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Reservation in promotion

Querist : Anonymous (Querist) 28 February 2024 This query is : Resolved 
I am SC category candidate and in direct recruitment another OBC candidate secured less mark to me and placed below me in the Gradation list. But when only promotional vacancies in the Unreserved category arises in the Cadre the less mark secured OBC candidate was given promotion and I was denied on the plea that no promotional SC vacancy is available and the State is following POST BASED roster. Does UR is reserved for general and non-ST/SC reserved candidates? Does natural seniority has no role in post based reservation system? Does ST/SC employee have no natural seniority in service jurisprudence?
T. Kalaiselvan, Advocate (Expert) 29 February 2024
A candidate belonging to SC/ST/OBC_who is selected on the same standard as applied to general category candidates and who appears in the general merit list is treated as own merit candidate. Such candidate is adjusted against unreserved point of the reservation roster.
If you were appointed on the reserved category quota, then you may not be permitted to converted to general category for the purpose of promotion.
Reservation to the members of the Scheduled Castes and the Scheduled Tribes shall be provided in the matter of promotion when promotion is made: (a) through Limited Departmental Competitive Examination in Group B, Group C and Group D posts; (b) by selection from Group B post to a Group A post or in Group B, Group C.
Querist : Anonymous (Querist) 29 February 2024
When a junior will get promotion ahead of his senior, this type of promotion is called accelerated promotion and Article 16 (4A) provides accelerated promotion to the ST/SC employees in the matter of promotion. But, if a junior Non-ST/SC candidate got promotion ahead of his senior batch ST/SC candidate then we say the same Non-ST/SC candidate got accelerated promotion and is against the constitutional mandate. Further, an OBC candidate also take reservation in Direct Recruitment. If he has secured less mark than a ST/SC candidate in the Direct Recruitment and placed below the gradation list, how he will get promotion ahead of a ST/SC candidate who was secured more marks than him. It is clear cut violation of merit as well as seniority and against the constitution. Kindly support your views with legal document.

(Kindly refer: Para 3 & 4 of Hon'ble Supreme Court Judgement rendered in R.K. Sabharwal and reiterated at Para 17 of Jairnail Singh vrs Lachhmi Narain Gupta in C.A. No. 629 of 2022 dated 28.01.2022)
T. Kalaiselvan, Advocate (Expert) 29 February 2024
If you are having grievances on this then nothing prevents you from taking suitable action to get your grievances redressed properly.
First you submit a representation to the competent authority requesting judgement to your grievances

If there's no solace or if your representation fetches desired relief you may consider escalating the matter through legal forum.
Querist : Anonymous (Querist) 29 February 2024
Thank u a lot for your kind advice Sir. I have made that. I want some valuable suggestions from the experts on the Reservation in Promotion. This is why i raised my queries in this group.
T. Kalaiselvan, Advocate (Expert) 29 February 2024
The suggestions what you expect is a practical matter that you have to discuss at length with your advocate on an appointment.
Forums like this generally will be able to guide you only to some extent, if you want to pursue the matter till the end then sometimes the advises given by various other experts would be misleading, therefore you can take this as preliminary solution alone
Sudhir Kumar, Advocate (Expert) 01 March 2024
if a person who has secured any concession is not entitled to be placed above a person who did not seek any concession.

in case you have not sought any concession in present recruitment and having more marks than that candidate you may be eligible.
Querist : Anonymous (Querist) 01 March 2024
Sir, this is the main misinterpretation. At the tiime of R.K. Sabharwal judgement, there were only reservations provided to the St, SC category. But, subsequently OBC, PwBD, Ex-Servicemen, Sports quota reservation was introduced. Due to this now apart from ST/SC candidates OBC, PwBD, Ex-Servicemen, Sports persons candidates are also taking relaxation in Direct recruitment. Further, OBC reservation is a vertical reservation as like ST & SC and coming under Article 16(4) of the Constitution of India.

Due to such fact an OBC candidate also after taking concession in Direct recruitment enter to the Service but if that OBC candidate secured less mark to the ST/SC candidate then he/she will be placed below the ST/SC candidates in the gradation list.

Now, in promotion by means of Selection (Seniority-cum-fitnes), an ST/SC employee placed above those other reserved candidates (OBC, PwBD, Ex-Servicemen, Sports) are denied promotion only because ST/SC have reservation in promotion and on the plea of "POST BASED RESERVATION SYSTEM".

The Hon’ble Apex Court in its judgement dated 12.09.1996 passed in Akhil Bhartiya Soshit Karamchari Sangh Vs.Union of india has also observed as below:

“Para 6 of the judgement:-. That apart in a particular cadre after following the roster meant for reserved category candidate, there is absolutely no bar for filling up the vacancies in the general category even in favour of candidate belonging to the reserved category if the said reserved category candidate is entitled to the same on the basis of his general seniority.”

The Hon’ble Apex Court in C.A. No.74 of 2010 filed by Jitendra Kumar Singh & Anr vs State of U.P. & Ors has clarified that once a candidate takes advantage of relaxation in the eligibility criteria, he/she has to be treated as a reserved category candidate. In case of direct recruitment various relaxations are available to different reserved category candidates (SC/ ST/ SEBC/ Women/ Ex-Servicemen/ Sports Person/ Transgender etc.) like relaxation in age limit, exemption from payment of examination, relaxation in qualification of experience at the discretion of competent authority, relaxation in standard of suitability. For example: in the case of direct recruitment, if sufficient number of candidates belonging to the SC/ ST/ SEBC/ Women/ Ex-Servicemen/ Sports Person etc. are not available on the basis of general standard to fill all the vacancies reserved for them, candidates belonging to the concerned category may be selected under a relaxed standard of selection to make up the deficiency in the reserved quota. This has been reflected in the Merit List provided by a Recruiting Agency wherein after placing the names of all UR category candidates, the names of Reserved category candidates (SC/ ST/ SEBC/ Women/ Ex-Servicemen/ Sports Person etc.) are placed in order their respective merit who have taken the advantage of relaxation in the eligibility criteria. The same has been meticulously described in the order of Hon’ble Supreme Court in Saurav Yadav vrs State of U.P., (SLP (Civil) No.23223 of 2018) wherein the Hon’ble Court has clarified that reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles his/her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.

The same has also been observed by the Hon'ble Supreme Court in Indra Sawhney Etc. vs Union Of India AIR 1993 SC 477 as follows: -
"xxxx it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for. Scheduled Castes; they will be treated as open competition candidates xxxx"
Because when a person is selected on the basis of his own merit-cum-seniority without any relaxation, then the scope of considering and counting him against quota reserved for SCs/STs does not arise.
T. Kalaiselvan, Advocate (Expert) 01 March 2024
If you are having grievances on this then nothing prevents you from taking suitable action to get your grievances redressed properly. First you submit a representation to the competent authority requesting judgement to your grievances

In addition you can discuss with an experienced service law practicing lawyer in the local and proceed as suggested .
Sudhir Kumar, Advocate (Expert) 09 March 2024
Your assumption may be right if you were placed higher in the seniority list and general candidate did not object.

please confirm so.

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