STATE OF BIHAR AND ORS. versus BAGESHWARI PRASAD AND ANR.

Citation: [1994] SUPP. 4 S.C.R. 318 · Decided: 06-10-1994 · Supreme Court of India · Bench: K. RAMASWAMY, N. VENKATACHALA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
STATE OF BIHAR AND ORS. 
v. 
BAGESHWARI PRASAD AND ANR. 
OCTOBER 6, 1994 
(K. RAMASWAMY AND N. VENKATACHALA, JJ.] 
Service Law-Government circular bearing Letter No. 21-AG-I- 125-
KG-20165-Reservation-Roaster not covered with post but with vacan-
cy-Second vacancy reserved for Scheduled Castes and fourth for Scheduled 
C Tnoes filled by general candidate since reserved candidates not available-<ith 
vacancy-Reserved candidate available-Authorities enjoined to consider the 
claim of reserved candidate-Power of Government to fuse all posts of equal 
scale of pay for applying role of reservation or successive vacancies arising in 
single post-Constitution of Indi~rticles 16(1) and 16(4). 
D 
The claim of Respondent No. 2 to be promoted as office Superinten-
dent In a Supertlme Scale on the basis that be was a reserved candidate 
in the 6th vacancy was rejected by the High Conrt on the ground that since 
the post of Superintendent was a single post, it could not be reserved for 
the reserved candidates. The High Court issned a direction to the Govern-
E ment to consider the case of a general candidate for promotion to the post 
of Office Superintendent. Hence appeal by the State. 
F 
Allowing the appeal, this Court 
HELD : 1.1. In the Government Circular bearing Letter No. 21-AG-
I-125-KG-20165, the Government provided for reservation and prepared 
the roaster the posts in the cadre. Sample roaster for all categories of first, 
second, third and fonrtb division of service have been given: Second 
vacancy is reserved for Scheduled Castes, fourth vacancy for Scheduled 
Tribes and first, third, sixth and seventh vacancies are unreserved. It was 
G stated that in the matter of reservation, if there is only one vacancy, the 
second turn of vacancy of the same post would be filled by appointment of 
person fro.;.~erved castes. The roaster is not concerned with the post 
but with vacancy arising according to the roaster and will go on im· 
plementing the vacancy arising In each successive ·occasions. Thns In 
H considering the qnestlon whether a person can be considered for promo-
318 
STATE v. B.PRASAD 
319 
lion from the reserved category on the basis of the roaster, it is not the A 
post that is material but it is the vacancy which is material. [320-B-F] 
1.2. In the instant case when second and fourth vacancy, reserved for 
Scheduled Castes and Scheduled Tribes, have beeu filled by general can-
didates since reserved candidates were not, then available, when 6th vacan-
cy had arisen and the claim of the reserved candidate was available, the 
authorities were enjoined to consider the claim of the reserved candidate. 
Under these circumstances, the second respondent was rightly considered 
for promotion and was legally promoted as Superintendent. 
[320-H, 321-A-B] 
B 
c 
Dr. Chabradhar Paswan v. State of Bihar and Ors., AIR (1988) SC 959, 
distinguished. 
CIVIL APPELLATE JURISDICTION : <;:ivil Appeal No. 7478 of. 
1994. 
D 
From the Judgement and order dated 5392 of the High Court of 
Patna in CWJC No. 4220/90. 
B.B. Singh for the Appellants. 
K.N. Rai for the Respondents. 
E 
The following Order of the Court was delivered : 
Leave granted. 
This appeal by Special Leave is directed against the judgment of 
the High Court of Patna in C.W.J.C. No. 4220/90 dated March 5, 1992. F 
the only question that arises for consideration is whether Sita Ram 
Prasad, respondent No. 2 was entitled to be promoted as Office Super-
intendent . in a Supertime scale' on the basis that he was a reserved 
candidate in the 6th vacancy. The High Court in the impugned Judgment 
relying on the Judgment of this Court in Dr. Chakradhar Paswan v. State G 
of Bihar & Ors., AIR (1988) SC 959 held that since the post of 
Superintendent is a single post, it cannot be reserved for the reserved 
candidates. Accordingly, the order of appointment to the reserved.vacan-
cy was held to be illegal, a direction was issued to the Government to 
consider the case of the 1st respondent for promotion to the post of H 
320 
SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R. 
A O.S. as a general candidate. The State has impugned that order in this 
appeal. 
In the Government Circular, Annexure R-1 bearing Letter No. 21-
AG-I-125-KG-20165, the Government have decided in providing for 
B reservation and prepared the roaster to the posts in the cadre. In 
paragraph 2, it is stated thus : 
c 
''Therefore, ihe State Government has taken decision that for the 
removal of this cri

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