OBC category” cannot claim right to be appointed under the General category.

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On a combined reading of Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980 and also the proceedings dated 1-7-1998, we find that there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for general category candidates.

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Gaurav Pradhan v. State of Rajasthan, (2018) 11 SCC 352

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49. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC, who had taken relaxation of age, were not entitled to be migrated to the unreserved vacancies; the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State.

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W.P. (S) No.2189 of 2023

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In this case the Petitioners belong to the General (unreserved category) and were appointed to the post of ‘ Training officer’ on different dates during the period 2011-2017.

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Under “Jharkhand Industrial Training Service/cadre (appointment, promotion and service conditions of non-gazetted posts) Rules,2021”, the post of ‘ Chief Training Officer’ is to be filled only by way of promotion

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from the substantive post of ‘Training Officers’ who had rendered a satisfactory service for 5 years to the said post.

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But the resolution no. 1072 dated 17.02.2009, already 26%,10%,8% and, 6% of promotional posts are earmarked for the employees belonging to the S.T , SC, EBC, and BC category respectively. The remaining 50% is meant for the unreserved category.

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It is submitted by learned counsel on behalf of the petitioners that the letter dated 03.06.2022 bearing memo No. 3463 was not according to the Judgment of Hon’ble Supreme Court in R.K. Sabharwal (Supra) case. Therefore, any promotion granted to unreserved posts to the employees of reserved category, based on the impugned memo, was against settled law.

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Petitioner in W.P. (S) No. 3012 of 2022 is Assistant Engineer in the Department of Water Resources and was initially appointed as Junior Engineer (Technical) on 21.11.2007 and was promoted to the post of Assistant Engineer on 20.11.2018. He is also aggrieved by the impugned memo which makes provision for the promotion from the reserved point roster to be promoted to the roster point for unreserved category.

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The Petitioner has rendered 3 years and 10 months of service on the post of Assistant Engineer. Minimum length of service for promotion from the post of Assistant Engineer to the post of Executive Engineer is 5 years as per the state government resolution dated 16.01.2012. Promotion of private respondent nos. 5 to 9 have been undertaken vide notification dated 27.12.2022. These promotions have been made against unreserved roster points by following the impugned government letter dated 03.06.2022.

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It is argued that the present case is not concerned with consequential seniority, it is also not concerned with the 85^th Amendment of the Constitution of India. The case is about following the law laid down in the Judgment of R.K. Sabharwal case.

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Petitioners in W.P. (S) No.5217 of 2022 were appointed to the unreserved post of Junior Engineer through direct competitive examination conducted by Jharkhand Public Service Commission. They apprehend their prospect for promotion to the rank of Assistant Engineer to be adversely affected in view of the impugned memo of the Govt. dated 03.06.2022. They claim to be eligible for promotion to the post of Assistant Engineer having rendered more than 5 years of regular service on the feeder post, and seek direction

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for considering their case for promotion.

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It is contended that the provision of promotion from reserved to unreserved is against the ratio laid down by the Apex Court In R.K Sabharwal case (supra) and is also not in accord with the Government of India letter dated 11.07.2002 as contained in office memorandum no.36028/17/2001 Estt.(Res). The government of India specifically provides in the memorandum, “Only those persons, belonging to reserved category, are to be considered for promotion against unreserved vacancies, who have entered in the feeder grade on their own merit and not owing to any reservation or relaxation of qualification”.

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It is also argued that the impugned memo will result in excessive reservation, exceeding 50% ceiling as laid down in Indra Sawhney case . W.P. (S) No.3216 of 2022

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Impugned memo dated 03.06. 2022 is under challenge, wherein it has been provided that promotion will be undertaken from reserved roster point seat to unreserved roster points vacancy in the matter of seniority-cum-fitness. Further prayer is for direction to initiate the promotion process, on the basis of reserved to reserve and unreserved to unreserve.

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Petitioners were appointed by a common order in the same cadre and on the same post under the unreserved category and were posted as Junior Engineer vide departmental order 3518 dated 14.11.2016, and they gave their joining. The impugned order has been issued at the level of secretary of the Department of Personnel, Administrative Reforms and Rajbhasa, without assent of the Governor of Jharkhand. Memo is an executive instruction is not issued under Article 161/163/309 of the Constitution of India.

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In Water Resource Department, there are 10 posts of Executive Engineer (Technical) that are unreserved, and 5 posts are in the reserved roster point. In the present 3 posts of executive engineer are vacant in the unreserved roster point. If the earlier system for promotion from reserved to reserve and unreserved to unreserve is followed, the petitioners will be entitled for the vacant posts.

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WP(S) No.672 of 2023

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This writ petition has been preferred by the petitioner serving on the post of Constable and the next higher promotional rank is of Assistant Sub

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Inspector of Police. Petitioner belongs to the general category and was appointed on 27.09.2005 and claims to fulfill the eligibility criteria for promotion to the post of Assistant Sub Inspector of Police. Impugned notification is affecting his promotional avenues.

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Person of SC/ST category, who had been appointed much after the appointment of the petitioner, by taking advantage of the accelerated promotion on reservation, got promoted to the post of ASI. Those juniors to the petitioner have already become much senior to the petitioner and they are also enjoying consequential said seniority on the basis of 85^th Constitutional amendment 2001.

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In the police department in Jharkhand already 26% of promotional posts earmarked for the employees belonging to the ST category, and 10% for the SC category, remaining 64% is meant for unreserved category.

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After completing the PTC training the petitioner became entitled for promotion to the next higher post of ASI, but vide Memo No., 6752 dated 24.12.2020, blanket decision was taken by the state government for not granting any promotion to the employees till further decision. The blanket stay was challenged in WP(S) No.1390/2021 and other analogous cases. In pursuant to the order passed to consider the cases of employees for promotion, who were otherwise fit for promotion, the state government came out with the impugned memo, by which the blanket stay on promotion has been withdrawn with certain explanation and illustration regarding promotion of SC/ST government employees.

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It is submitted by learned counsel for the petitioner(s) that in compliance to the ratio laid down by Hon’ble Supreme Court in the case of R. K. Sabharwal (supra), the Government of Bihar, Personnel and Administrative Reforms Department issued letter dated 30.09.1995 which specifically provides in Clause-4, that vacancy of category which becomes available after retirement/promotion and for other reasons will be filled from the same category from which the vacancy is available i.e. vacancy of general Category will be filled from the General Category and vacancy of reserved category will be filled from the respective reserved category. On account of the impugned letter, contradictory policy in promotion is being followed in the State of Jharkhand and in the State of Bihar . In the State of Bihar in promotion matters, only the candidates from unreserved category take the

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roster points fixed for unreserved post, but in Jharkhand it has been thrown open to all, so that even a candidate from the reserved category on seniority can fill up the vacancies accruing against the unreserved point.

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Petitioners apprehend their promotional prospects to be jeopardized on account of the impugned memo which seeks to give promotion to those appointed on reservation, to unreserved roster points.

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W.P(S) No.759 of 2023

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Petitioner(s) are serving on the post of Literate Constables who have been appointed on different dates on the post of Constable(s) in the year 2005. Petitioners’ future prospect of promotion is being affected by the Letter of the Government bearing Memo No.3463 of 2022.

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Petitioners were found fit for promotion by Central Selection Board/ Committee meeting held on 30.09.2020, and the said letter was issued from the office of the Additional Director General (Personnel), Jharkhand and the same was intimated to the Jharkhand Police, Hazaribagh and all the regional DIGs. Petitioner also completed the PTC training for promotion to the next higher post of ASI in the year 2015 itself. However, vide Memo No.6752 dated 24.12.2020, the State Government brought an order about promotion of the employees of the State Government. Consequently, the promotion of the petitioner was stalled.

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Matter was considered in W.P.(S) No.1390 of 2021 wherein the said order was quashed. However, superseding the petitioners, constables junior to the petitioner were granted promotion vide Memo No.116 dated 02.02.2023 issued by the Additional Director General (Personnel), Jharkhand vide Annexure-4.

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Provision of Jharkhand Police Manual has not been complied with, which mandates that before giving effect to recommendation for promotion at least 40 days before passing of the order of promotion, the DIG shall publish by range order, the name(s) of those published to be promoted.

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ARGUMENT ON BEHALF OF THE RESPONDENTS

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Mr. Rajendra Krishna, learned counsel for the respondents/intervener in W.P. (S) No. 696 of 2023, submits that the promotion to the Post of Dy. S.P. is governed by ‘Jharkhand Rajya Police Seva Niyamabali, 2012 whereby Chapter IV, Rule 11 deals with the promotion of Dy. S.P. from the feeder post of Inspector. Based on seniority-cum-merit, as per the said rule, feeder

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post comprises of the officers who are promoted to the rank of Inspector of Police, Sargent Major as well as reserved Inspector. While granting promotion, the seniority in the feeder post is to be reckoned with as per the Rule. Writ Petition is not maintainable as neither the rule is under-challenge nor the Gradation list of seniority is under-challenge.

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It is submitted by learned senior counsel Ajit Kumar for the answering respondents in W.P. (S) No 3012 of 2023, that they were directly appointed to the feeder post of Assistant Engineer in the year 2013 whereas the petitioner was promoted to the post of Assistant Engineer in the year 2018 and, therefore, they were seniors to the petitioner. At the time when they were appointed to the post of Assistant Engineer, which is the feeder cadre for promotion to the post of Executive Engineer, the petitioner was not even born in the cadre of Assistant Engineer.

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The seniority list has not been challenged anywhere in the instant writ petition and as per the rules, the promotion is to be given on seniority-cummerit. Therefore, to accept the argument of the petitioner will amount to promotion by supersession of the seniority list. Since the answering respondents already stand much senior to the petitioner, therefore, in the matter of promotion the principle of reservation will have no application, rather they will be promoted on the basis of seniority cum merit.

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It is argued that the ratio laid down in Deepa EV case (supra) will not apply in the present cases as the facts are distinguishable. The said authority was with regard to a candidate who had sought age relaxation at the time of appointment on being the member of OBC, and having faced interview and thereafter they sought appointment against the unreserved seat. In the instant case, it is not a case of appointment, rather it is a case of promotion where determining the factor of the seniority list and the said ratio will not apply here.

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It is further submitted that the catch-up rule will not apply in the present case, as the question is not about the inter-se seniority between the persons coming from the same cadre. The petitioner is coming from the stream of Junior Engineer, whereas the answering respondents are directly appointed to the post of Assistant Engineer.

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Lastly, it is submitted that the petitioner was promoted to the post of Assistant Engineer on 20.11.2018 and the basic requirement for completing

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five years on the feeder post would be complete only after rendering five years of service on the said post in December, 2023. Before even being eligible for the said post of promotion, they have preferred the writ petitions in the year 2022.

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The main contention of the petitioner is that the promotion to the post of officers in the Engineering Service is guided by the Bihar Engineering Service Class-1 Rules, 1939. Under rule 17 the promotion is to be made by seniority and merit, combined with more importance to be attached to merit. Rule 27 provides that the seniority in the service shall be determined by the date of officer’s substantive appointment to the service irrespective of the pay drawn by him, provided that the member of the service who holds a superior post substantively, shall always be deemed to be the senior to an officer who holds an inferior post substantively. The seniority of the officers appointed on the same date, shall be determined in accordance with the order on merit in which they were placed at the time of their selection for appointment.

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In the event of amalgamation of cadres, seniority is determined with reference to the date of appointment in particulars grade of substantive and continuous officiating post, whichever is earlier, but the inter-se seniority of incumbents, in any group of post as amongst themselves is not to be disturbed in the process of amalgamation. Reference is made to the Government of Bihar, Department of Personnel Notification No. 3/R-I-106 /72-P/15784 dated 26^th August, 1972 which lays down general principle and procedure for fixation of inter-se seniority in service cadre. This notification further provides that persons promoted from the gazetted rank to another gazetted rank shall rank senior to the persons promoted to the gazetted rank at the same time from non-gazetted rank. Reliance is placed on 2012 SCC Online Delhi 2809 = 2012 (132) DRJ 229 DB (A.K. Gautam Vs. Union of India & Ors.), para 5.

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Mr. Shubhashis Rasik Soren, learned counsel for respondent no. 8 in W.P.(S) No. 3012 of 2022, adopts the plea already taken by Mr. Ajit Kumar, learned senior counsel appearing on behalf of respondent nos. 6 and 7. It is further added that the case of respondent no.8 is on similar footing to that of respondent nos. 6 and 7 as they had been directly appointed to the post of Assistant Engineer vide notification dated 02.09.2013 and as per the merit

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list, he was placed at Sl. No. 11.

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With regard to the point of law raised on behalf of the Petitioner that the impugned notification is not in the name of the Governor but is an executive order signed by the Principal Secretary, it is argued that Article 166(3) enables that the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business. In so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion, therefore there is no illegality in the clarificatory letter of the Govt.

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Rule 55 of the Jharkhand Rules of Executive Business, 2000 has been framed under Article 166(3) and Rule 55 specifically provides that before framing any policy or enacting any rule with regard to appointment, recruitment promotion, the Department of Personnel, Administrative Reforms and Rajbhasha shall be consulted. Department of Personnel, Administrative Reforms and Rajbhasha derives clarificatory power in view of Rule 55 read with Schedule-1 (kha)(ii).

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ARGUMENT ON BEHALF OF THE STATE

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It is submitted by learned Advocate General appearing on behalf of the State that the instant clarificatory notification, which is under challenge, has been brought to remove anomaly that was taking place on wrong interpretation of the judgment passed in R.K. Sabharwal (supra) case. The effect of the interpretation to R.K. Sabharwal (supra) as proposed by the Petitioners, will lead to a situation where an officer, who is much below in the seniority list, will be given promotion superseding the officer of the Schedule Castes and Schedule Tribes candidates only for the reason that the roster points to the promotional post were for unreserved post.

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It is further clarified that the promotion to the unreserved post is not perpetual in nature and the principle of replacement is followed to the extent that when a candidate of the Schedule Castes and Schedule Tribes is promoted to unreserved post, on a subsequent stage of roster clearance, the seat, occupied by the said candidate, is reckoned as reserved post and vacancy arising later is treated as unreserved post. Reliance is placed on (2022) 10 SCC 595 para 11.

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ANALYSIS

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Litigating parties in these batch of cases, are locked in a dispute spurred by a memo of the Government, which has direct repercussion on their promotional prospects in service. Impugned Memo in effect, throws open unreserved roster points in the promotional ladder, to those employees who have been been appointed on reservation. There is no dispute whatsoever about the employees of the SC/ST category who are selected on merit and appointed against the unreserved posts. Issue mainly is whether those employees who were appointed on reserved posts can be promoted to the roster points for unreserved category. The following issues have been raised at Bar in the instant writ petition:

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I. Can employees of the SC/ST category appointed against reserved post, who are senior to the employees of the unreserved category in the Basic cadre , be promoted to the unreserved roster point?

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II. If the impugned memo will result in excessive reservation?

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III.Can the employees who are appointed on reservation, and have been promoted to reserved roster point, be promoted to the next higher post in the general roster on the basis of their seniority in the feeder post ?

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IV. If the impugned memo dated 03.06.2022 is in consonance with the principle as laid down by the Apex Court in R.K. Sabharwal and Ors. Vs State of Punjab & Ors 1995(2) SCC 745 and the letters of the Govt. of India, in the memo referred to.

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V. Can the post of Inspector be treated as Basic cadre for promotion to the post of Dy.S.P?

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VI. If the employees appointed by reservation, can be given promotion to the unreserved roster point by way of an executive instruction?

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‘Basic cadre’ is the cadre where an employee is initially appointed, whereas ‘feeder post’ is meant the cadre post from where the employee is subsequently promoted, and is the cadre for considering the seniority to the next higher post.

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There are certain consecrated principles of service jurisprudence which needs to be set out at the outset, with abundant clarity. While applying the principle of seniority-cum-merit, for the purpose of promotion, what is required to be considered is the inter-se seniority of the employees who are

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eligible for consideration. Such seniority normally is determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion, seniority has no role for the employees eligible for promotion who are appointed on the same date and have the same length of service. (Refer to B.V. Sivaiah v. K. Addanki Babu , (1998) 6 SCC 720) .

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Hon’ble Supreme Court, in the case of Indra Sawhney Vs Union of India and Ors (1992) Supp (3) SCC 217 , inter-alia held that reservation in promotion was ultra vires, as there was no provision in the Constitution to provide for reservation in promotions. This brought into cloud reservation in promotion, hitherto being granted to the employees of Scheduled castes and Scheduled tribes. The 77^th amendment was brought to deal with this situation, brought by the restriction on reservation in promotion, as ruled in Indra Sawhney case (supra). This amendment incorporated clause (4A) in Article 16 of the Constitution, reads as under.

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Article 16 (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

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The above amendment has received the Apex Court’s imprimatur in M.

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Nagaraj v. Union of India , (2006) 8 SCC 212. It has been held ,

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121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , the concept of post-based roster with inbuilt concept of replacement as

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held in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481]

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With regard to the “catch-up rule” it observed 79. Reading the above judgments, we are of the view that the concept of “catch-up” rule and “consequential seniority” are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot be said that by insertion of the concept of “consequential seniority” the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that “equality code” under Articles 14, 15 and 16 is violated by deletion of the “catch-up” rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the “catch-up” rule nor the concept of “consequential seniority” is implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] .

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The Hon’ble Supreme Court also reiterated law on 50% ceiling in reservation and that

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48. It is the equality “in fact” which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.

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(emphasis supplied)

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What follows from the above is that reservation in promotion as has been brought by the Constitutional amendment has been tested and accepted by judicial verdict, with a rider that it cannot be excessive, beyond the 50% limit as laid down in Indra Sawhney case.

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In W.P.(S) No. 3012 of 2022, Petitioner was Junior Engineer (Technical) appointed on 21.11.2007, and was promoted to the post of Assistant Engineer on 20.11.2018 . The private Respondents in this case were appointed directly to the post of Assistant Engineer, in the year 2013 . Claim of Respondents to promotion to the unreserved post of Executive Engineer, is not based on consequential seniority, but on account of their earlier appointment to the said feeder post. Petitioner seeks promotion on the ground that as per roster the vacancy was against the unreserved post. If the plea as advanced on behalf of the Petitioner is accepted, it will result to anomalous result. Vacancy arising in the unreserved roster point will have

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to be kept in abeyance, till those from General category become eligible for promotion. It will also result in employees of the SC/ST reserved category, being denied promotion despite being senior to those of the unreserved category at the time of their appointment. This will violate the principle of Seniority-cum-merit which is the standard for consideration of promotion as per the rules. In the result promotion of the answering Respondents 5 to 9 has to be given primacy over the Petitioner, as they were directly appointed to the feeder post, before the promotion of the petitioner to the said post.

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The case of the Respondents in this case is further supported by the clarificatory letter of the Union of India dated 11.07.2002, on which the impugned letter is based, which provides that if an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.

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Catch up rule will also not apply in this case, as the Petitioner and the private Respondents have not been appointed to the feeder post by the same recruitment process, or that Respondents had obtained accelerated promotion to the feeder post.

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A prior appointee to the feeder post by direct recruitment whether, reserved or unreserved is entitled to promotion to the unreserved post, vis-à-vis a subsequent appointee, by virtue of his seniority and length of service in the feeder post, subject to fulfilling the eligibility criteria as per the applicable service rules.

¶229

Validity of the impugned letter dated 03.06.2022 is not central to decide W.P(S) 3012 of 2022, because promotions are based on seniority-cummerit in the feeder post in which the private Respondents were appointed and are admittedly senior to the Petitioner from the date of their appointment.

¶230

Under the circumstance W.P.(S) No.3012 of 2022 fails for the reason that the private Respondents have been appointed to the post of Assistant

¶231

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Engineer, much before the promotion of the Petitioners to this post. The principle of law as laid down in Deepa E.V. v. Union of India , (2017) 12 SCC 680 will not apply in the present case, as it is not a case of appointment, but of promotion . In Deepa E.V case (supra ) the appellant had applied under OBC category by availing age relaxation and also attended interview under the “OBC category” therefore was held that she cannot claim right to be appointed under the General category, in view of the express bar for the candidates belonging to SC/ST/OBC in the relevant rule.

¶233

Validity of the impugned letter is central to the adjudication of the rest of Writ Petitions. It shall be desirable to extract the salient feature of the impugned letter which are as under.

¶234

i. By this letter, earlier Letter No. 6752 dated 24.12.2020 has been recalled, in view of the recommendation of the Special Committee constituted to consider the complaints of the members of Schedule Castes and Schedule Tribes in the matter of promotion. Anomaly which this letter seeks to correct is that, those juniors in unreserved category were being given precedence in promotion, to those who were senior and members of Schedule Castes and Schedule Tribes category.

¶235

ii. The stay of promotion was recalled under this letter with following clarification:

¶236

“From the judgment delivered by the Hon’ble Supreme Court in R.K. Sabharwal and Others Vs. State of Punjab & Ors. on 10.02.1995 and in the light of the letters of the Department of Personnel, Public Grievance and Pension, Government of India, Letter No. 36028/17/2001 Estt. (RES) dated 11.07.2002 and Letter No. 36012/45/2005 Estt (RES) dated 10.08.2010, it is clear that while considering promotion on seniority-cum-merit in the Basic cadre , those who are members of Schedule Castes and Schedule Tribes category and are senior, will be considered for promotion to unreserved post over those who are in general category . While granting promotion against the unreserved post, it will not be necessary to see as to whether the members of Schedule Castes and Schedule Tribes were appointed on the basis of merit or on

¶237

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reservation”.

¶239

This letter draws on the letters of the Department of Personnel, Public Grievance and Pension, Government of India, Letter No. 36028/17/2001 Estt. (RES) dated 11.07.2002 which is extracted below:-

¶240

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

¶241

The clarification has been made which as under:-

¶242

(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.

¶243

(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.

¶244

(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any .

¶245

Subsequent office memorandum dated 10^th August, 2010 of the Ministry of Department of Personnel, Public Grievance and Pension, Government of India is also to the same effect.

¶246

It will also be desirable to extract the relevant ratio as laid down i n R.K. Sabharwal v. State of Punjab , (1995) 2 SCC 745, as the impugned letter banks on the ratio as laid down in this case.

¶247

5. 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/Schedule Tribes and Backward Classes get their percentage of reserved posts. ………. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive.

¶248

7. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full

¶249

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representation of the Scheduled Castes/Tribes and 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.

¶251

To appreciate issues raised it will be desirable to consider some of the fall out of the impugned letter dated 03.06.2022.

¶252

I. Constables of S.C/S.T category appointed much after the Petitioner, by taking advantage of accelerated promotion on reservation got promoted to the post of ASI, against the reserved point roster. It is apprehended that in view of the impugned letter, if they are granted promotion to the next promotional ladder of sub-inspector to the unreserved roster point, on the basis of their seniority in the feeder post for the next promotion, and the unreserved posts in the rank of sub inspector is filled up, it will adversely affect the promotional prospects of those from the General category. (As raised in W.P. (S) 672 of 2023 & W.P. (S) 759 of 2023)

¶253

II. Petitioners in W.P. (S) 3012 of 2022 & W.P. (S) 5217 of 2022, apprehend similar consequence as a result of throwing open of the unreserved roster points in the promotional posts, to those promoted from reserved point roster.

¶254

Promotion to reserved roster point is covered under Article 16 (4-A) of the Constitution. After filling up reserved roster point, if the unreserved roster points are also filled up by those who were initially appointed, or promoted on reservation, then it will definitely impinge on the promotional avenue of those in the unreserved category. The vacancies ensuing against the reserved posts, can be filled up from unreserved category on a later date by the “principle of replacement”. But before such vacancy occurs in reserved category there will be an excess of employees from the reserved category, who will be stonewalling the promotional prospects of employees from General category, and in the meantime some may retire from the service, and permanently lose their legitimate right to promotion, despite having fulfilled the requisite eligibility criteria. This will lead to excessive reservation, as those who are appointed on reservation in the SC/ST category are promoted not only against the reserved roster points, but also against the unreserved roster points leading to an excess of representation. As stated above principle of replacement cannot fully mitigate the skewed outcome of such promotions. Such excessive reservation will be against the ratio as laid down in M. Nagraj Vs. Union of India (2006) 8 SCC 21 and Indra Sawhney [(1992) Supp (3) SCC 217].

¶255

Equality is the foundational ideal of the Constitution and despite being accepted as a dynamic concept with many facets, it cannot be interpreted in

¶256

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a manner that it loses its fundamental essence. Constitution is poised on a delicate balance of competing rights. If that balance is disturbed, the preambular objectives of Justice, liberty, equality and fraternity will be undermined. Here we are dealing with cases of employees who have started their career at the lowest rung of administration like constables and literate constables, apart from those who are in the rank of Junior Engineer, Assistant Engineer, Technical Officers. Any cadre to remain vibrant need to have upward mobility with modest promotional avenues. Human life is all about hope and aspirations for self-improvement. Employees irrespective of their category have legitimate expectations of promotion in their service career. If employees with unblemished service record, are denied promotion without any justifiable reason, only for their accidents of birth, then institutions can become morbid, breeding dispiritedness, disaffection among the employees.

¶258

¶259

It is also established that seniority between employees appointed on the basis of placement in the select list for appointment, is the fundamental factor for determining seniority. Roster is a mechanism to maintain percentage of quota reserved for respective categories in the cadre. In order to fill up the reserved roster point, and maintain the percentage of reservation, promotion from the reserved category, dehors the select list seniority, is the legally accepted norm. To fill up the reserved point roster, even consequential seniority to those earlier granted promotion has been allowed under Article 16 (4-A). It has however been emphatically held in R.K. Sabharwal v. State of Punjab , (1995) 2 SCC 745 :

¶260

“7. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and 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 M. Nagaraj v. Union of India , (2006) 8 SCC 212, overriding concern to maintain the 50% quota is reflected in the following observation 82. Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However, in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC

¶261

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(L&S) 548 : (1995) 29 ATC 481] this Court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota limit has been reached. It was clarified that the judgment in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensures that the reservation remains within the ceiling limit of 50%”.

¶263

(emphasis supplied)

¶264

Above authorities underline some of the fundamental principles while allowing reservation in promotion. They may be summed up as under:

¶265

Firstly, when all the roster points in a cadre are filled, the required percentage of reservation is achieved, then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong.

¶266

Secondly, numerical benchmarks like ceiling limit of 50% based on postspecific roster is to be maintained.

¶267

The office memorandum of the Govt. of India referred to above specifically in its very ‘subject’ refers to reservation in promotion of SC/St candidates appointed on their own merit. Meaning thereby it is not with regard to those appointed on reservation. Clause (i) and (iii) of its letter, specifically refers to those who are appointed on their own merit. Clause (ii) protects the interests of the SC/ST candidates within the normal zone of consideration in the feeder grade, and are to be considered for promotion along with other candidates treating him to be belonged to general category. The import of this clause is that on seniority in the feeder cadre, candidate from the SC/ST category to be considered for promotion to the unreserved point.

¶268

A careful reading of the impugned letter dated 03.06.2022 will show that expression, while considering promotion on seniority-cum-merit in the Basic cadre is used and not ‘feeder post’. What the impugned letter thus protects, is seniority derived by way of initial appointment.

¶269

Unreserved roster point cannot be made open, to those promoted to reserved roster point, as it will lead to excessive reservation in the promotional post, and not permissible in view of the ratio discussed above. The balancing act in the form of ‘replacement’ to maintain the percentage of quota, will take time to work out, only after some retire from the reserved category. By the time such vacancy accrues in the reserved

¶270

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quota for replacement by those from the unreserved category, proportion will be excessive. This will certainly eclipse the promotional prospect of those appointed in unreserved category, who may even retire from service by the time replacement occurs. Therefore, such further promotion from the feeder post to the unreserved roster point is not permissible, as it will amount to reverse discrimination against those appointed in unreserved category, seriously undermining their right of promotion. Excessive reservation is not permissible unless it is supported by quantifiable data (Refer to M.Nagraj case para-86,102). Any contrary of the impugned letter will also not be in consonance with the ratio as laid down in R.K Sabharwal case (supra) as it permits promotion from reserved to reserved roster points. 68. In view of the above, the issues raised at Bar is answered as under:

¶272

I. Employees of the SC/ST category appointed against reserved post, who are senior to employees of the unreserved category in the Basic cadre , can be promoted to the unreserved roster point. Such employees can also be promoted to the reserved roster point. Against unreserved vacancy in general cadre any SC/ST candidate in the feeder post who is directly appointed (not promoted) to the said feeder post, and is senior to any employee of the unreserved category, can be promoted to the unreserved roster point.

¶273

II. The impugned memo being confined to promotion from Basic cadre, will not result in excessive reservation in the promotional posts.

¶274

III.Seniority-cum-merit in the Basic cadre of appointment can only be considered for promotion of SC/ST employees appointed on reserved posts and not in the next higher post.

¶275

IV. The impugned memo dated 03.06.2022, is in consonance with the principle as laid down by the Apex Court in R.K. Sabharwal and Ors. Vs State of Punjab & Ors 1995(2) SCC 745 and the letters of the Govt. of India, in the memo referred to as it is confined to considering promotion on seniority-cum-merit in the Basic cadre .

¶276

V. Post of Inspector is the feeder post for promotion to the post of Dy.S.P, and seniority-cum-merit is to be considered in this cadre for promotion to the post of Dy.S.P. It cannot be treated as Basic cadre, as it will result in promotion of those appointed to the reserved roster point of Inspector, to the unreserved roster point of Dy.S.P, by treating it as

¶277

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Basic cadre. Promotion to the Post of Dy.S.P. is governed by ‘Jharkhand Rajya Police Seva Niyamabali, 2012 whereby Chapter IV, Rule 11 deals with the promotion of Dy.S.P. from the feeder post of Inspector. Exercise to convert the feeder post to Basic cadre is not supported by rule, and is a colourable exercise of power by an executive instruction, to favour those promoted on reserved roster point of Inspector, to the detriment of those in the general category. Part of Letter No. 12/M. 2-1010/2022-4474 dated 10.11.2022 which converts the post of Inspector as Basic cadre not being in consonance with the law laid down in R.K. Sabharwal case (supra) is struck down.

¶279

VI. There is no bar in giving promotion to the unreserved roster point by way of an executive instruction as per their seniority in the Basic cadre, in view of the ratio as laid down in Sudhakar Baburao Nangnure Vs. Noreshwar Raghunathrao Shende (2020) 11 SCC 399.

¶280

RESULT

¶281

Challenge to the impugned Memo No. 3463 dated 03.06.2022 made in all the Writ Petitions fails, subject to the purport of this memo as held above. Apprehension of Petitioners in W.P.(S) No.2189 of 2023, W.P.(S) No.5217 of 2022, W.P.(S) No.3216 of 2022, W.P.(S) No.672 of 2023 and W.P.(S) No.759 of 2023, that this memo will result in excessive reservation is misconceived and, accordingly, these Writ Petitions stand disposed of with direction to initiate the process for promotion for those in the consideration zone without any further delay.

¶282

W.P.(S) No.696 of 2023 is allowed to the extent that Part of Letter No. 12/M. 2-1010/2022-4474 dated 10.11.2022 which converts the post of Inspector to Basic cadre is struck down.

¶283

W.P.(S) No.3012 of 2022 is dismissed as the Private Respondents were appointed to the feeder post of Assistant Engineer, much before the promotion of the Petitioner to this post.

¶284

I.A., if any, stands disposed of.

¶285

(Gautam Kumar Choudhary, J.)

¶286

Jharkhand High Court, Ranchi Dated, the 12^th March, 2024 AFR/ AKT/Sandeep/Anit

Ajit Kumar Rai v. the State of Jharkhand

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Ajit Kumar Rai v. the State of Jharkhand

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