2026:JHHC:16578-DB Page | 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3495 of 2024 --------- 1. Pradeep Kumar, aged about 50 years, S/o – Mangardeo Oraon, resident of Village & PO- Chiyanki, PS- Daltonganj, District-Palamau, PIN 822102 (Jharkhand) 2. Ram Badan Singh, aged about 44 years, S/o Sudin Prasad Singh, resident of Jay Prakash Nagar, Bariyatu Road, Near Saint Judes, P.O.-Bariatu, P.S- Sadar District- Ranchi 834009. (Jharkhand) … … Petitioners Versus 1.The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Building, P.O. & P.S. -Dhurwa, Ranchi - 834004. 2. The Development Commissioner, Government of Jharkhand, Nepal House, PO & PS - Doranda, Ranchi- 834002. 3. The Principal Secretary, Department of Finance, Government of Jharkhand, Project Building, P.O. & P.S. - Dhurwa, Ranchi -834004. 4. The Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Project Building, P.O. & P.S. - Dhurwa, Ranchi 834004. 5. The Principal Secretary, Road Construction Department, Government of Jharkhand, Project Building, P.O. & P.S. Dhurwa, Ranchi - 834004. 6. Vinay Kumar, Superintending Engineer, presently posted at Jharkhand Urban Infrastructure Development Corporation(JUIDCO), Ranchi under Urban Development & Housing Department, Jharkhand, PO + PS-Dhurwa, Ranchi-834004 7. Devashish Lehri, Superintending Engineer, presently posted at Advance Planning, Circle, Road Construction Department, Jharkhand, PO + PS-Dhurwa,Ranchi- 834004. 2026:JHHC:16578-DB Page | 2 8. Satyendra Prasad Singh, Superintending Engineer, presently posted at Road Division, Road Construction Department, PO+PS+ Dist- Koderma-825410. 9. Abhinendra Kumar, Superintending Engineer presently posted at Urban Development and Housing Department, Jharkhand, P.O.+PS-Dhurwa Ranchi- 834001. 10.Saifullah Ansari, Superintending Engineer, presently posted under Building Construction Department, Jharkhand, , PO + PS-Dhurwa, Ranchi 834004. 11.Santosh Kumar, Superintending Engineer, presently posted under Rural Works Department, Jharkhand, PO + PS-Dhurwa, Ranchi - 834004. 12.Kundal Kumar, Superintending Engineer, presently posted at Field Survey Division, Advance Planning, Road Construction Department, Jharkhand, PO+PS-Dhurwa Ranchi- 834004 13. Jaikant Ram, Superintending Engineer, presently posted at Road Construction Department, National Highway Circle, PO+PS-Dhurwa, Ranchi-834004 14.Sunil Kumar Rajak, Superintending Engineer, presently posted as Member (Technical), State Highways Authority of Jharkhand (SHAJ), Deen Dayal Nagar, PO+PS- Booty Road, Ranchi-834008. 15. Vijay Kumar Das, Superintending Engineer, presently posted under Rural Works Department, Jharkhand, PO +PS Morabadi, Ranchi – 834008. 16.Kumar Krishnanand Das, Superintending Engineer, presently posted under Building Construction Department, Jharkhand, PO+PS. Dhurwa Ranchi- 834004. 17.Kanhee Prasad, S/o Sri Sitaram Sao, resident of Village Dumri, Dakghar, Chechadhi, PO & PS-Obra, District-Aurangabad (Bihar) presently posted as Executive Engineer, Building Construction Corporation, GOJ, Dhanbad, PO & PS Dhanbad, Dist. Dhanbd. 18.Ajeet Kumar, S/o Ashok Saw, resident of village Pihara, PO & PS Pihara, Dist. Giridih, Jharkhand. … … Respondents with W.P. (S) No. 3508 of 2024 2026:JHHC:16578-DB Page | 3 1. Rameshwar Sah, aged about 59 years, S/o. Late Roshan Sah, R/o. House NO.1583D12, Jamuna Roshan Bhawan, Samlong, Near Lakhani Enclave, PO & PS - Samlong, District - Ranchi, PIN 834010 (Jharkhand) 2. Deo Sahay Bhagat, aged about 56 years, S/o. manga Bhagat, resident of Village Panduka, PO- Temki, PS- Latehar, District - Latehar, PIN 829206 (Jharkhand) 3. Dukha Mandal, aged about 56 years, S/o. Chhoharam Mandal resident of Near KhadiBhandar N.H 80, Chhota Panchgarh P.O & P.S- Jirwabari District- Sahebganj (Jharkhand) 816109. 4. Nagendra Nath Deonath, aged about 58 years, S/o. Molindra Deonath, R/o. Aman Greens Apartment, Flat No.105, Sabalpur, PO- KG Ashram, PS- Saraidhela, District Dhanbad, PIN 828109 (Jharkhand) 5. Sunil Kumar, aged about 58 years, S/o. Late Bhabhishan Prasad Singh, residing at Mayank Kunj, Nand Nagar, CRP Colony, Harmu, PO - Doranda, PS- Argora, District - Ranchi, PIN 834022 (Jharkhand) 6. Bal Kishore Kisku, aged about 57 years, S/o. Budhan Kisku, R/o. Housing Colony, Bariatu, PO & PS - Bariatu, District Ranchi, PIN 834009 (Jharkhand) versus 1.The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Building, P.O. & P.S. -Dhurwa, Ranchi - 834004. 2. The Development Commissioner, Government of Jharkhand, Nepal House, PO & PS - Doranda, Ranchi- 834002. 3. The Principal Secretary, Department of Finance, Government of Jharkhand, Project Building, P.O. & P.S. - Dhurwa, Ranchi -834004. 4. The Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Project Building, P.O. & P.S. - Dhurwa, Ranchi 834004. 5. The Principal Secretary, Road Construction Department, Government of Jharkhand, Project Building, P.O. & P.S. Dhurwa, Ranchi - 834004. 2026:JHHC:16578-DB Page | 4 6. Vinay Kumar, Superintending Engineer, presently posted at Jharkhand Urban Infrastructure Development Corporation(JUIDCO), Ranchi under Urban Development & Housing Department, Jharkhand, PO + PS-Dhurwa, Ranchi-834004 7. Devashish Lehri, Superintending Engineer, presently posted at Advance Planning, Circle, Road Construction Department, Jharkhand, PO + PS-Dhurwa,Ranchi- 834004. 8. Satyendra Prasad Singh, Superintending Engineer, presently posted at Road Division, Road Construction Department, PO+PS+ Dist- Koderma-825410. 9. Abhinendra Kumar, Superintending Engineer presently posted at Urban Development and Housing Department, Jharkhand, P.O.+PS-Dhurwa Ranchi- 834001. 10.Saifullah Ansari, Superintending Engineer, presently posted under Building Construction Department, Jharkhand, , PO + PS-Dhurwa, Ranchi 834004. 11.Santosh Kumar, Superintending Engineer, presently posted under Rural Works Department, Jharkhand, PO + PS-Dhurwa, Ranchi - 834004. 12.Kundal Kumar, Superintending Engineer, presently posted at Field Survey Division, Advance Planning, Road Construction Department, Jharkhand, PO+PS-Dhurwa Ranchi- 834004 13. Jaikant Ram, Superintending Engineer, presently posted at Road Construction Department, National Highway Circle, PO+PS-Dhurwa, Ranchi-834004 14.Sunil Kumar Rajak, Superintending Engineer, presently posted as Member (Technical), State Highways Authority of Jharkhand (SHAJ), Deen Dayal Nagar, PO+PS- Booty Road, Ranchi-834008. 15. Vijay Kumar Das, Superintending Engineer, presently posted under Rural Works Department, Jharkhand, PO +PS Morabadi, Ranchi – 834003. 16.Kumar Krishnanand Das, Superintending Engineer, presently posted under Building Construction 2026:JHHC:16578-DB Page | 5 Department, Jharkhand, PO+PS. Dhurwa Ranchi- 834004. 17.Kanhee Prasad, S/o Sri Sita Ram Saw, posted as Executive Engineer, Building Construction Corporation, GOJ, Dhanbad, PO & PS Dhanbad, Dist. Dhanbad. 18.Arbind Kr. Verma, S/o Late Babulal Verma, R/o SSri Shiv Sai Tower, phase 2 Flat 201 New Area Morabadi, presently executive engineer RCD, Government of Jharkhand, P.O and P.S. Bariatu, District Ranchi. ... Respondents --------- CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ---------- For the Petitioner(s) : Mr. Jitendra Singh, Sr. Adv. Mr. Amit Kumar Das, Advocate Mr. Yash Singh, Advocate Mr. Sankalp Goswami, Advocate Mr. Komal Tiwary, Advocate For the Resp.-State : Mr. Rajiv Ranjan, Advocate General Mr. Manish Mishra, GPV Ms. Varsha Ramasisari, AC to GP V Mr. Apoorva Singh, AC to SC (Mines) II For the private Resp : Mr. Ajit Kumar, Sr. Advocate Mr. Krishna Murari, Advocate Mr. Ritesh Pathak, Advocate Mr. Sameer Saurabh, Advocate Ms. Isha Kaushik, Advocate Mrs. Aprajita Bhardwaj, Advocate ----------- C.A.V on 18/04/2026 Pronounced on_09/06/2026 Per Sujit Narayan Prasad, J: 1. Since the issues involved in both the writ petitions are identical, therefore, at the request of learned counsel for the parties, the matters have been tagged together. Accordingly, they are heard together and are being disposed of by this common order. 2. It would further be worth to mention herein that initially the matter was being heard by learned Single Judge. 2026:JHHC:16578-DB Page | 6 However, the learned Single Judge considering the issue involved in the lis, vide order dated 07.01.2026 directed to list the matter before the Division Bench, with the leave of Hon‟ble the Chief Justice. 3. For ready reference, order dated 07.01.2026 passed by learned Single Judge, is quoted as under: “Heard learned counsel representing the petitioners and learned counsel representing the respondents. 2. The promotion and appointment to the post in the Engineering Cadre in the State of Bihar were governed by the “Bihar Engineering Service Class I Rules, 1939” (in short “the Rules of 1939”). In the year 2016, the Government of Jharkhand promulgated the “Jharkhand Engineering Service Recruitment Rules, 2016” (in short “the Rules of 2016”). The Rules of 2016 by virtue of Rule 21 repealed all the Rules, Regulations, Orders and Instructions, which were in force immediately before the date of commencement of “the Rules of 2016”. This means “the Rules of 1939” stood repealed. 3. The validity of the Rules of 2016 is under challenge in W.P.(S) No.3027 of 2016 (Ashok Kumar Roy &Ors. Vs. The State of Jharkhand &Ors.)and other Analogues cases. The said writ petitions are pending. Admittedly, there is no stay of the Rules of 2016. 4. In an interlocutory application being I.A. No.6527 of 2017 filed in W.P.(S) No.3027 of 2016, vide order dated 17th August, 2017, a Division Bench of this Court modified the absolute stay order dated 26th September, 2016, passed in respect of promotion from the post of Assistant Engineer to the post of Executive Engineer. As per the modification, promotion to the post of Executive Engineer from the post of Assistant 2026:JHHC:16578-DB Page | 7 Engineer were not to be filled up as per the Rules of 2016, meaning thereby, the promotion will be granted as per the earlier Rules, Regulations and Policies but the said promotions were made subject to the final result of the writ petition. This means that the promotion to the post of Executive Engineer from the post of Assistant Engineer will be in terms of the Rules of 1939, which though already stood repealed by the Rules of 2016, yet by this order got a lease of life for a limited purpose. 5. Further, another Division Bench of this Court in L.P.A. No.198 of 2025 (Kanhaee Prasad Vs. Pradeep Kumar &Ors.) vide order dated 28.04.2025 (modified vide order dated 07.05.2025), at para-33, held that the promotion from the post of Assistant Engineer up to the Executive Engineer is to be considered on the basis of Rules of 1939. This order is in consonance with the Division Bench‟s order passed in I.A. No.6527 of 2017 in W.P.(S) No.3027 of 2016. At para34, the Division Bench went on to hold that so far as promotion to the post of Superintending Engineer and up to the level of Engineerin-Chief, it will be open to the State to grant promotion on the applicable Rules. This means any promotion to the post of Superintending Engineer and up to the level of Engineer-in-Chief, will be as per the applicable Rules, i.e. the Rules of 2016, as the Rules of 2016 has not yet been stayed. 6. Thus, an anomaly crops up. In the entire Engineering service, a particular post is to be filled up by promotion taking into consideration the Rules of 1939, which already stood repealed and has got revived only for a limited purpose by virtue of the order of the Division Bench and rest of the promotion is to be affected by giving benefit of the Rules of 2016. 7. Now the State in the matter of promotion in Engineering Service Cadre, vide Resolution dated 07.03.2022 (Annexure-16 to the writ petition), has 2026:JHHC:16578-DB Page | 8 suomoto by executive instructions, stayed the operation of the Rules of 2016 and revived the Rules of 1939 till disposal of W.P.(S) No.3027 of 2016. 8. Further, another aspect is that the State had made a statement before the Division Bench in W.P.(S) No.3027 of 2016 and other Analogous cases that they are in the process of repealing and amending the Rules of 2016 also, which according to the State is under process. Considering the aforesaid submission, the aforesaid writ petitions were being deferred from time to time. Ultimately on 19.12.2025, the Division Bench initiated a suo moto contempt and issued notice under Rule 393 of the Jharkhand High Court Rules to the Principal Secretary, Department of Personnel, Administrative Reforms & Rajbhasha, Government of Jharkhand and also to the Secretary, Road Construction Department, Government of Jharkhand. The next date fixed is 22nd January, 2026 in the aforesaid writ petitions. 9. Considering the overall scenario and the position where both the Rules (one repealed and one which is in force as on date) are being given effect to by different orders of this Court, it will be prudent that all these matters be heard by the Division Bench together with the other writ petition i.e. W.P.(S) No.3027 of 2016. 10. Let these cases be referred to the Hon‟ble Division Bench of this Court, with the leave of Hon‟ble the Chief Justice.” 4. Pursuant thereto, the matter was placed before the Hon‟ble Chief Justice in its administrative side, whereby the matter has been assigned to Division Bench II and as such the matter has been heard by this Bench. 2026:JHHC:16578-DB Page | 9 Prayer in W.P.(S) No. 3495 of 2024 5. In the instant writ application the petitioner is praying for issuance of appropriate writ(s), order(s), direction(s) seeking following reliefs:- “a. For holding and declaring that the Resolution No.933(S) dated 07.03.2022 (Annexure 16) of the Road Construction Department whereby, inter alia, the Respondent Authorities had stayed the operation of Jharkhand Engineering Service Recruitment Rules, 2016 [hereinafter referred to as "2016 Recruitment Rules"] and reinforcing into operation the 1939 Class- I & II Rules, though the latter had been repealed and wiped out by Rule 21 of the aforesaid 2016 Recruitment Rules, which is still in existence and validity of which is under consideration before the Division Bench of this Hon'ble Court and without even leave of this Hon'ble Court sought for the same is not only beyond the competence of Respondent Authorities but also contemptuous, unsustainable and as such quash the same. (b)For quashing the Seniority list dated 02.02.2018 as contained in Notification No.712(S) (Annexure 7) of the Executive Engineer's grade whereby those who were promoted to the post of Executive Engineer years later to the Petitioners have been assigned Seniority above the Petitioners in contravention of the provisions of Rule 8 of the 2016 Rules and Rule 27 of 1939 Class I Rules as well, being illegal and as such quash the same. (c).For directing the Respondent Authorities to consider the cases of Petitioners for grant of promotion to the post of Superintending 2026:JHHC:16578-DB Page | 10 Engineers and above from the date the juniors to the petitioners have been granted promotion vide notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 (Annexure 15, 18 & 21). (d).To quash and set aside the Notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 (Annexure 15, 18 & 21) of the Road Construction Department, Jharkhand whereby promotions have been granted to Private Respondents arrayed herein contrary to the provisions of 2016 Rules, even 1939 Class I Rules and conveniently, at times on the basis of illegally finalised seniority list dated 02.02.2018 and at times on the basis of Gradation list dated 05.05.2015 of Assistant Engineers under the repealed 1939 Rules. Prayer made in W.P. (S) No. 3508 of 2024 6. In the instant writ application the petitioner is praying for issuance of appropriate writ(s), order(s), direction(s) seeking following reliefs:- (a) For holding and declaring that the Resolution No.933(S) dated 07.03.2022 (Annexure 16) of the Road Construction Department whereby, inter alia, the Respondent Authorities had stayed the operation of Jharkhand Engineering Service Recruitment Rules, 2016 [hereinafter referred to as "2016 Recruitment Rules"] and reinforcing into operation the 1939 Class- I & II Rules, though the latter had been repealed and wiped out by Rule 21 of the aforesaid 2016 Recruitment Rules, which is still in existence and validity of which is under consideration before the Division Bench of this Hon'ble Court and without even leave of this Hon'ble Court sought for the same is not only beyond the competence of Respondent 2026:JHHC:16578-DB Page | 11 Authorities but also contemptuous, unsustainable and as such quash the same. (b).For quashing Seniority list dated 02.02.2018 (Annexure 7) of the Executive Engineer's grade whereby those who were promoted to the post of Executive Engineer years later to the Petitioners have been assigned Seniority above the Petitioners in contravention of the provisions of Rule 8 of the 2016 Rules and Rule 27 of 1939 Class I Rules as well, being illegal and as such quash the same. (c).For directing the Respondent Authorities to consider the cases of Petitioners for grant of promotion to the post of Superintending Engineers and above from the date the juniors to the petitioners have been granted promotion vide notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 (Annexure 15, 18 and 20). (d) To quash and set aside the Notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 (Annexure 15, 18 and 20) of the Road Construction Department, Jharkhand whereby promotions have been granted to Private Respondents arrayed herein contrary to the provisions of 2016 Rules, even 1939 Class I Rules and conveniently, at times on the basis of illegally finalised seniority list dated 02.02.2018 and at times on the basis of Gradation list dated 05.05.2015 of Assistant Engineers under the repealed 1939 Rules. 7. It is further pertinent to mention herein that when the matter was taken up on 13th April, 2026, Mr. Jitendra Singh, learned senior counsel for the petitioners has submitted that in view of the stand having been taken by the respondent-State, as mentioned in the counter 2026:JHHC:16578-DB Page | 12 affidavit that the Notification dated 02.02.2018 as contained in letter No.712/S as available in Annexure- CA-5 of the counter affidavit filed on behalf of the Respondent No.13 with the specific statement made at paragraph 13, the prayer so made for quashing the notification dated 02.02.2018 is no longer available and, as such, it may be rendered to be infructuous. 8. This Court considering the submission advanced on behalf of petitioner, is of the view that the prayer No. 1(b) in both the writ petitions has become infructuous. 9. For so far prayer 1(d), is concerned, submission has been made that the petitioners have only questioned the promotion granted to the private respondents who have been arrayed as party to the proceedings. For ready reference, relevant part of order dated 13th April, 2026 passed by this Court is quoted as under: “10. In course of argument, Mr. Jitendra Singh, learned senior counsel appearing for the petitioners, has submitted that in view of the stand having been taken that the Notification dated 02.02.2018 as contained in letter No.712/S as available in Annexure-CA-5 of the counter affidavit filed on behalf of the Respondent No.13 with the specific statement made at paragraph 13, the prayer so made for quashing the notification dated 02.02.2018 is no longer available and, as such, it may be rendered to be infructuous. 2026:JHHC:16578-DB Page | 13 11. Considering such submission, the prayer No. 1(b) has been rendered to be infructuous. 12. With reference to prayer no. 1(d), the learned senior counsel appearing on behalf of the petitioners has rightly submitted that notification is/are either dated 6.8.2019 or 21.10.204 or 11.1.2024 as Annexure 15,18 and 21 issued by the Road Construction Department, Government of Jharkhand and he has only questioned the promotion granted to the private respondents who have been arrayed as party to the proceeding.” 10. During pendency of the writ petitions, the petitioners have prayed for addition of the prayer in particular at paragraph 1(c) and corresponding prayer portion, by filing Interlocutory Applications being I.A. No. 4696 of 2026 in W.P. (S) No. 3495 of 2024 and I.A. No. 4694 of 2026 in W.P.(S) No. 3508 of 2024 to the effect that a direction be issued upon the respondents- authorities to consider the case of the petitioners for grant of promotion to the post of Superintending Engineers and above from the date the petitioners became eligible for such promotion or at least from the date the respondents had decided to fill up the said posts by granting promotion to the private respondents. Such prayer has been made taking the ground that petitioners being eligible for promotion and apart from that being seniors to the private respondents, the petitioners have also 2026:JHHC:16578-DB Page | 14 fulfilled the Kalawadhi had to be considered for promotion as and when the vacancy occurred. 11. However, the said Interlocutory Applications being I.A. No. 4696 of 2026 in W.P. (S) No. 3495 of 2024 and I.A. No. 4694 of 2026 in W.P.(S) No. 3508 of 2024 were not pressed by learned senior counsel for the petitioners, therefore, the same was dismissed as not pressed vide order dated 7th April, 2026. 12. Thus, now the remaining common prayer which is to be considered, is for declaring and quashing Resolution No.933(S) dated 07.03.2022 issued by the Road Construction Department whereby the Respondents had stayed the operation of Jharkhand Engineering Service Recruitment Rules, 2016 and reinforcing into operation the 1939 Class- I & II Rules; further for direction upon the Respondent to consider the cases of Petitioners for grant of promotion to the post of Superintending Engineers and above from the date the juniors to the petitioners have been granted promotion vide notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 (Annexure 15, 18 and 20) as also for quashing of such promotion orders. Factual aspects: 2026:JHHC:16578-DB Page | 15 13. Since the factual aspect, involved in both the writ petitions is different, therefore, for the sake of clarity, the factual aspect of both the cases, are mentioned herein separately. However, since the relief sought for in both the writ petitions are similar, and the issues involved are same and similar, as such they are taken up for analogous hearing and disposal. Factual Matrix in W.P.(S) No. 3495 of 2024 14. The petitioner nos. 1 and 2, belonging to Schedule Tribe Category, being Engineering Degree Holders from recognized Universities, were directly appointed in terms of provision of Bihar Engineering Service Class II Rules, 1939 as „Assistant Engineers‟ w.e.f. 14.08.2007. 15. While serving as such, a seniority list of „Assistant Engineers‟ were prepared in the year 2015 in which the petitioner nos. 1 and 2 were placed at serial no. 461/2015 and 465/2015 respectively. 16. The petitioners were promoted to the post of Executive Engineer on 01.12.2014. 17. It is the case of the petitioners that in terms of the provision of Engineering Services Class Rules 2016, the petitioners were eligible to be considered for promotion to the next higher post of Superintendent Engineer from January, 2020, after completion of continuance service 2026:JHHC:16578-DB Page | 16 of 05 years as Executive Engineer and on completing the required Kalawadhi under the then Rules, 2016 since w.e.f. 03.05.2016 new Rule in the name and style of „The Jharkhand Engineering Service Recruitment Rules, 2016‟ came into effect. 18. It is further case of the petitioners that vide press communiqué published on 11.11.2017 issued by the Road Construction Department, a provisional seniority list for the post of Executive Engineer was published supposedly under Rule 8 (iii) of Recruitment Rules, 2016 and objections were invited, to which the petitioners filed objections vide letter dated 16.11.2017 pointing out anomalies that how the seniority of the petitioners had adversely been affected. But without considering the objections so raised by the petitioners, the Road Construction Department, Government of Jharkhand published notification No. 712(S) dated 02.02.2018 whereby the seniority list re-determining the inter se seniority of engineers on the basis of their seniority as held on the post of Assistant Engineer has been published. 19. Grievance of the petitioners is that in the said seniority list dated 02.02.2018, the petitioners including those promoted on 01.12.2014 and those promoted later 2026:JHHC:16578-DB Page | 17 on, have now been assigned a position lower than that of others, who were promoted even after 8 years after the petitioners were substantively promoted on the post of Executive Engineer in violation of Rule 27 of Rules, 1939 and Rule 6 and 8 of Rules, 2016. 20. It has further been stated that the State came out with Resolution No.933(S) dated 07.03.2022 of the Road Construction Department whereby, the Respondent Authorities had stayed the operation of Jharkhand Engineering Service Recruitment Rules, 2016 reinforcing into operation the 1939 Class- I & II Rules, though the latter had been repealed and wiped out by Rule 21 of the aforesaid 2016 Rules. 21. Further submission has been made that vide Notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 of the Road Construction Department, the private respondents and some other persons, who were junior to the petitioners, were promoted to the post of Superintending Engineer. Factual Aspect in W.P.(S) No.3508 of 2024 22. In this case, all the petitioners are the Diploma Holders in Engineering from recognized institutions and they all belongs to Reserved Schedule Tribe category. The petitioners initially joined Sub-ordinate Engineering 2026:JHHC:16578-DB Page | 18 Services in the entry Grade Pay of Junior Engineer followed by further promotion to the next higher post(s) of Assistant Engineer on 10.03.2012 in Class II Engineering Service. 23. It is further stated that during existence of Rules, 1939, the petitioner no. 1 was promoted substantively to the post of Executive Engineer on 01.12.2014. The petitioner no. 2 was promoted substantively to the post of Executive Engineer on 27.05.2015; and petitioner nos. 3 to 6 on 13.07.2015 and their services were later on confirmed on the post of Executive Engineer. 24. It is the case of the petitioners that in terms of the provision of Engineering Service Rules, the petitioners were eligible to be considered for promotion to the next higher post of Superintendent Engineer from the year 2020, after completion of continuance service of 05 years as Executive Engineer but their cases have not been considered. 25. It is further case of the petitioners that in terms of the provision of Engineering Services Rules including 2016 Rules, the petitioners were eligible to be considered for promotion to the next higher post of Superintendent Engineer from or after January, 2020 onwards, after completion of continuance service of 05 2026:JHHC:16578-DB Page | 19 years as Executive Engineer and on completing the required Kalawadhi under the then Rules, 2016 since w.e.f. 03.05.2016 new Rule in the name and style of „The Jharkhand Engineering Service Recruitment Rules, 2016‟ was promulgated. 26. 26. It is further case of the petitioners that vide a press communiqué published on 11.11.2017 issued by the Road Construction Department, a provisional seniority list for the post of Executive Engineer was published supposedly under Rule 8 (iii) of Recruitment Rules, 2016 and objections were invited, to which the petitioners filed objections vide objection letter dated 16.11.2017 pointing out anomalies how the seniority of the petitioners had adversely been affected. But without considering the objections so raised by the petitioners, the Road Construction Department, Government of Jharkhand published notification No. 712(S) dated 02.02.2018 whereby the seniority list re-determining the inter se seniority of engineers on the basis of their seniority as held on the post of Assistant Engineer. 27. Grievance of the petitioners is that in the said seniority list dated 02.02.2018, the petitioners including those promoted on 01.12.2014 and those promoted later on, have now been assigned a position lower than that 2026:JHHC:16578-DB Page | 20 of others, who were promoted even after 8 years after the petitioners were substantively promoted on the post of Executive Engineer in violation of Rule 27 of Rules, 1939 and Rule 5 and 8 of Rules, 2016. 28. It has further been stated that the State come out with Resolution No.933(S) dated 07.03.2022 (Annexure 16) of the Road Construction Department whereby, the Responded Authorities had stayed the operation of Jharkhand Engineering Service Recruitment Rules, 2016 reinforcing into operation the 1939 Class- I & II Rules, though the latter had been repealed and wiped out by Rule 21 of the aforesaid 2016 Recruitment Rules. 29. Further submission has been made that vide Notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 of the Road Construction Department, the private respondents and some other persons, who were junior to the petitioners were promoted to the post of Superintending Engineer. Issue of Maintainability 30. Since the issue of maintainability has been raised on behalf of private respondents, including interveners, as such, this Court before proceeding to delving into the merit of the issue, deems it fit and proper to first decide 2026:JHHC:16578-DB Page | 21 the issue of maintainability, before entering into the merit of the matter, if requires. 31. One Interlocutory Application being I.A. No. 17331 of 2025 in W.P. (S) No. 3495 of 2024, has been filed on behalf of respondent no. 17, namely Kanhaee Prasad @ Kanhai Prasad, raising the issue of maintainability. 32. Pressing the Interlocutory Application on the issue of maintainability of the writ petition, Mr. Krishna Murari, learned counsel for the applicant has submitted that the challenge in this writ petition is the seniority list dated 02.02.2018 and consequential orders of promotion to the Cadre of Superintending Engineer dated 06.08.2019; 21.10.2022 and 11.01.2024, which is barred by law of law, as mandated by Hon‟ble Apex Court in the case of P.S. Sadasivaswamy Vs. The State of Tamil Nadu [(1975) 1 SCC 152] to be read with the judgment in the case of Union of India &Ors Vs. Chaman Rana [(2018) 5 SCC 798] holding therein that any challenge to the settled seniority and consequential promotions thereof must be made between six months to one year only and not thereafter, as the same has got cascading effect in the administrative harmony as a whole. Further the same 2026:JHHC:16578-DB Page | 22 is not maintainable on merit beside hit by waiver, acquiescence and estoppels. 33. Submission has been made that all the private respondents have been appointed in the basic cadre of Assistant Engineer about 15-20 years before the petitioners. The petitioners, who belong to ST Category, appointed as Assistant Engineer in the year 2007 by virtue of reservation. They also got promotion to the post of Executive Engineer being ST Category candidate but by virtue of accelerated promotion and the petitioners are invariably holding the post of In-charge Superintending Engineer and even Chief Engineer. Therefore, their approach is to disturb the regular chain of promotion so that they may continue by way of ad hoc arrangement on the higher post. 34. Submission has been made that by virtue of reservation in promotion, if anyone has got accelerated promotion, they cannot be granted accelerated promotion to the Cadre of Superintending Engineer ignoring the seniority of basic cadre. If the same is accepted, it will have impact of consequential seniority, which has been done away in the case of Raghubansh Prasad Singh Vs. State of Jharkhand [2024 SCC OnLine Jhar. 683]. 2026:JHHC:16578-DB Page | 23 35. It has been submitted that even otherwise the provisions of Rules of 2016 vis-a-vis Schedule-2 (serial Nos. 1, 2 and 3) relating to promotion to the Cadre of Engineer in Chief, Chief Engineer and Superintending Engineer and kalawadhi determined thereof has been also amended vide Resolution No.3241(S) dated 01.07.2019, wherein it has been provided that if any officer has stagnated in any particular Cadre for 20 years, then he may be granted promotion to the next Cadre on completion of one year of service itself, meaning thereby the kalawadhi provided under the Rules of 2016 for promotion to the post of Superintending Engineer, Chief Engineer and Engineer- in-Chief being five years, two years and two years respectively have been substantially modified by Resolution dated 01.07.2019. 36. It is stated that the aforesaid Resolution has been issued with the approval of the Cabinet of the State to that of 2016 Rule and impugned Annexure-22 dated 19.12.2023 and all have been duly gazette. Thus all have got the force of law in equality. In any case since the Resolution dated 01.07.2019 (Annexure-14 to the writ petition), has not been challenged, the contention of these petitioners that they should be granted further accelerated promotion to the post of Superintending 2026:JHHC:16578-DB Page | 24 Engineer is non-est in the eyes of law. In this regard reference may be made to the judgment of Amarjeet Singh &Ors. Vs. Devi Ratan & Ors reported in (2010) 1 SCC 417. 37. Further submission has been made that even the material facts has also been suppressed to the effect that many officers amongst them, who were promoted to the post of Superintending Engineers have also been promoted to the Cadre of Chief Engineer, as would be evident from Notification No. 19.12.2023 and 11.01.2024 but the same has not been challenged and even selective persons have been made party to the proceedings. 38. Learned senior counsel appearing for the petitioners has vehemently opposed to the Interlocutory Application filed on the issue of maintainability of the writ petition and submission has been made that the writ petition is very much maintainable. 39. Submission has been made that the issue of maintainability and entertainability are two different aspect of the matter. The issue of maintainability of writ petition filed under Article 226 cannot be allowed to be agitated since Article 226 is having extraordinary jurisdiction can be availed not only for the issuance of 2026:JHHC:16578-DB Page | 25 the appropriate writs but also for other issues raising the issue of the legal heads, as such the instant Interlocutory Application is fit to be dismissed and the matter is required to be heard on merit. 40. We have heard the parties on the issue of maintainability. 41. This Court, in order to decide the issue, requires to first refer the purport of Article 226 of the Constitution of India as it is available in its original concept conferring power to this Court to invoke the provision of Article 226 of the Constitution of India, if the aforesaid power has been invoked by any citizen of the country. 42. It needs to refer herein that the Article 226 of the Constitution of India confers power upon the High Court to issue certain writ. This Court further is of the view that in order to decide the issue of maintainability, the provision of Article 226 of the Constitution of India needs to be referred herein which reads as under :- Power of High Courts to issue certain writs (1)Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or 2026:JHHC:16578-DB Page | 26 any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2)The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3)Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without--(a)furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and(b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4)The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. 43. From perusal of Article 226 (1) it is evident that the jurisdiction of the High Courts under Article 226 is much wider, because the High Courts are required to 2026:JHHC:16578-DB Page | 27 exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged; which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights. 44. Article 226 (2) enabling the High Courts to exercise jurisdiction beyond their territorial limits when the cause of action arises, wholly or in part, within their jurisdiction. Further the power conferred by clause (1) of Article 226 to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. 45. It requires to refer herein that the High Court exercises its extraordinary jurisdiction under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. 2026:JHHC:16578-DB Page | 28 46. The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities, reference in this regard be made to the judgment rendered by the Hon‟ble Apex Court in the case of W.B. Central School Service Commission v. Abdul Halim, (2019) 18 SCC 39. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: “28. In any case, the High Court exercises its extraordinary jurisdiction under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the petitioner, or whether there has been lapse in performance by the respondents of a legal duty. 29. The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities. 30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the 2026:JHHC:16578-DB Page | 29 record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137] . If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ court by issuance of writ of certiorari. 31. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. 32. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ court does not interfere, because a decision is not perfect.” 47. Further it requires to refer herein that maintainability of a writ refers to whether a writ petition is legally competent to be heard by the court, while 2026:JHHC:16578-DB Page | 30 entertainability of a writ refers to the court's discretionary decision to hear a maintainable petition, often refusing to do so if an alternative statutory remedy exists. 48. It needs to refer herein that the Hon‟ble Apex Court in the case of M/S Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer cum-Assessing Authority & Ors, (Civil Appeal No.5393 Of 2010) has observed that though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. 2026:JHHC:16578-DB Page | 31 49. Herein, the issue of maintainability of the instant writ petitions has been raised on the ground that seniority cannot be agitated at a belated stage. It is undisputed that the settled position of law mandates that seniority, once determined, ought not to be disturbed after a reasonable period. However, it is equally well settled that writ courts, in exercise of jurisdiction under Article 226 of the Constitution of India, retain the discretion to entertain seniority disputes even at a delayed stage, provided the delay is reasonable and the claim is not stale. Furthermore, as discussed hereinabove, in order to safeguard vested and legal rights, the writ court may, if circumstances so warrant, issue appropriate prerogative writs. 50. It is evident from the settled position of law that there is no embargo in entertaining the writ petition and it is not fit to be dismissed, if any legal vested right has been agitated for its adjudication, rather, it is the proper forum/court available to invoke the jurisdiction of Article 226 of the Constitution of India to decide the issue either way; meaning thereby the power under Article 226 is well to be exercised by entertaining the writ petition for adjudication of the issue. 2026:JHHC:16578-DB Page | 32 51. It is not available for the petitioner/applicant that merely on the ground the issue of seniority has been raised, after lapse of 4-5 years, the writ petition is held not to be maintainable, rather, by entertaining the writ petition the issue is to be answered. 52. The High Court while exercising the power under Article 226 of the Constitution of India is having no restriction and the writ petition can well be entertained and has to be entertained, if any issue has been raised having no disputed question of fact. 53. Herein also, as would be evident from the factual aspect as available wherein mainly the prayer has been made for declaring Resolution No.933(S) dated 07.03.2022 issued by the Road Construction Department whereby the Respondents had stayed the operation of Jharkhand Engineering Service Recruitment Rules, 2016 and reinforcing into operation the 1939 Class- I & II Rules; further for direction upon the Respondent to consider the cases of Petitioners for grant of promotion to the post of Superintending Engineers and above from the date; the juniors to the petitioners have been granted promotion, vide notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 (Annexure 15, 18 and 20) as also for 2026:JHHC:16578-DB Page | 33 quashing of such promotion orders. Therefore, merely on the ground by holding the writ petition not maintainable, the writ petition is not proper to be thrown out, rather, this Court thought it proper to entertain the writ petition and decide the issue after going into the issues involved, which is available in the pleadings filed on behalf of respective parties to decide the issue. 54. The issues are – inter-se seniority, the issue of grant of promotion to the petitioners‟ vis-à-vis private respondents. The issue of inter-se seniority amongst the unreserved category and reserved category are the subject matter herein, based upon which the writ petitioners are claiming that since they are promoted to the post of Executive Engineer, the next hierarchy of basic cadre of Assistant Engineer; on the strength of promotion granted to the post of Executive Engineer from basic cadre of Assistant Engineer prior to the promotion granted in favour of private respondents, who are allegedly junior to them; as such the same being legal issue, is required to be considered for answering it either way. 55. 55. This Court, therefore, is of the view that the submission advanced on behalf of respondents- 2026:JHHC:16578-DB Page | 34 intervener that the writ petition is not maintainable is having no substance. 56. Accordingly, the Interlocutory Application being I.A. No. 17331 of 2025 stands dismissed. 57. The writ petitions are held to be maintainable. W.P. (S) No. 3495 & 3508 of 2024 : Submission on behalf of petitioners: 58. Learned senior counsel for the petitioners has submitted that Petitioners of W.P. (S) No. 3495 of 2024, being Engineering Degree-holders, and belonging to Schedule Tribe category, were directly appointed as Assistant Engineers w.e.f 14.08.2007 and promoted to the post of Executive Engineer on 01.12.2014. Whereas the petitioners of W.P. (S) No. 3508 of 2024 are diploma holders in engineering and belongs to Schedule Tribe category. The petitioner no. 1 initially joined as Junior Engineer on 14.02.1991 and the petitioner nos. 2 to 6 joined as Junior Engineer on 28.09.1995, so far petitioners of W.P. (S) No. 3508 of 2024 are concerned. Thereafter they were promoted to the post Assistant Engineer on 10.03.2012. Further, petitioner no. 1 was promoted to the post of Executive Engineer on 01.12.2014; whereas the petitioner no. 2 on 27.05.2015 2026:JHHC:16578-DB Page | 35 and petitioner nos. 3 to 6 on 13.07.2015 in terms of the Rule 27 of Rules, 1939 Class I Rules. 59. Submission has been made that petitioners were eligible to be considered for promotion on the post of Superintending Engineer, after completing the required Kalawadhi of 5 years under the then existing Rules, 2016 as also under Rules, 1939 Class I Rules having completed 50% Kalawadhi. 60. Learned senior counsel further referring to Rule 27 of the Rules, 1939 has submitted that seniority in the service is to be determined by the date of officers‟ substantive appointment to the service and in the case at hand the substantive appointment is the appointments/promotion as Executive Engineer, which was earlier followed for reckoning the seniority. 61. Further referring to Rule 8 of the Rules, 2016, which deals with seniority, submission has been made that even as per Rules, 2016, the case of the petitioners were required to be considered as per the seniority joining on the post of Executive Engineer. 62. It is case of the petitioners that in the Seniority list dated 05.05.2015 prepared for the Cadre of Assistant Engineers, Petitioner No. 1 and Petitioner No. 2 of W.P.(S) No. 3495 of 2024, were assigned Serial Nos. 2026:JHHC:16578-DB Page | 36 461/2015 and 465/2015, respectively. But, in terms of the provision of the above Rules, the Petitioners‟ Seniority is to be counted from the date of Confirmation and would rank Senior to those appointed and confirmed later or holding the post on a temporary basis. 63. It has further been submitted that by a press communiqué published on 11.11.2017 by the Road Construction Department, Government of Jharkhand whereby the respondent-State issued a provisional seniority list for the post of Executive Engineer in terms of supposedly under rule 8(iii) of Recruitment Rules, 2016 and invited objections, to which the petitioner objected by filing written objection but without considering the objections of the Petitioners, the Road Construction Department, Government of Jharkhand published vide Notification No.712(S) dated 02.02.2018; the Seniority list re-determining the inter-se seniority of engineers on basis of their seniority as held on the post of Assistant Engineer and not on the basis of date of substantive appointment (promotion) as provided under 1939 Class I Rules vide Rule 27 thereof. 64. In the Impugned Seniority List dated 02.02.2018, the petitioners including those promoted on 01.12.2014 2026:JHHC:16578-DB Page | 37 and those promoted later have now been assigned a position lower than that of the others who were promoted some even about 8 years after the petitioners were substantively promoted on the post of Executive Engineer. 65. Submission has been made that the said Seniority List dated 02.02.2018 is in clear contradiction and contravention of Resolution No.1862 dated 31.03.2003 promulgated by the State Government pursuant to amendment made in Article 164-A of the Constitution of India which categorically provide that Government Servants belonging to Schedule Castes and Schedule Tribes promoted on basis of Roaster Points will retain their Seniority which shall remain unaffected by promotion later to Government Servants of General and Other Categories, who shall rank junior to them. 66. 66. Giving emphasis, submission has been made that the said Resolution dated 31.03.2003 was challenged in W.P.(S) No. 5882 of 2003 and other analogous cases. A Division Bench of this Hon'ble Court vide Order and Judgment dated 06.03.2024 declined to interfere with the validity of the Resolution dated 31.03.2003. 67. Further submission has been made, however, during pendency of the writ petition since seniority list 2026:JHHC:16578-DB Page | 38 dated 02.02.2018 has been quashed by the authorities itself, as such, the petitioners did not press the prayer of challenging the seniority list dated 02.02.2018. 68. It has further been submitted that the Respondent Authorities purportedly in interest of work, as a onetime measure, amended part of schedule II r/w Rule-7 (iii) of the 2016 Rules for grant of promotions confined to a particular batch of the officers though not part of the approval accorded for main amendment by the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand on 08.10.2018, took a decision notified by the Road Construction Department vide Resolution No.3241(S) dated 01.07.2019 and in terms of the said Decision/Resolution while as a Rule providing that consideration of promotion of the eligible candidates who have completed the 'Kalawadhi' have to be considered and promotions effected. However, even after such exercise from amongst those eligible in case vacancies in higher promotional post remain unfilled, then amending requirements under the 2016 Rules provided that those Government Servants who had put in 20 years of service and also completed 1 year of regular service as Executive Engineer against requirement of 5 years under the Rules 2016 would be 2026:JHHC:16578-DB Page | 39 eligible for being promoted to the post of Superintending Engineer. 69. Pursuant to the above Resolution dated 01.07.2019 vide Notification bearing Memo No. 3950(S) dated 06.08.2019, Executive Engineers [some private respondents] were promoted to the post of Superintending Engineer, on the basis of seniority list dated 02.02.2018. 70. Further referring to one Vinay Kumar Sinha, who was promoted to the post of Superintending Engineer vide Memo No. 3950(S) dated 06.08.2019 submission is made that since he was promoted to the post of Executive Engineer only vide notification dated 13.07.2015 and thereby he even did not complete 5 years „Kalawadi. However, since he was superannuated on 31.12.2019, as such the petitioners have not made him party to the writ petition. 71. Submission has been made that validity of Jharkhand Engineering Service 2016 was challenged. In course of hearing of Writ Petitions challenging the validity of 2016 Rules, this Court vide order dated 17.08.2017 in WP(S) No. 3027 of 2016 and analogous cases, granted stay to the effect that promotion for the post of Executive Engineer from the post Assistant 2026:JHHC:16578-DB Page | 40 Engineer shall not be filled up by virtue of Rules, 2016, however, the Respondent State was permitted to continue to grant promotion in accordance with earlier rules, regulations and policies viz. the 1939 Rules from the post of Assistant Engineers to the post of Executive Engineers which shall be subject to the result of Writ Petitions. 72. It is the case of the petitioners that in the garb of order dated 17.08.2017, the Respondent Authorities arbitrarily, on pick and choose basis, by applying at at times the provisions of the 1939 Rules, at another time applying the provisions of 2016 Rules and at times applying both 2016 Rules and 1939 Rules have granted promotions to the posts of not only Executive Engineers but even to the posts of Superintending Engineer and Chief Engineer. 73. It has been submitted that when the order has been passed by the Co-ordinate Bench vide order dated 17.08.2017 for restricting to grant promotion on the basis of Rules, 2016 and promotion as per earlier Rules, Regulations and Government policies can be given, then coming out with decision at paragraph 5 of the resolution dated 07.03.2022 whereby all the promotions i.e., from the post of Assistant Engineer to Executive 2026:JHHC:16578-DB Page | 41 Engineer including hierarchical promotion from the post of Junior Engineer to Assistant Engineer, Executive Engineer to Superintendent Engineer, Superintending Engineer to Chief Engineer and Chief Engineer to Engineer-in-Chief, which has been decided to be granted on the basis of Rules, 1939, is not proper. 74. Submission has been made that the respondent- State in the garb of order dated 17.08.2017 passed in W.P. (S) No. 3027 of 2016 and analogous cases, vide resolution dated 07.03.2022 stayed the entire provisions of 2016 Rules and made 1939 rule effect to facilitate/enable the chain of promotions. 75. Submission has been made that Resolution dated 07.03.2022, staying the operation of entire 2016 Rules and making 1939 Class- I and II Rules effective for grant of promotion at all levels right up to Engineer-in-Chief is in teeth of aforesaid direction of this Court which confined grant of promotion under 1939 Rules only so far as promotion from the post of Assistant Engineer to Executive Engineer are concerned. 76. It has been submitted that once by the provision of Rule 21 of 2016 Rules, all rules, regulations, orders and instructions enforced immediately before the date of this rule were repealed by merely suspending the Rules by 2026:JHHC:16578-DB Page | 42 executive fiat, the Respondent-Authorities could not revive 1939 Class I and II Rules, which had ceased to exist. 77. Further submission has been made that vide memo no. 3463 dated 03.06.2022 the Department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand in view of the judgment rendered by the constitution Bench of the Hon‟ble Apex Court in the case of R.K. Sabharwal versus the State of Punjab (1995) 2 SCC 745 in the year 1995 provided that such of the reserved candidates belonging to either SC or ST who get promoted on account of their seniority over general and other candidates, such grant of promotion will not be counted as promotion granted on the basis of roaster points but under the general category leaving the roaster point reservation unaffected. 78. Learned senior counsel for the petitioner has submitted that vide notification dated 21.10.2022, 26 Executive Engineers [some private respondents] were promoted to the post of Superintending Engineers and some of them are juniors to the Petitioners. 79. Submission has been made even in terms of the mandate of Resolution no. ka-3286 dated 04.04.2014 of 2026:JHHC:16578-DB Page | 43 Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, the Petitioners who fulfilled the requirement of 'Kalawadhi' were first required to be considered for being granted promotion to the post of Superintending Engineer and only if after all such eligible Government Servants were so promoted and yet if vacancies survived on the Promotional Post of Superintending Engineer, recourse could be taken to consider and promote those who had completed 20 Years of Service with minimum 1 Year of Service as Executive Engineer even as per the said Resolution no. ka-10483 dated 24.10.2014, but without respecting the mandate of above resolution, promotion has been granted. But, the Respondent Authorities ignoring the mandate and decision of the Respondent State contained even in resolution dated 04.04.2014 and 24.10.2014 of the Department of Personnel, Administrative Reforms and Rajbhasa did not consider first of the eligible candidates who fulfilled the requirement of „Kalawadhi' like the Petitioners but ignoring the claim of Petitioners who were eligible, have granted promotion to Juniors to the Petitioner vide Notification dated 11.01.2024 which is not sustainable. Argument on behalf of State: 2026:JHHC:16578-DB Page | 44 80. Learned Advocate General appearing for the State has submitted that originally, the recruitment and service conditions of the petitioners were regulated by the Bihar Engineering Service Class-I and Class II Rules, 1939. However, after promulgation of the Jharkhand Engineering Service Recruitment Rules, 2016 effective from 03.05.2016, the said Rule was repealed. 81. Submission has been made that validity of the Rules, 2016 was challenged before this Court by filing writ petition being W.P. (S) No. 3027 of 2016, in which, an interim order was passed on 17.08.2017 whereby the respondents were directed to grant promotion from the post of Assistant Engineer to the post of Executive Engineer as per earlier prevailing Rules. 82. Therefore, keeping in view the order passed this Court dated 17.08.2017, as also in the interest of better administrative management, resolution dated 07.03.2022 was issued by the Department, duly approved by the Cabinet. 83. So far the promotions granted to the private respondents are concerned, submission has been made that since the Division Bench of this Court vide order dated 28.04.2025 in L.P.A. No. 198 of 2025 [Kanhaee 2026:JHHC:16578-DB Page | 45 Prasad Vs. Pradeep Kumar &Ors.] has clarified that “...So far as promotion to be granted to the post of Superintending Engineer up-to the level of Engineer-in- Chief is concerned, it is upon the State of grant promotion on the applicable rules...”. 84. On the strength of order aforesaid, the promotion was granted to the private respondents, as per applicable rule, which cannot be said to be granted in violation of relevant rules. 85. Further submission has been made that though the private respondents were promoted to the post of Executive engineer after the petitioners were promoted but they are senior to the petitioner as per „Catch Up‟ Rules. Therefore, submission has been made that no junior to the writ petitioners have been granted promotion to the post of Superintending Engineer. 86. Lastly, submission has been made that the candidature of the petitioners will be examined on the basis of available vacancies and other criteria necessary for promotion to the post of Superintending Engineer in the next Departmental Promotion Committee. Submission on behalf of private respondents: 87. Learned counsel for the private respondents, in particular respondent nos. 6, 12, 14 to 16 has 2026:JHHC:16578-DB Page | 46 submitted that the private respondents were appointed to the post of Assistant Engineer somewhere in the year 1989/1995 whereas the petitioners have been appointed after a gap of 18 years i.e. in the year 2007 and thus the private respondents are much senior than the petitioners. 88. Further submission has been made that in the meanwhile, the respondent State authorities had also issued a final seniority list of the Assistant Engineers vide notification no. 3015 (S) dated 05.05.2015; in which the name of the answering respondent no. 6,12,14,15 and 16 appears at Sl. 243, 318, 327, 330, 332 whereas the names of the petitioners of WPS No. 3495 of 2024 appears at Sl. No. 461 and 465 respectively, meaning thereby that the petitioners are much junior to the private respondents. 89. It is stated that the certain provisions of the Jharkhand Engineering Service Recruitment Rules, 2016 was challenged before this Hon'ble Court in W.P.(S) No. 3027 of 2016 and this Hon'ble Court vide order dated 17.08.2017 has itself stayed the operation of the Rules of 2016 and directed the respondent-State to grant promotion as per earlier prevailing Rules, Regulations and Government policies. 2026:JHHC:16578-DB Page | 47 90. The private respondents have been given first promotion of service to the post of Executive Engineer after about 33 years that too in light of the order dated 08.06.2022 and 10.03.2022 of the Hon'ble Division Bench in W.P.(S) No. 3027 of 2016, wherein it has been stated by this Court that already five years have lapsed since the order dated 17.08.2017. 91. It has further been submitted that for the employees having their first appointment at the entry level which is the level of basic entry grade, there has to be one seniority list as per the order of merit/seniority in the basic entry grade of first appointment. For engineers of Bihar Service/Jharkhand Engineering Service the basic entry grade of the first appointment is the post of Assistant Engineer and in the instant case as both the petitioners and private respondents had initially been appointed/promoted on the post of Assistant Engineer, the basic entry grade. All other posts above the post of Assistant Engineer are promotional cadre posts and not by way of direct appointment. 92. As per clause 3 (1) (c) of the circular of 1975, seniority of direct recruits shall be according to their respective position as recorded by the competent 2026:JHHC:16578-DB Page | 48 authority at the time of their first appointment; as Clause 3 (1) (b) categorically stipulates that "promoted officers shall keep the position inter-se which they held in the service from which they have been promoted, meaning thereby the seniority position that was held by them at the basic entry level shall be regained upon promotion. 93. Further, it may also be relevant to mention that both the petitioner as well as the private respondents had initially been appointed to the post of Assistant Engineer, however the petitioners due to accelerated promotion were promoted to the post of Executive Engineer earlier than the private respondents. But, as per the seniority list of the cadre of Assistant Engineers, the private respondents were much senior to the petitioners, thus the moment the private respondents are promoted to the next promotional post of Executive Engineer, they shall regain their seniority. 94. It is also relevant to mention that the petitioners, in the instant case, have adopted a pick and choose method while arraying the private respondents and have not arrayed all the necessary parties. 95. It has further been submitted that a similar issue has been decided by the Hon'ble Division Bench of the 2026:JHHC:16578-DB Page | 49 Patna High Court in L.P.A. No. 1946 of 2016 whereby and whereunder the Division Bench has categorically held that in cases where out of turn promotion on account of roster points are given to the employees of reserved category and the other employees belonging to general category who are although senior to such employees on their subsequent promotion to the same cadre, they regain their seniority. 96. However, herein the respondents had been appointed on the post of assistant Engineer sometime in the year 1989/1995 itself which is way back the petitioners appointment and it was just because the petitioners belonged to the reserved category i.e. Scheduled Tribe and they were granted promotion to the post of Executive Engineers before the respondents. Therefore, the claim of the petitioners that since they were promoted to the post of Executive Engineers prior to the private respondents and the claim that the petitioners are senior is out and out wrong and illegal and ought not be allowed by this Court. 97. Further submission has been made that from perusal of order dated 02.09.2024 passed in the instant writ petition, it would be evident that the petitioners have contended that the respondents has stayed the 2026:JHHC:16578-DB Page | 50 operation of the Jharkhand Engineering Service Recruitment Rules 2016 and other regulations, circulars, orders and government policies and are giving promotion as per the old Rules of 1939 which is illegal and unlawful whereas the fact remains that the Division Bench of this Hon'ble Court has in W.P.(S) No. 3027 of 2016 andanalogous cases has stayed the operation of the Rules of 2016 and has directed the respondent State to grant promotion as per earlier Rules, Regulations. 98. 98. It is further submitted that all the actions of the respondent State authorities are absolutely correct and in consonance with law as because for different posts in the same department, different Rules for promotion cannot be applied and therefore in light of the directions of this Hon'ble Court a decision was taken by the respondent State authorities to grant promotions from the earlier Rules of 1939 as well as earlier issued regulations, circulars etc. vide resolution dated 07.03.2022. 99. The claim of the petitioners that they were granted promotion to the post of Executive Engineers before the respondent and therefore since they were appointed as Executive Engineers prior to the respondents they are senior is out and out wrong and illegal in view of the fact 2026:JHHC:16578-DB Page | 51 that the petitioners were appointed to the post of Executive Engineer earlier only due to accelerated promotion. 100. Learned counsel appearing for the intervener- Arbind Kumar Verma has submitted that pursuant to the recommendation of Bihar Public Service Commission, Patna, he was appointed on the post of Assistant Engineer on 30.06.1995, whereas the petitioners were appointed on the post of Assistant Engineer on the reserved post of Schedule Tribes on 14.08.2007, which is sufficient to prove that the petitioners are 12 years junior to the intervener. 101. It has further been submitted that in the gradation list of Assistant Engineer issued vide Memo dated 05.05.2015, the intervenor placed at serial no. 339 whereas the petitioners of WPS No. 3495 of 2024, have been placed at 461 and 465, which also shows that the intervenor is much senior to the petitioner. 102. However, after extending the benefit of reservation in promotion, the petitioners were promoted to the post of Executive Engineer on 01.12.2014 in the category of Schedule Tribe. Whereas, the intervenor has been promoted to the post of Executive Engineer on 2026:JHHC:16578-DB Page | 52 21.10.2022 by a notification issued vide memo no. 3910 dated (S) dated 21.10.2022. 103. Submission has been made that the intervenor after being promoted to the post of Executive Engineer has regained his seniority in terms of the principle of catch-up rule. In terms of his seniority being regained, he has further been promoted to the post of Superintending Engineer vide memo dated 09.05.2025. 104. That after coming into the effect of 85th Constitutional Amendment in the matter of promotion the benefit of consequential seniority were provided to the members of Scheduled Caste and Scheduled Tribe Category. The 85th Constitutional Amendment was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of M. Nagraj Versus Union of India reported in (2006) 8 SCC 212 held that Clause (1) and Clause (4) of the Article 16 of the Constitution of India embody the principle of equality under Article 14 and it has been held that in every case where the State decides to provide reservation in promotion to the Scheduled Caste and Scheduled Tribes the said decision must be based on i.e.(i) Backwardness (ii) Inadequacy of representation keeping in mind the 2026:JHHC:16578-DB Page | 53 overall efficiency of the State Administration under Article 335 of the Constitution of India. 105. 105. In the light of the 85th Constitutional Amendment State of Jharkhand came out with the Resolution issued vide Memo No.1862 dated 31.03.2003 by which Article 16(4A) of the Constitution of India was given effect to. The said resolution was challenged before this Court in several writ petitions including W.P.(S) No.5882 of 2003. 106. It has been submitted that because of some interim orders in one or other writ petitions by this Court the benefit of reservation in promotion with consequential seniority was not implemented in the State of Jharkhand. 107. In W.P.(S) No.2151 of 2005 and W.P.(S) No. 1667 of 2006 this Court vide order dated 12.09.2007 and 03.12.2007 respectively, directed the State to prepare the gradation/seniority list in terms of the Resolution No. 1862 dated 31.03.2003. Two Civil Review Petitions were filed vide Civil Review No. 07 of 2008 and Civil Review No.10 of 2008. This Court recalled the order dated 12.09.2007 and 03.12.2007 passed in W.P.(S) No.2151 of 2005 and W.P.(S) No.1667 of 2006 with direction that if any action has been taken pursuant to 2026:JHHC:16578-DB Page | 54 the order passed in the writ petition, then the same will be ineffective. 108. The State of Jharkhand has not complied the conditions imposed by the Hon'ble Supreme Court in the case of "M. Nagraj" (supra) and accordingly this Court vide order dated 06.03.2024 passed in W.P.(S) No.5882 of 2003 and analogous cases, held that Resolution No.1862 dated 31.03.2003 does not confer a blanket power to provide reservation in promotion with protection to the consequential seniority to the Scheduled Caste and Scheduled Tribe in Government Employment, as such the said resolution shall not be given effect to till rules / guidelines / executive instructions are issued based on the requirements as mandated by the Hon'ble Supreme Court in M. Nagaraj (supra) "Jarnail Singh-I" "Jarnail Singh-II" and other decisions of the Hon'ble Supreme Court. 109. 109. The Hon'ble Supreme Court in Civil Appeal Nos.6631-6632 of 2015 (S. PaneerSelvam and Others Versus Government of Tamil Nadu and Others) reported in (2015)10 SCC 292 has held as follows: 'In the absence of any provision for consequential seniority in the rules, "catch-up rule" will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the 2026:JHHC:16578-DB Page | 55 date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority." 110. In the instant case also the intervenor and respondent nos. 6 to 16 are senior to the petitioners in the Feeder Cadre i.e. Assistant Engineer, as such the intervenor and respondent nos. 6 to 16 after their promotion on the post of Executive Engineer, regained their seniority over the petitioners who were promoted by getting the benefit of reservation in promotion on the roster point of Scheduled Tribe. 111. Submission has been made that the petitioners are not entitled for the benefit of reservation in promotion with consequential seniority when the "Catch-up Rule" became applicable as decided in the case of Union of India and others Versus Virpal Singh Chauhan and others reported in (1995) 6 SCC 684. 112. It is stated that the intervenor and respondent nos. 6 to 16 are much senior to the writ petitioners, but the writ petitioners got accelerated promotion on the post of Executive Engineer by getting the benefit of reservation in promotion. 113. The intervenor and respondent no. 6 to 16 after being promoted on the post of Executive Engineer regained their inter-se seniority in terms of the 2026:JHHC:16578-DB Page | 56 principle of Catch-up Rules. The intervenor and respondent no, 6 to 16 after being promoted to the post of Executive Engineer regained their seniority over the writ petitioners. Since the intervenor and respondent nos. 6 to 16 are senior to the writ petitioners, they were promoted to the post of Superintending Engineer, as such the claim of the writ petitioners is completely against the law as they are junior to the intervenor and respondent nos. 6 to 16. 114. The petitioners have also filed a writ petition vide W.P.(S) no. 2796 of 2025 before this Hon'ble Court in which promotion of the intervenor and others on the post of Superintending Engineer has been challenged and they also claimed promotion on the post of Superintending Engineer prior to the intervenor. In the said writ petition, the petitioners have claimed reservation in promotion with consequential seniority. 115. Learned counsel further submits that the issue involved in the writ petitions, i.e., W.P.(S) no. 3495 of 2024 and W.P.(S) no. 2796 of 2025 are same and if the prayer made in the instant writ petition, is being allowed then the same will directly affect the case of the petitioner, i.e. W.P.(S) no. 2796 of 2025. Analysis: 2026:JHHC:16578-DB Page | 57 116. Heard learned counsel for the parties, perused the documents available on records as also the relevant rules/circulars and case laws as enunciated by Hon‟ble Apex Court on the lis. 117. This Court after having heard learned counsel for the parties is required to consider the following issues: I. Whether the writ petitioners have got any claim merely because they have been granted promotion under 50% saved quota due to availability of posts in their quota prior to consideration of promotion of the private respondents? II. Whether the grant of promotion in favour of private respondents can be said to suffer from error in absence of any rule formulated by the State Government in terms of judgment passed by Hon‟ble Apex Court in the case of M. Nagraj Vs. Union of India & Ors. [(2006) 8 SCC 212] and consequent judgments rendered in the case of Ajit Singh Januja (I) Vs. State of Punjab (1996) 2 SCC 715 and Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209? III. Whether the order passed by the Division Bench of this Court in LPA 198 of 2025 is of any help to the writ petitioners in claiming 2026:JHHC:16578-DB Page | 58 their accrued right in absence of grant of promotion to the post of Superintendent Engineer? 118. Since all these issues are inter-linked as such, they are taken up together to be answered. 119. This Court for consideration of the aforesaid issues needs to refer herein first the admitted facts regarding the date of entry of their basic cadre of Assistant Engineer; date of promotion to the post of Executive Engineer and later promotions, if any. 120. Admittedly, the petitioners of both the writ petitions belong to Schedule Tribe Category. 121. The petitioners of W.P. (S) No. 3495 of 2024, having possessed Engineering Degree were directly appointed as Assistant Engineers w.e.f 14.08.2007 and promoted to the post of Executive Engineer on 01.12.2014. 122. So far as petitioners of W.P. (S) No. 3508 of 2024 are concerned, they are diploma holders in engineering. The petitioner no. 1 initially joined as Junior Engineer on 14.02.1991 and the petitioner nos. 2 to 6 joined as Junior Engineer on 28.09.1995. Thereafter they were promoted to the post Assistant Engineering on 10.03.2012. Further, petitioner no. 1 was promoted to the post of Executive Engineer on 01.12.2014; whereas 2026:JHHC:16578-DB Page | 59 the petitioner no. 2 on 27.05.2015 and petitioner nos. 3 to 6 on 13.07.2015. 123. So far private respondents are concerned, as per pleading available on record, they belong to unreserved category and possessed Engineering Degree and they have been directly appointed on the post of Assistant Engineer sometimes in the years 1989/1995, admittedly much prior to the appointment of petitioners in both writ petitions so far as the post of Assistant Engineers are concerned. 124. It is admitted fact that a seniority list was published for the Cadre of Assistant Engineers, in which, the name of the respondent no. 6,12,14,15 and 16 appeared at Sl. 243, 318, 327, 330, 332 whereas the names of the petitioners of W.P. (S) No. 3495 of 2024 appeared at Sl. No. 461 and 465 respectively, meaning thereby that the petitioners are much junior to the private respondents, so far the basic post of Assistant Engineer is concerned. 125. It is evident from the record that after extending the benefit of reservation in promotion/accelerated promotion, the petitioners were promoted to the post of Executive Engineer on 01.12.2014 in the category of Schedule Tribe. At that time, the case of the private respondents was not considered for promotion to the 2026:JHHC:16578-DB Page | 60 post of Executive Engineer due to non-availability of their seats in their respective quota. 126. Later on, the private respondents/intervenor (s), when the seats was made available, they were promoted to the post of Executive Engineer on 21.10.2022 by a notification issued vide Memo no. 3910 dated (S) dated 21.10.2022. 127. The dispute arose, when the private respondents have been granted promotion to the next hierarchal post of Superintending Engineer vide Notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 of the Road Construction Department, Jharkhand as also later promotions, aggrieved thereof, mainly these writ petitions have been filed. 128. Learned senior counsel for the petitioners has submitted that since the petitioners were since promoted to the post of Executive Engineer sometimes in the year 2014/2015, as such they are eligible to be considered for promotion on the post of Superintending Engineer after completing the required Kalawadhi of 5 years under the then existing Rules, 2016. 129. Learned senior counsel further referring to Rule 27 of the Rules, 1939 has submitted that seniority in the service is to be determined by the date of officers‟ substantive appointment to the service and in the case 2026:JHHC:16578-DB Page | 61 at hand the substantive appointment is the appointments/promotion as Executive Engineer, which was earlier followed for reckoning the seniority. 130. Further referring to Rule 8 of the Rules, 2016, which deals with seniority; submission has been made that even as per Rules, 2016, the case of the petitioners were required to be considered as per the seniority in joining on the post of Executive Engineer. Besides that, in support of their case, learned senior counsel for the petitioners referred various circulars. 131. On the other hand, it is specific case of the private respondents as also the State that due to accelerated promotion/reservation in promotion, the petitioners, though joined the post of Assistant Engineer later than the private respondents, they got the promotion to the post of Executive Engineer prior to the private respondents. However, when the seat became available as per roster, the private respondents were promoted to the post of Executive Engineer, as per catch up principle; and regained their seniority and accordingly, the promotion to the hierarchical posts were granted to them. 132. There is no dispute over the applicability of Rules as referred by learned senior counsel for the petitioners 2026:JHHC:16578-DB Page | 62 but herein the main issue is with respect to „catch-up principle and „consequential seniority‟. 133. On this issue i.e., as to whether reservation in promotion also grants consequential seniority and; whether Seniority determination when reserved category candidates get accelerated promotion, the Hon‟ble Apex Court in the case of Union of India and Others Vs. Virpal Singh Chauhan and others [(1995) 6 SCC 684] has held that while „reservation in promotion‟ is valid under Article 16(4), but it does not automatically entitle the reserved category candidates to consequential seniority. Seniority in a particular grade must be based on actual length of service in that grade and not accelerated promotion due to reservation. In essence, Virpal Singh Chauhan (supra) is a bridge judgment, which upheld reservation in promotion but denied automatic seniority, laying the groundwork for later debates on the “catch-up rule” and quantifiable data requirements. 134. In this Judgment, the Hon‟ble Apex Court has taken reference of the judgment rendered in the case of R.K. Sabharwal Vs. State of Punjab & Ors. [(1995) 2 SCC 745] as also the judgment rendered in the case of Indra Sawhney Vs. Union of India [1992 (Suppl.) 3 2026:JHHC:16578-DB Page | 63 SCC 217. For ready reference, relevant paragraphs of the judgment are being quoted as under: 29. The Constitution Bench has, however, made it clear that the rule enunciated by them shall operate only prospectively [vide para 11]. It has further been held in the said decision that the “percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength (and that) the concept of „vacancy‟ has no relevance in operating the percentage of reservation”. (As a matter of fact, it is stated that this batch of cases were also posted for hearing before the Constitution Bench along with R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] batch of cases but these cases were delinked on the ground that they raise certain other issues which did not arise in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .) Be that as it may, as a result of the decision in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] and the views/findings recorded by us hereinabove, the following position emerges: (i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in para 5 of R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. (ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, 2026:JHHC:16578-DB Page | 64 class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies. (iii) So far as Railway Guards in Railway service are concerned — that is the only category we are concerned herewith — the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade „C‟ at any given point of time provided that at that given point of time, both the general candidates and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category. 33. Shri Dhavan points out yet another anomaly. Where a candidate belonging to Scheduled Caste gets selected on his own merit, i.e., in the general category, he will be treated as a general candidate and on that account he suffers prejudice vis-à-vis another reserved category candidate who could not be selected on his own merit (i.e. in the general category) and was selected only because of and under the rule of reservation. For illustrating his submission, learned counsel says, take an instance where out of forty candidates selected, a Scheduled Caste candidate 2026:JHHC:16578-DB Page | 65 selected on merit stands at Sl. No. 18 in the select list, whereas another Scheduled Caste candidate selected under and only because of the reserved quota stands at Sl. No. 33. But when the occasion for appointment arises, the Scheduled Caste candidate at Sl. No. 33 will be appointed against the first roster point, whereas the Scheduled Caste candidate at Sl. No. 18, being a general candidate has to wait for his turn. This, the learned counsel says, amounts, in effect, to punishing the Scheduled Caste candidate at Sl. No. 18 for his merit. Because he was meritorious, he was selected in general category and is treated as a general candidate. He suffers all the disadvantages any other general candidate suffers while another Scheduled Caste candidate, far less meritorious than him and who was selected only by virtue of rule of reservation, steals a march over him in the matter of initial appointment and in promotion after promotion thereafter. This is undoubtedly a piquant situation and may have to be appropriately rectified as and when the occasion arises. It is not pointed out that any such situation has arisen in the appeals before us. It is probable that many such situations may arise which cannot be foretold now. According to the general category candidates herein concerned, of course, the rule of reservation/roster has already given rise to many distortions. According to them, the representation of the reserved categories in Guard Grade „A‟ Special has reached 40 per cent as against the prescribed 22.5 per cent. It is not possible for us to say, on the material before us, how and why the said situation has come about. It may be partly because the rule now enunciated in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] was not there and was not being followed. It may also be that such a result has been brought about by a combined operation of the factors mentioned in (i) and (ii) above. The fact remains that the situation — 2026:JHHC:16578-DB Page | 66 assuming that it is what is described by the general candidates — cannot be rectified with retrospective effect now. The Constitution Bench in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are concerned, it is sufficient to direct that the Railway authorities shall hereinafter follow Rules (i), (ii) and (iii) (stated in para No. 29) with effect from the date of judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , i.e., 10-2- 1995. 135. So far, the ratio decendi in the case of R.K. Sabharwal Vs. State of Punjab & Ors. (1995) 2 SCC 745 is concerned, it has been held therein that reservation quotas apply to the total number of posts [cadre strength], not just vacancies. It has been held therein that once the percentage of representation for reserved categories is achieved in a cadre, the roster stops; further appointments must be made against vacant, designated category posts. For ready reference, the relevant paragraph of the judgment is quoted as under: 4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can 2026:JHHC:16578-DB Page | 67 compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward 2026:JHHC:16578-DB Page | 68 Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same. 6. The expressions „posts‟ and „vacancies‟, often used in the executive instructions providing for reservations, are rather problematical. The word „post‟ means an appointment, job, office or employment. A position to which a person is appointed. „Vacancy‟ means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a „post‟ in existence to enable the „vacancy‟ to occur. The cadre- strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of „vacancy‟ has no relevance in operating the percentage of reservation. 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. Jeevan Reddy, J. speaking for the majority in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] observed as under: (SCC p. 737, para 814) “Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward 2026:JHHC:16578-DB Page | 69 Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be.” 8. The quoted observations clearly illustrate that the rule of 50% a year as a unit and not the entire strength of the cadre has been adopted to protect the rights of the general category under clause (1) of Article 16 of the Constitution of India. These observations in Indra Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] 2026:JHHC:16578-DB Page | 70 are only in relation to posts which are filled initially in a cadre. The operation of a roster, for filling the cadre- strength, by itself ensures that the reservation remains within the 50% limit. Indra Sawhney case [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385 : AIR 1993 SC 477] is not the authority for the point that the roster survives after the cadre- strength is full and the percentage of reservation is achieved.” 136. It also requires to refer the law laid down in the case of Indra Sawhney Vs. Union of India (supra) which is also known as „Mandal Commission Case‟, of Hon‟ble Apex Court of Nine-Judge Judgment verdict of which has been upheld by 6:3 ratio holding 27% reservation of Other Backward Classes [OBCs] in Central Services. It established a 50% ceiling on total reservations, introducing the „creamy layer‟ exclusion and prohibited reservations in promotions. Meaning thereby it specifically held that total reservation should generally not exceed 50% ensuring balance between equality of opportunity and affirmative action. 137. Pursuant thereto, on the issue of reservation in Promotion Seniority and the application of reservation as also on the principle of Catch-up Rule in Service Law, the matter came up before Hon‟ble Supreme Court in the case of Ajit Singh Januja Vs. State of Punjab (supra). 2026:JHHC:16578-DB Page | 71 138. The core issue before the Hon‟ble Apex Court was as to whether the members of Scheduled Castes (SC) or Backward Classes (BC), who receive an 'accelerated promotion' ahead of their seniors due to reservation policies and a roster system, can claim seniority based on this promotion when being considered for subsequent promotions to higher, unreserved posts. 139. The appellants, belonging to the general category, argued that this practice was detrimental to their rights, creating a system where junior employees could permanently leapfrog their seniors, causing widespread demoralization and administrative inefficiency. 140. The Hon‟ble Apex Court took reference of the judgment rendered in the case of R.K. Sabharwal vs. State of Punjab (supra), wherein it was clarified that reservation applies to the number of “posts” in a cadre, not to the “vacancies” that arise. It was established that a reservation roster is a mechanism to achieve the required representation and ceases to operate once the prescribed percentage is met; and also considered the judgment rendered in the case of Indra Sawhney vs. Union of India (supra), it capped total reservations at 50% and deliberated on the extent of reservation in promotions. The Hon‟ble Apex Court also took reference of the judgment rendered in the case of Union of India 2026:JHHC:16578-DB Page | 72 vs. Virpal Singh Chauhan (supra), wherein it was held that giving the benefit of promotion by granting accelerated promotion, does not confer 'consequential seniority'. A senior general category candidate, upon their eventual promotion, would regain their rightful seniority over the junior reserved category employee who was promoted earlier. This principle became known as the "catch-up rule." 141. The Hon‟ble Apex Court distinguishing the „Accelerated Promotion from Consequential Seniority‟ has held that the purpose of accelerated promotion via the roster system is to ensure adequate representation for reserved categories, as envisioned by Article 16(4). However, this mechanism was never intended to rewrite the fundamental seniority list permanently. The promotion of a junior reserved candidate ahead of a senior general candidate is a procedural outcome of the roster, not a reflection of superior merit that would justify a permanent seniority advantage. 142. In sum and substance, Ajit Singh Januja (I) judgment established that while the rule of reservation permits accelerated promotion for SC/ST candidates, it does not confer accelerated or consequential seniority. The seniority between reserved and general category candidates in the promoted cadre 2026:JHHC:16578-DB Page | 73 is to be governed by their panel position in the lower grade. A senior general candidate who is promoted later than their junior reserved category counterpart will regain their seniority upon promotion, a principle that has since been defined as the "catch-up rule." 143. For ready reference, the relevant paragraph of the judgment is quoted as under: 7. If the contention of the respondents is accepted as has been done by the High Court that such appointees/promotees can be considered against posts meant for general category candidates merely because they have become senior on the basis of accelerated promotions then, according to us, that exercise shall amount to circumventing the judgment of the Constitution Bench of this Court in Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , because for all practical purposes the promotions of such candidates are being continued like a running account although the percentage of reservation provided for them has been reached and achieved. Once such reserved percentage has been achieved and even the operation of the roster has stopped, then how will it be permissible to consider such candidates for being promoted against the general category posts on the basis of their accelerated promotion, which has been achieved by reservation and roster. 9. Once the quota is full and roster has stopped for members of the Scheduled Castes and Backward Classes in respect of whom reservation has been made and roster has been prescribed then their case for promotion to a still higher grade against general category posts has to be considered not treating them as members of the Scheduled Castes or Backward 2026:JHHC:16578-DB Page | 74 Classes “on any crutch”. They cannot be promoted only on basis of their “accelerated seniority” against the general category posts. In R.K. Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] it was said that the candidates belonging to Scheduled Castes who compete on their own merit along with general category candidates then they are not to be counted within the percentage of reservation made for such candidates in the service, because they have competed with the general category candidates on their own merit. The same principle which has been enunciated by the Constitution Bench in the aforesaid case shall be applicable whenever a member of Scheduled Castes or Backward Classes has got accelerated promotion to a higher grade and is to be considered for further promotion to a still higher grade against general category posts. The accelerated promotions are to be made only against the posts reserved or roster prescribed. There is no question of that benefit being available when a member of Scheduled Castes or Backward Classes claims promotion against general category posts in the higher grade. It need hardly be pointed out that such candidates who are members of the Scheduled Castes or Backward Classes and have got promotion on the basis of reservation and application of roster before their seniors in the lower grade belonging to general category, in this process have not superseded them, because there was no inter se comparison of merit between them. As such when such seniors who belong to general category, are promoted later it cannot be said that they have been superseded by such members of Scheduled Castes or Backward Class who have been promoted earlier. While considering them for further promotion against general category posts if the only fact that they have been promoted earlier being members of Scheduled Castes or Backward Class is taken into consideration, then it shall violate the 2026:JHHC:16578-DB Page | 75 equality clause and be against the view expressed not only in the case of R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] by the Constitution Bench, but also by the nine-Judge Bench in the case of Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] where it has been held that in any cadre reservation should not exceed beyond 50%. The 50% posts already being reserved against which promotions have been made then any promotion against general category posts taking into consideration that they are members of the Scheduled Castes or Backward Classes, shall amount to exceeding the limit fixed in the case of Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] . 11. The Constitution Bench in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] has said in clear and unambiguous terms that after the quota is over and roster points are full, then the “running account” of roster shall stop and there is no question of promoting beyond the posts which had been reserved. In the said judgment it has been said in respect of members of Scheduled Castes that if they are appointed/promoted on their own merit, then such candidates shall not be counted towards the percentage of reservation fixed for them. On the basis of the same logic, whenever members of the Scheduled Castes are to be considered for promotion against posts which are not reserved for them, then they have to be selected on merit only. They cannot claim that as they had been promoted earlier from Grade „C‟ to Grade „B‟ on the basis of reservation and roster, in this process they have superseded the candidates belonging to the general category and even for promotion against general category posts in Grade „A‟ the only requirement shall be satisfactory record of service. 2026:JHHC:16578-DB Page | 76 15. When framers of the Constitution by Article 16 guaranteed equality of opportunity in matters of public employment, they aimed at combining democratisation with efficiency. In the process of democratisation Article 16(4) enabled the State to make provisions for reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services under the State. As has been pointed out by this Court that at the same time Article 335 of the Constitution enjoins to take into consideration the claims of the members of the Scheduled Castes and Scheduled Tribes “consistently with the maintenance of efficiency of the administration” while making appointments to services and posts in connection with the affairs of the Union or of a State. Thus it has been conceived by our Constitution that a process should be adopted while making appointments through direct recruitment or promotion in which the merit is not ignored. For attracting meritorious and talented persons to the public services, a balance has to be struck, while making provisions for reservation in respect of a section of the society. This Court from time to time has been issuing directions to maintain that balance in the public services so that there should not be discontentment, heartburning and frustration, which can never be held to be in the larger interest of the society. It has been pointed out in the case of Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] that reservation in promotions at various stages has resulted in considerable discontentment because many senior persons in spite of their efficiency and dedicated work find themselves superseded by their juniors belonging to the Scheduled Castes or Tribes for that reason alone. In many cases seniors to their horror find themselves made junior to even those who actually worked as their subordinates due to this factor alone. 2026:JHHC:16578-DB Page | 77 All concerned who are involved and interested in the uplift and growth of the nation have to work out a system by which the injustice done to a section of people in our society at a certain period of history can be rectified by providing protections to their descendants, but we have to be conscious, at the same time that the efficiency of the administration of the country is not harmed and there is no reverse discrimination. Promotion is an important incident of service. It covers both advancement between grades within the same class and between different classes. Seniority in service is one of the important factors in making promotion. Even where process of promotion by selection is adopted, seniority has an importance in case of equal merit. The principal object of a promotion system is to secure the best possible incumbents for the higher position while maintaining the morale of the whole organisation. The best public interest is served when equal opportunities for promotion exist for all qualified employees. Civil servants are able to move up “the promotion ladder” as the merit deserves and the vacancies occur. Right to equality enshrined in the Constitution is to be preserved by preventing reverse discrimination as well. The guarantee of equality requires maintenance of original or panel inter se seniority between the general category candidate and the earlier promoted reserved category candidate under the reservation policy, for promotion to the higher general vacancy. The equality principle requires exclusion of the factor of extra weightage of earlier promotion to a reserved category candidate because of reservation alone, when he competes for further promotion to a general category with a general category candidate, senior to him in the panel. Any other view would amount to reverse discrimination and violative of the guarantee of equality in Articles 14 to 16. 2026:JHHC:16578-DB Page | 78 16. We respectfully concur with the view in Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813 : JT (1995) 7 SC 231] , that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated “consequential seniority”. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-à-vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior 2026:JHHC:16578-DB Page | 79 and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.” 144. Thereafter, it would be relevant to refer herein that interlocutory applications were pressed before the Hon‟ble Apex Court for interpretation by the State of Punjab with respect to the case of Ajit Singh Januja v. State of Punjab (supra), which dealt with seniority and promotion of reserved and general category candidates. 145. The Hon‟ble Apex Court, considering the entire gamut of the matter in Ajit Singh (II) Vs. state of Punjab (supra) has held that Ajit Singh Januja (I) v. State of Punjab (supra) and Virpal Singh Chauhan v. the Union of India(supra) set out the right law and law laid down in Jagdish Lal v. State of Haryana 1997) 6 SCC 538 was not valid in this respect as it was limited to its own specific facts. For ready reference the relevant Paragraphs of the aforesaid judgment are being quoted as under: “The proper balancing of rights 2026:JHHC:16578-DB Page | 80 52. In the light of the above discussion, the proper balancing of the rights, in our view, will be as follows: The general candidates who are senior at Assistants' level (Level 2) and who have reached Superintendent Grade II (Level 3) before the reserved candidate moved to Level 4 (Superintendent Grade I), will have to be treated as senior at Level 3 also (Superintendent Grade II) and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a later point of time, are not first considered for promotion to Level 4, and if the roster-point promotee at Level 3 is treated senior and promoted to Level 4, there will be violation of Articles 14 and 16(1) of the Constitution of India. Such a promotion and the seniority at Level 4 has to be reviewed after the decision of Ajit Singh [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] . But if a reserved category candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above accords, in fact, with what was actually stated in Ajit Singh [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] . In that case, N.P. Singh, J. observed: (SCC p. 731, para 10) “It also cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for purpose of their promotion.” 53. That, in our view, is the correct approach for balancing the fundamental rights under Article 14 and Article 16(1) on the one hand and the provisions relating to reservation in Article 16(4) and Article 16(4-A) on the other. 55. We were initially of the view that it may not be necessary to go into the correctness of Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and that we could distinguish the same on the ground that all the reserved candidates there had got further promotions from 2026:JHHC:16578-DB Page | 81 the promotional level of Deputy Superintendents [ In Jagdish Lal3 the hierarchy of posts is Clerk, Assistant, Deputy Superintendent, Superintendent, etc.] before the general candidates reached that level. But from the table set out in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] it would be noticed that in that case, Jagdish Lal, the general candidate, reached the post of Deputy Superintendent on 27-10-1987 before the reserved candidate H.S. Hira was further promoted as Superintendent on 27-5-1988. Similarly, Ram Dayal, another general candidate got promoted as Deputy Superintendent on 16-1-1989 before the reserved candidates Sant Lal and Ajmer Singh got promoted as Superintendent on 8-2-1990 and 1-7-1990. In that view of the matter, it becomes necessary to go into the correctness of Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] on merits. As we would presently show, in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] the seniority rule which referred to continuous officiation and which applied to promotions made after providing equal opportunity as per rules — was delinked from the promotion rule and applied to roster promotees, which, in our view, was the main reason for arriving at a different result. 57. The Court in Jagdish La [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] delinked Rule 11 from the recruitment rules and applied the same to the roster promotees. For the reasons given already in regard to Ajit Singh [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] we hold that Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] arrived at an incorrect conclusion because of applying a rule of continuous officiation which was not intended to apply to the reserved candidates promoted at roster points. 58. The various rulings relied upon in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] do not, in our opinion, support the conclusions arrived at in that case. Some of these rulings were those where it was held 2026:JHHC:16578-DB Page | 82 that mere empanelment in a seniority list would not confer a right to promotion. Some other cases relied upon were cases where it was held that mere chances of promotions were not “conditions of service” which were protected. So far as the cases which held that mere inclusion of a name in a panel did not create any right to promotion, there could be no quarrel with the said proposition. So far as the cases like State of Maharashtra v. Chandrakant Anant Kulkarni [(1981) 4 SCC 130 : 1981 SCC (L&S) 562] and Mohd. Shujat Ali v. Union of India [(1975) 3 SCC 76 : 1974 SCC (L&S) 454] which held that mere chances of promotion were not conditions of service are concerned, they were not applicable to the present situation. It must be noticed that those cases arose under the States Reorganisation Act, 1956 where the words “conditions of service” were used in Section 115(7) of that Act. The factual position there was that when employees of two different States were integrated, their seniority in the parent States necessarily got affected. The proviso to Section 115(7) of the Act required that if the State to which they were allotted wanted to alter their “conditions of service”, previous permission of the Central Government was necessary. It was in that context that it was held that mere chances of promotions were not conditions of service and there was no question of seeking the sanction of the Central Government if chances of promotion were affected after allotment to a new State. In fact, the Central Government had issued orders under Section 115(7) that various other conditions of service in the parent State like salary, leave etc. alone would remain protected. The above cases were therefore not in point. The case in Mohd. Bhakar v. Y. Krishna Reddy [1970 SLR 768 (SC)] was in fact overruled in Mohd. Shujat Ali [(1975) 3 SCC 76 : 1974 SCC (L&S) 454] . So far as K. Jagadeesan v. Union of India [(1990) 2 SCC 228 : 1990 SCC (L&S) 231 : (1990) 12 ATC 742] was concerned, it related to a case where a person's seniority stood affected by an amendment to the rules and it was held that that did not make the rule 2026:JHHC:16578-DB Page | 83 retrospective. Syed Khalid Rizvi v. Union of India [1993 Supp (3) SCC 575 : 1994 SCC (L&S) 84 : (1994) 26 ATC 192] no doubt said that there was no “right to promotion” but even that case accepted that there was a right to be “considered” for promotion. So far as Akhil Bhartiya Soshit Karamchari Sangh v. Union of India [(1996) 6 SCC 65 : 1996 SCC (L&S) 1346] to which one of us (G.B. Pattanaik, J.) was party is concerned, that case, in our view, was correctly decided on facts because by the date the general candidate reached the higher category, the reserved category promotee who reached that category earlier had got a further promotion. Reference was also made in Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] to A.K. Bhatnagar v. Union of India [(1991) 1 SCC 544 : 1991 SCC (L&S) 601 : (1991) 16 ATC 501] . That was a case where ad hoc recruits were regularised subsequently and were placed below regular recruits. It was held that their past ad hoc service could not be taken into account since they remained out of the cadre until regularisation. That case, in our view, has also no application. Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] is, therefore, not correctly decided. Observations in Ashok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] which run contrary to Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] do not lay down correct law 59. We may state that there are various other observations made in Ashok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and we find that they run counter to the principles laid down by the nine-Judge Bench in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and the Constitution Bench in Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . In our view, these observations must, therefore, be treated as not laying down the correct law. Learned counsel for the 2026:JHHC:16578-DB Page | 84 parties were in agreement with this line of approach. We, therefore, leave Ashok Kumar Gupta [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] and do not deal with it any further. Was Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] not decided correctly, as contended by reserved candidates 60. We then come to another important point that was argued by learned Senior Counsel Shri K. Parasaran. It was argued that in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] the Court was concerned with a circular of the Railways dated 31-8-1982 which permitted discounting the seniority of roster promotee from the date of continuous officiation and which also stated that his seniority should be as per the ranking in the basic level. The Court in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] held that it was “permissible” for the Government to do so. It was argued by Shri K. Parasaran that it was one thing to say that it was “open” to the Government to deprive the roster promotee of the benefit of such seniority from the date of roster promotion but it was another thing to say that even if the Government thought it fit to give the benefit of seniority on the basis of roster promotion, the same should be tested on the anvil of Articles 14 and 16(1) of the Constitution of India. Thus, it was argued that Ajit Singh [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] went far beyond Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] when it held that any circular, order or rule granting seniority to the roster promotee would be violative of Articles 14 and 16(1) of the Constitution of India. 61. That brings us to a close examination of the main principle laid down in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and in Ajit Singh [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] . We shall first take up Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . In Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 2026:JHHC:16578-DB Page | 85 31 ATC 813] the facts were that the Court was concerned with a circular dated 31-8-1982 of the Railways which stated that the seniority of the roster promotees would be based on their panel position in the initial grade. The case involved two services — Guards and Station Masters. Railway Guards would be recruited as Guard C and promoted as Guard B, then as Guard A and as Guard (Special). Promotion was to be by rule of seniority-cum- suitability. In other words, these were non-selection posts. On the other hand, in the case of Station Masters, a selection process was involved for purposes of promotion. 62. It is argued by the reserved candidates that Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] was not correctly decided because in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] the Court went by a printed brochure and committed a factual mistake in thinking that the circular of the Railways itself required the panel seniority at the initial level to be reflected at higher levels. The same point was raised by the Indian Railways in its intervention applications IAs Nos. 10-12 of 1998. It was argued that in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] the Court erred in not noticing the full text of the circular dated 31-8-1982 which showed that as per para 319 of the Railway Establishment Code, Vol. 1, panels were required to be prepared at each level. 63. We have examined Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] closely in the light of the above objection. In our view, the above criticism is wholly unjustified and is based upon a wrong mixing up of the separate conclusions arrived at in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] in regard to two different sets of employees. As stated earlier, the Court was there concerned with posts of Railway Guards and also with posts of Station Masters. The former (i.e. posts of Guards) were posts governed by the rule of seniority-cum-suitability. In other words, for Guards, seniority would govern subject to omission of those found 2026:JHHC:16578-DB Page | 86 unsuitable for promotion. On the other hand, Station Masters' posts were governed by selection at every level of promotion. The learned Judge, Justice Jeevan Reddy, while dealing initially with the promotions of Guards (see p. 702 of SCC) from C Grade to B, from B to A, and from A to Special Grade A pointed out that the seniority-cum- fitness rule applicable in their cases resulted in the seniority at the level of Guard C in the initial panel being reflected from stage to stage, subject to fitness. When the learned Judge came to discuss the issues relating to Station Masters (see SCC p. 711) where merit and selection were involved, the learned Judge stated that separate panels were to be prepared at every level and also that those in an earlier panel would be senior to those in a latter panel. In either situation, it was laid down that the reserved candidates could not count their “seniority” on the basis of roster-point promotion. Learned Additional Solicitor General, Shri C.S. Vaidyanathan attempted to argue that what the Court said in paras 25, 26 was wrong as it assumed that seniority at Level 1 would get reflected in the levels higher up and what is stated in paras 46, 47 in regard to one previous panel having priority over a later panel would apply in all cases, even to Guards referred to in paras 25, 26. The said contention, in our view, is based on a mixing up of the cases of Station Masters and Guards who were governed by different rules of promotion. We are satisfied that there is no factual mistake committed in the judgment in Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . In fact, subsequent to Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] the Railways accepted the judgment and issued an order on 28-2-1997 both in regard to non- selection and selection posts. The point raised in the IAs by the Railways is therefore liable to be rejected. We shall refer to these IAs again in our separate judgment relating to individual cases. 2026:JHHC:16578-DB Page | 87 146. Again, the issue of „reservation in promotion‟ and „catch up‟ principle was raised in the case of M. Nagaraj v. Union of India (2006) 8 SCC 212. 147. Therefore, this Court before proceeding further, needs to refer herein the law laid down by Hon‟ble Apex Court in the case of M. Nagaraj v. Union of India (supra), wherein challenge was made to the vires of the (77th) Constitution amendment Act, 1995, (81st) Constitution amendment Act, 2000, (82nd) Constitution amendment Act, 2000 and (85th) amendment Constitution Act, 2001, by filing a writ petition(s) invoking jurisdiction of the Hon‟ble Supreme Court under Article 32 of the Constitution mainly on ground that it violate the basic structure of the Constitution. 148. It further needs to refer herein that the government inserted Article 16(4A) by way of 77th Amendment in the Indian Constitution, by which, the State was empowered to make reservations in case of promotions to Scheduled Castes and Scheduled Tribes, wherever it believed that there is no adequate representation of such groups in public services. 149. The 81st Constitution Amendment Act was brought permitting the government to lift the 50% cap on regular reservations by introduction of the „Carry Forward Rule‟ as under Clause 4B of Article 16. Due to this, the 2026:JHHC:16578-DB Page | 88 backlog of unfulfilled vacancies could now be carried forward from the previous years to the current year. 150. The 82nd Constitution Amendment Act added a provision to Article 335 of Constitution of India, by which, all the reservations which are made for ST/SC have to be in accordance with efficiency of administration. By adding a provision to this Article 335, the government ensured nothing can withstand it from relaxing the standard of evaluation or reducing qualifying marks in matter of reservation/promotion for ST/SCs. 151. The 85th Constitution Amendment Act, 2001 (enacted in 2002) amended Article 16(4A) of the Constitution of India to provide „consequential seniority‟ to SC and ST employees in government promotions. It ensures that SC/ST employees promoted earlier via reservation retain seniority over general/OBC candidate promoted later. 152. On the aforesaid factual aspect, following issues cropped before the Hon‟ble Supreme Court: I. Whether the amendments challenged by the petitioner are constitutionally valid or not? II. Whether the article 16(4A) and (4B) destroy the structure of article 16? 153. The Hon‟ble Supreme Court examined the validity of constitutional amendments enabling reservation in 2026:JHHC:16578-DB Page | 89 promotions for Scheduled Castes and Tribes, consequential seniority, and carrying forward unfilled vacancies and upheld the constitutional validity of all the aforesaid impugned amendments related to reservation in promotions for SCs and STs. The Hon‟ble Supreme Court further held that the amendments did not violate the basic structure of equality under Articles 14, 15 and 16 of the Constitution and the amendments are enabling provisions, allowing but not forcing the States to provide reservation in promotions if they identify backwardness, inadequate representation, and maintain overall efficiency. 154. However, the court observed that the States must collect „quantifiable data‟ to justify reservation under the prescribed constitutional requirements like the 50% ceiling limit, the concept of creamy layer, and not extend reservation indefinitely. It was clarified that even if the States have compelling reasons, the reservation cannot lead to excessiveness or breach the substantive constitutional limits. The Hon‟ble Supreme Court further laid down principles for examining the validity of specific State Acts providing for reservation in promotion in individual cases. 155. The Hon‟ble Supreme Court emphasized the catch- up rule. The catch-up rule is that the candidate who is 2026:JHHC:16578-DB Page | 90 from a reserved category gets promoted earlier than his senior general candidates in the feeder grade and he shall be junior to the senior general candidates in the promoted category. The court held that catch-up rule and consequential seniority are not beyond the amending power of the parliament. 156. The Hon‟ble Court upheld the Constitutional validity of Article 16(4B) inserted by the Constitution (81st Amendment) Act, 2000, which allowed for carrying forward of unfilled vacancies reserved for SCs/STs to subsequent years, to be treated separately from the vacancies of the year they are being filled. 157. It has been observed that by lifting the 50% ceiling on carry-over vacancies through Article 16(4B), while retaining the ceiling for current vacancies, a time factor comes into play. The States will now have to introduce a time-cap depending on the fact-situation, in the interest of overall administrative efficiency under Article 335. 158. It has been clarified that even for carrying forward unfilled vacancies, the States will have to show the existence of compelling reasons of backwardness, inadequacy of representation, and compliance with overall administrative efficiency in each case. 159. In sum and substance, the Hon‟ble Apex Court upheld the constitutional amendments enabling 2026:JHHC:16578-DB Page | 91 reservation in promotions for SCs and STs while reiterating the substantive constitutional limits and safeguards on the exercise of this power by the States. 160. For ready reference, the relevant paragraphs of the judgment are quoted as under: 86. Clause (4-A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4-A) of Article 16 emphasises the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4-A) will be governed by the two compelling reasons— “backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further, in Ajit Singh (II) [(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] this Court has held that apart from “backwardness” and “inadequacy of representation” the State shall also keep in mind “overall efficiency” (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government in providing for reservation in promotion for SCs and STs. 102. In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the “width test” and the test of “identity”. As stated hereinabove, the concept of the “catch-up” rule and “consequential seniority” are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional 2026:JHHC:16578-DB Page | 92 limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism, etc. Obliteration of these concepts or insertion of these concepts does not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of Backward Classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is—whether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by 2026:JHHC:16578-DB Page | 93 Parliament to overrule the decisions of this Court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] , Ajit Singh (I) [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239 : AIR 1996 SC 1189] , Ajit Singh (II) [(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] and Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets— “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality. 103. The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as 2026:JHHC:16578-DB Page | 94 also the limitations on the mode of exercise of the power. Though the amending power in the Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise. (See Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] .) Role of enabling provisions in the context of Article 14 106. The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. (emphasis added) Every discretionary power is not necessarily discriminatory. According to the Constitutional Law of India, by H.M. Seervai, 4th Edn., p. 546, equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of “guided power”. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred, would be corrected by the courts. This is the basic principle behind the enabling provisions which are incorporated in Articles 16(4-A) and 16(4-B). Enabling provisions are permissive in nature. They are enacted to balance equality with positive discrimination. The constitutional law is the law of evolving concepts. Some of them are generic, others have to be identified and valued. The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-à-vis efficiency which depends on the fact situation only and not 2026:JHHC:16578-DB Page | 95 abstract principle of equality in Article 14 as spelt out in detail in Articles 15 and 16. Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the second part is a positive concept which is enough to validate equalising measures depending upon the fact situation. 107. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4-A) and 16(4- B) is that the State is empowered to identify and recognise the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between “equality in law” and “equality in fact” (see Affirmative Action by William Darity). If Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4-A) and 16(4-B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling 2026:JHHC:16578-DB Page | 96 factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred. 109. In conclusion, we reiterate that the object behind the impugned constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and the constitutional limitations indicated above. 116. As stated above, Article 14 enables classification. A classification must be founded on intelligible differentia which distinguishes those that are grouped together from others. The differentia must have a rational relation to the object sought to be achieved by the law under challenge. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to the making of classification. Article 16(4-B) is also an enabling provision. It seeks to make classification on the basis of the differentia between current vacancies and carry-forward vacancies. In the case of Article 16(4-B) we must keep in mind that following the judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , the concept of post-based roster is introduced. Consequently, specific slots for OBCs, SCs and STs as well as GC have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category [Ed.: It would seem that this is the “replacement theory”.] . Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other 2026:JHHC:16578-DB Page | 97 hand. Article 16(4-B) is a direct consequence of the judgment of this Court in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) together form part of the same scheme. As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court 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] . They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional amendments, therefore, do not obliterate equality. Conclusion 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 held in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . 124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2026:JHHC:16578-DB Page | 98 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.” 161. It also requires to refer herein that similar issue crept up before the Hon‟ble Apex Court in the case of Suraj Bhan Singh Meena & Anr. Vs. State of Rajasthan & Ors. [(2011) 1 SCC 467], revolving the issue around the legitimacy of the State of Rajasthan‟s Notifications that introduced consequential seniority for Scheduled Castes (S.C.) and Scheduled Tribes (S.T.) candidates upon their promotion. The petitioners, comprising members of the Rajasthan Administrative Service, challenged these Notifications, asserting that they were ultra vires the Constitution as per the directives laid down in the M. Nagaraj v. Union of India (supra). 162. The Hon‟ble Apex Court, after hearing the parties, scrutinized as to whether the State had complied with the prerequisites of: - (i)Quantifiable data showcasing the backwardness of the S.C. and S.T. communities; (ii).Establishment of inadequacy in their representation within public services; (iii). Ensuring that such reservations do not impair administrative efficiency. 2026:JHHC:16578-DB Page | 99 163. The Hon‟ble Supreme Court found that the State of Rajasthan had not undertaken the mandatory exercise of collecting and presenting such quantifiable data, as mandated in M. Nagaraj case, Consequently, the provision of consequential seniority thereby was in violation of constitutional provisions and principles of equality enshrined in Articles 14, 15, and 16 of the Constitution. 164. For ready reference, the relevant paragraph of the judgment is quoted as under: 65. In effect, what has been decided in M. Nagaraj case [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is part recognition of the views expressed in Virpal Singh Chauhan case [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] , but at the same time upholding the validity of the Seventy-seventh, Eighty-first, Eighty-second and Eighty-fifth Amendments on the ground that the concepts of “catch-up” rule and “consequential seniority” are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Articles 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity. 66. The position after the decision in M. Nagaraj case [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and 2026:JHHC:16578-DB Page | 100 subject to the condition of ascertaining as to whether such reservation was at all required. 67. The view of the High Court is based on the decision in M. Nagaraj case [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the Notifications dated 28-12-2002 and 25-4-2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference. 68. Accordingly, the claim of petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No. 6385 of 2010 will be subject to the conditions laid down in M. Nagaraj case [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and is disposed of accordingly. Consequently, Special Leave Petitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed.” 165. In sum and substance, the Supreme Court reinforced the necessity for States to adhere strictly to constitutional guidelines while implementing reservation policies in promotions. By validating the High Court‟s annulment of Rajasthan's Notifications on the grounds of non-compliance with M. Nagaraj directives, the Court has underscored the imperatives of empirical justification and procedural rigor in affirmative action measures. This judgment ensures that while affirmative actions are permissible to enhance representation of marginalized 2026:JHHC:16578-DB Page | 101 communities, they must not contravene the broader principles of equality, meritocracy, and administrative efficiency enshrined in the Indian Constitution. 166. It further requires to refer herein the law laid down in the case of B.K. Pavitra Vs. Union of India [(2019) 16 SCC 129] wherein the Hon‟ble Apex Court upheld the validity of 2018 Karnataka Act providing consequential seniority in promotions to SC/ST employees. The Hon‟ble Court held that the Act did not violate Article 16(4A) or the M. Nagraj (supra) Judgment, as the State proved inadequacy of representation and that administrative efficiency was not compromised. For ready reference, the relevant paragraph of the judgment is quoted as under: “56.1.2. The State Legislature is competent to enact a law with retrospective or retroactive operation. The legislative competence of the State Legislature to enact law is traceable to Article 16(4-A). Merely because the legislation confers seniority with effect from 1978, will not lead to its invalidation : Cheviti Venkanna Yadav v. State of Telangana [Cheviti Venkanna Yadav v. State of Telangana, (2017) 1 SCC 283] (“Cheviti Venkanna Yadav”), Utkal Contractors & Joinery (P) Ltd. v. State of Orissa [Utkal Contractors & Joinery (P) Ltd. v. State of Orissa, 1987 Supp SCC 751] (“Utkal Contractors & Joinery (P) Ltd.”) and State of H.P. v. Narain Singh [State of H.P. v. Narain Singh, (2009) 13 SCC 165] (“Narain Singh”). 56.1.4. In terms of the decision in Virpal Singh [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] , the catch-up rule was to be applied 2026:JHHC:16578-DB Page | 102 with effect from 10-2-1995 (i.e. the date of the judgment in Sabharwal [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] ). According to the decision in Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , promotions granted prior to 1-3-1996 without following the catch-up rule are protected. Badappanavar [M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666 : 2001 SCC (L&S) 489] protects the promotions of reserved candidates based on consequential seniority which took place before 1-3-1996. 56.1.5. While judicial review allows courts to declare a statute as unconstitutional if it transgresses constitutional limits, courts are precluded from inquiring into the propriety or wisdom underlying the exercise of the legislative power. The motives of the legislature in enacting a law are incapable of being judicially evaluated. 56.1.6. Seniority is not a vested or an accrued right and hence it is open for the legislature to enact a law for dealing with it. 56.4. The decision in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] holds that the question as to whether a backward class of citizens is not adequately represented in the services under the State is a matter of subjective satisfaction. 56.5.Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] also notices the position that there is a presumption that the State is in the best position to define and measure merit and that there is no fixed yardstick to identify and measure the three factors on which quantifiable data has to be collected. 56.6. The decision in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : 2026:JHHC:16578-DB Page | 103 (2019) 1 SCC (L&S) 86] also holds that the test of determining the adequacy of representation in promotional posts is left wisely to the States. C. The challenge on the ground that the Reservation Act, 2018 does not exclude the benefit of consequential seniority in respect of the creamy layer in terms of the decision inJarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] is baseless. 56.17. Creamy layer as a concept can be applied only at the entry level or at appointment and has no application while granting reservations in promotion and allowing for consequential seniority. The Reservation Act, 2018 provides only for consequential seniority and the extent of reservation granted to SCs and STs at the entry level/in appointment is not under challenge. 58.3. Article 16(4-A) is an enabling provision which empowers the State to frame rules or enact a legislation granting reservations in promotions with consequential seniority subject to the fulfilment of the conditions laid down in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and modified by Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] . Following the decision in Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] , the State is required to show data only on the inadequacy of representation and efficiency of administration. The State of Karnataka, in exercise of the enabling power under Article 16(4-A) enacted the Reservation Act, 2018 in compliance with the conditions precedent to the exercise of the power stipulated in that Article. 58.4. The decision in Sabharwal [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548] lays down that in determining the 2026:JHHC:16578-DB Page | 104 inadequacy of representation of SCs and STs in promotional posts, the State may take the total population of a particular class and its representation in the service. The State has studied the extent of reservation in posts for SCs and STs in a “group” which is a collection of cadres. Hence, it cannot be said that the State failed to collect quantifiable data on the representation of SCs and STs in promotional posts. Without the grant of consequential seniority, the percentage of reservation will not reach the prescribed percentage. K. Conclusion 153. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act, 2018 is lacking in substance. Following the decision in B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] , the State Government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . The Reservation Act, 2018 has cured the deficiency which was noticed by B.K. Pavitra (1) [B.K. Pavitra v. Union of India, (2017) 4 SCC 620 : (2017) 2 SCC (L&S) 128] in respect of the Reservation Act, 2002. The Reservation Act, 2018 does not amount to a usurpation of judicial power by the State Legislature. It is Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] compliant. The Reservation Act, 2018 is a valid exercise of the enabling power conferred by Article 16(4-A) of the Constitution.” 167. It further requires to refer herein that two reference orders made by a two-Judges and three-Judges bench 2026:JHHC:16578-DB Page | 105 respectively to ascertain the correctness of the decision in M. Nagaraj v. Union of India, was placed before the Five-Judges Bench in the case of Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396. 168. The facts of the case primarily revolve around the constitutional validity of the judgment rendered in the case of M. Nagraj Vs. Union of India (supra) wherein the Hon‟ble Supreme Court had upheld the validity of Articles 16(4-A) and 16(4-B), which provided for reservations in promotions for SCs and STs in public employment. However, the Hon‟ble Supreme Court also imposed certain conditions, including the requirement for states to collect quantifiable data to demonstrate the backwardness of these communities and to ensure that reservations in promotions did not exceed the 50% ceiling limit. Additionally, the creamy layer concept was applied to SCs and STs, limiting the scope of reservations for those who had moved beyond backwardness. 169. The ground was taken by the petitioners in Jarnail Singh Case (supra) that M. Nagaraj (supra) judgment had erred in its interpretation of the constitutional provisions and the earlier decision in Indra Sawhney. It has been contended that the M. Nagaraj case wrongly required the States to collect quantifiable data on 2026:JHHC:16578-DB Page | 106 backwardness and incorrectly applied the creamy layer concept to SCs and STs. 170. While on the other hand, the respondents defended the Nagaraj decision, arguing that the Court‟s decision was consistent with the constitutional amendments that had introduced provisions for reservations in promotions and did not violate the basic structure of the Constitution. 171. On the basis of argument advanced mainly following issues cropped for consideration in Jarnail Singh Case. I. Whether the conclusion in the Nagaraj case that the state has to collect quantifiable data showing the backwardness of SCs and STs is invalid, as it contradicts the judgment of the nine-judge bench in Indra Sawhney? II. Whether the creamy layer principle should be applied to SCs and STs in relation to promotions, and whether the Nagaraj decision correctly interpreted this principle in the context of reservations for these communities? 172. The petitioners in Jarnail Singh and Ors. vs Lachhmi Narain Gupta and Ors (supra) made arguments in favour of revisiting the M. Nagaraj (supra) judgment. Submission was made that the requirement for the State to collect quantifiable data on the backwardness of SCs and STs was contrary to the decision in Indra Sawhney, which had held that SCs and STs were inherently backward and did not require 2026:JHHC:16578-DB Page | 107 any further proof of their backwardness for the purpose of reservations. Further submission was made that the creamy layer concept was not applied to SCs and STs in the Indra Sawhney case. They argued that Nagaraj Case had misinterpreted this judgement by extending the creamy layer concept to these communities. The petitioners also emphasised that once the Presidential List identifies a group as belonging to the SCs or STs, they should be considered backward, and there should be no further need for the state to prove their backwardness. Furthermore, the petitioners argued that Nagaraj failed to provide a clear test for determining the adequacy of representation of SCs and STs in public services, which was necessary for determining the need for reservations in promotions. 173. While on the other hand, the respondents, including the government, defended the M. Nagaraj judgment. They argued that the term “backwardness of the class” in Nagaraj referred not to SCs and STs as a whole but to the class of posts in government employment. According to the respondents, backwardness in relation to posts required the state to gather quantifiable data to ensure that reservations in promotions were justified and did not result in over- representation of any particular group. The respondents 2026:JHHC:16578-DB Page | 108 also contended that the creamy layer principle was correctly applied to SCs and STs in the M. Nagaraj judgement. They argued that this principle was consistent with Articles 14 and 16(1) of the Constitution, as it sought to ensure that only the genuinely disadvantaged members of these communities benefit from reservations, while those who had moved beyond backwardness (i.e., the creamy layer) were excluded from the benefits of reservations. Additionally, the respondents argued that the creamy layer principle did not interfere with the Presidential List of SCs and STs. It was only intended to exclude individuals from the creamy layer from receiving the benefits of reservations, and it did not alter the list of communities identified as SCs or STs under Articles 341 and 342 of the Constitution. 174. The Hon‟ble Supreme Court, after hearing the parties examined the correctness of the Nagaraj decision, has observed that the Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under: 2026:JHHC:16578-DB Page | 109 35. The learned Attorney General also requested us to lay down that the proportion of Scheduled Castes and Scheduled Tribes to the population of India should be taken to be the test for determining whether they are adequately represented in promotional posts for the purpose of Article 16(4-A). He complained that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] ought to have stated this, but has said nothing on this aspect. According to us, Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. For this purpose, the contrast of Articles 16(4-A) and 16(4-B) with Article 330 of the Constitution is important. Article 330 reads as follows: “330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People.—(1) Seats shall be reserved in the House of the People for— (a) the Scheduled Castes; (b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and (c) the Scheduled Tribes in the autonomous districts of Assam. 2026:JHHC:16578-DB Page | 110 (2) The number of seats reserved in any State or Union Territory for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State or Union Territory in the House of the People as the population of the Scheduled Castes in the State or Union Territory or of the Scheduled Tribes in the State or Union Territory or part of the State or Union Territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union Territory. (3) Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the total population of the State. Explanation.—In this Article and in Article 332, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published: Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the 2001 census.” It can be seen that when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is mandated by the Constitution. The difference in language between this provision and Article 16(4-A) is important, and we decline the invitation of the learned Attorney General to say any more in this behalf. 36. Thus, we conclude that the judgment in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC 2026:JHHC:16578-DB Page | 111 (L&S) 1013] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] is held to be invalid to this extent. 175. Giving the finding with respect to Quantifiable Data Requirement, the Hon‟ble Apex Court noted that the Nagaraj decision required states to collect quantifiable data to prove the backwardness of SCs and STs for reservations in promotions was directly contrary to the Indra Sawhney judgment, which had already recognised SCs and STs as socially and educationally backward without the need for further proof. In Indra Sawhney, the nine-judge bench had clearly stated that SCs and STs are inherently backward and do not need to prove their backwardness for the purpose of reservations. 176. The Hon‟ble Apex Court therefore held that the requirement in Nagaraj for states to collect quantifiable data on backwardness was unconstitutional and incompatible with the earlier ruling in Indra Sawhney. The Court emphasised that SCs and STs, by their very nature, are considered backward classes under the Constitution, and there was no need for further validation of their status as backward communities. 2026:JHHC:16578-DB Page | 112 177. So far finding with respect to Creamy Layer Principle, the Court upheld the decision in Nagaraj to apply the creamy layer principle to SCs and STs in relation to promotions. The Court noted that the application of the creamy layer principle is consistent with the Constitution‟s principle of equality (Article 14), as it ensures that only the genuinely backward individuals within these communities benefit from reservations, while those who have moved out of backwardness (the creamy layer) are excluded. 178. The Hon‟ble Apex Court has also clarified that the application of the creamy layer concept did not interfere with the Presidential List of SCs and STs under Articles 341 and 342 of the Constitution. The Court further explained that the creamy layer principle is not about altering the list of SCs and STs but about ensuring that only those members of these communities who are still socially and economically backward receive the benefits of reservations. 179. Accordingly, it was held that the Nagaraj decision did not need to be referred to a larger bench. It upheld the creamy layer principle for SCs and STs in promotions but struck down the requirement for quantifiable data on backwardness, as it was contrary to Indra Sawhney Case. 2026:JHHC:16578-DB Page | 113 180. The Hon‟ble Apex Court reaffirmed that SCs and STs are inherently backward and do not need to prove their backwardness for the purpose of reservations. However, the creamy layer principle was deemed essential to ensure that only the genuinely disadvantaged individuals in these communities benefit from reservations in promotion. 181. In sum and substance, in the case of Jarnail Singh and Ors. vs Lachhmi Narain Gupta and Ors., the Hon‟ble Apex Court reaffirmed the principles established in Indra Sawhney and M. Nagaraj, particularly with regard to the creamy layer principle and reservations in promotions. 182. Thus, from the aforesaid it is evident that the Hon‟ble Apex Court in State of Tripura v. Jayanta Chakraborty, (2018) 1 SCC 146 referred M. Nagaraj v. Union of India, (Supra)) to a larger Bench for reconsideration. Further, in State of Maharashtra v. Vijay Ghogre, (2018) 17 SCC the Hon‟ble Apex Court thought it appropriate that the request for reconsideration of the judgment in M. Nagaraj (supra) should be heard by a Constitution Bench. The request made for referring M. Nagaraj to a seven-Judge Bench was not entertained by the Hon‟ble Apex Court in Jarnail Singh v. Lachhmi Narain 2026:JHHC:16578-DB Page | 114 Gupta (supra). However, the conclusion arrived at in M. Nagaraj relating to collection of quantifiable data showing backwardness of the SCs and the STs was held to be invalid as the same was contrary to a larger Bench judgment in Indra Sawhney v. Union of India, (supra), wherein it had been held by the Court that conditions of social and educational backwardness are presumed to be satisfied in case of SCs and STs as they are identified and grouped as such because of prior discrimination and its continuing ill effects. The Hon‟ble Apex Court rejected the remaining grounds of challenge to the decision in M. Nagaraj and reiterated that the State has to collect quantifiable data regarding inadequate representation of SCs and STs in the services of the State, if reservation is sought to be provided in promotions. 183. Further in the Jarnail Singh (II) v. Lachhmi Narain Gupta, (2022) 10 SCC 595 the Hon‟ble Apex Court has taken into consideration the following issues: “11. After considering the issues identified by the learned Attorney General and other learned counsel and hearing them, the following six points are formulated for determination: 11.1. (1) What is the yardstick by which, according to M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , one would arrive at 2026:JHHC:16578-DB Page | 115 quantifiable data showing inadequacy of representation of SCs and STs in public employment? 11.2. (2) What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected? 11.3. (3) Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Article 16(4-A)? 11.4. (4) Should there be a time period for reviewing inadequacy of representation? 11.5. (5) Whether the judgment in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] can be said to operate prospectively? 11.6. (6) Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by this Court in B.K. Pavitra v. Union of India [B.K. Pavitra v. Union of India, (2019) 16 SCC 129] [“B.K. Pavitra (2)”]?” 184. Accordingly, the Hon‟ble Apex Court while answering the aforesaid issues has observed which reads as under: 40. In M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , this Court was of the considered view that the exercise of collecting quantifiable data depends on numerous factors, with conflicting claims to be optimised by the administration in the context of local prevailing conditions in public employment. As equity, justice and efficiency are variable factors and are context-specific, how these factors should be identified and counter-balanced will depend on the facts and circumstances of each case. The attempt of the learned Attorney General for India to impress upon this Court that the proportion of SCs and STs in the population 2026:JHHC:16578-DB Page | 116 of India should be taken as the test for determining whether they are adequately represented in promotional posts, did not yield results. 41. This Court in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] found no fault with M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] regarding the test for determining the adequacy of representation in promotional posts in the State. While emphasising the contrast in the language used between Article 330 and Articles 16(4-A) and 16(4-B) of the Constitution, this Court declined the invitation of the learned Attorney General for India to hold that the proportion of SCs and STs to the population of India should be the test for determining inadequacy of representation in promotional posts. Therefore, we are not persuaded to express any opinion on this aspect. It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors. 45. This Court upheld the validity of Article 16(4-A) in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] on 19-10-2006 and observed that reservation in promotions in public services can be made, subject to collection of quantifiable data by the State showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335 of the Constitution. Reservation in promotions provided by various State Governments and the Central Government have been challenged in the High Courts on the ground of non- compliance with the requirement of collection of quantifiable data showing backwardness of the class and inadequacy of representation. It is relevant to mention at this stage that collection of quantifiable data regarding backwardness of SCs and STs is no more required in view of the judgment of this Court in Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : 2026:JHHC:16578-DB Page | 117 (2019) 1 SCC (L&S) 86] . In respect of the data relating to inadequacy of representation of SCs and STs, the High Courts have adjudicated writ petitions which are the subject-matter of special leave petitions pending in this Court. 185. Thus, it is evident from the discussions made hereinabove in the preceding paragraphs that the Hon‟ble Supreme Court in the case of Indra Sawhney & Ors. Vs. Union of India & Ors, (supra) held that Article 16(4) of the Constitution does not permit reservations in the matter of promotion. Thereafter, the Constitution (Seventy-Seventh) Act, 1995 came into force on 17.6.1995. Later on, the Hon‟ble Supreme Court in the cases of Union of India & Ors. Vs. Virpal Singh Chauhan & Ors., Ajit Singh Januja & Ors. (Ajit Singh-I) Vs. State of Punjab & Ors., and Ajit Singh (II) & Ors. Vs. State of Punjab & ors., introduced the catch-up rule and held that if the senior general candidate is promoted then he will regain his seniority on promotion post above junior reserved promotes. It was also held that consequential seniority on promotion post is not covered by Article 16(4A). 186. The constitutionality of 77th, 81st, 82nd and 85th Amendments were challenged in M. Nagraj case where the petitioners contended that consequential seniority cannot be given to the members of SCs and STs once the accelerated promotion is granted. Even 2026:JHHC:16578-DB Page | 118 after upholding the constitutional validity of all the amendments Hon‟ble Court was of the view that the state is not bound to make reservation for SCs/STs in matter of promotion however if they wish to exercise their discretion and make such provision, the state has to collect quantifiable date showing backwardness of the class and inadequacy of the representation of that class in public employment in addition to compliance with article 335. 187. It has further been observed in the M. Nagraj case that the consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. 188. Later on the Constitutional Bench of the Hon‟ble Apex Court in Jarnail Singh v Lacchmi Narain Gupta clarified certain positions of the above mentioned cases, however the Jarnail Singh case does not deal with “catch-up” principle directly but has some observations regarding its application, here it was 2026:JHHC:16578-DB Page | 119 expressly rejected that “a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness”. Further the decision in Jarnail Singh Case rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. 189. In the backdrop of the aforesaid settled position of law, this Court is now adverting to the fact of the instant case the Petitioner has also relied upon Resolution No.1862 dated 31.03.2003 promulgated by the State Government pursuant to amendment made in Article 16 (4-A) of the Constitution of India and submission has been made that it categorically provides that Government Servants belonging to Schedule Castes and Schedule Tribes promoted on basis of Roaster Points will retain their Seniority which shall remain unaffected by promotion later to Government Servants of General and Other Categories, who shall rank junior to them. 190. In this regard, it would be apt to mention that validity of resolution dated 31.03.2003 was challenged by filing number of writ petitions which were clubbed together for hearing being W.P. (S) No. 5882 of 2003 and batch matters [Raghubansh Prasad Singh vs. State of Jharkhand & Ors.]. 2026:JHHC:16578-DB Page | 120 191. For ready reference, the relevant paragraph of the judgment rendered in the case of Raghubansh Prasad Singh vs. State of Jharkhand & Ors. (supra) is quoted as under: “18.The Resolution dated 31st March 2003 refers to the judgment in “Union of India v. Virpal Singh Chauhan” (1995) 6 SCC 684 and the amendment in Article 16(4-A) of the Constitution by the Constitution Eighty-Fifth Amendment Act, 2001 and provides that (i) the resultant seniority of the government servant belonging to the Scheduled Castes and Scheduled Tribes upon their promotion following the rules of reservation/roster shall remain intact and (ii) this decision shall be effective from 17th June 1995 that is the date of the enforcement of Eighty-Fifth Amendment. This Resolution further provides that the government servants belonging to SC/ST category shall be promoted from the date of promotion of their immediate junior belonging to General category/Other Backward Classes and for the intervening period they shall be given notional promotion. Mr. Manoj Tandon and Mr. Rahul Kumar, the learned counsels appearing for the petitioners have indicated that even the stipulation under clause (c) of paragraph no. 3(iii) in the Resolution dated 31st March 2003 to the effect that any procedure approved by the competent authority has not been laid down and blanket reservation in promotions and accelerated promotions with preservation of consequential seniority to the Scheduled Castes and Scheduled Tribes have been provided in the State of Jharkhand. 19. The State of Jharkhand seeks to provide reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment under Article 16(4-A) of the Constitution. The State of Jharkhand has however not made any legislation for providing reservation in the promotions to the Scheduled Castes and Scheduled Tribes in public employment. In the counter affidavit, the State of Jharkhand did not address any of the issues raised by the petitioners. 2026:JHHC:16578-DB Page | 121 The stand of the State of Jharkhand as projected in the counter affidavit is confined to mere reiteration of the provisions under Article 16(4-A) of the Constitution. This is not even pleaded in the counter-affidavit that promotions to the Scheduled Castes and Scheduled Tribes are provided in the government service after conducting a survey as regards their inadequate representation in the cadre. Naturally, there is no reference of any procedure being followed by the State of Jharkhand for providing reservation in promotions to the Scheduled Castes and Scheduled Tribes in government service. The Resolution dated 31st March 2003 has been issued by the order of the Governor of Jharkhand which is thus an executive instruction. However, while providing reservation in promotions to the Scheduled Castes and Scheduled Tribes the State of Jharkhand did not provide any guideline in the Resolution dated 31st March 2003. There is no whisper about the mode, manner and method of providing promotion to the Scheduled Castes and Scheduled Tribes. This is not even pleaded that the inadequacy of representation in any cadre/service has been taken into account for providing reservation in promotions and the consequential benefit of promotion to the Scheduled Castes and Scheduled Tribes. As the pleadings and the data furnished by the petitioners in W.P(S) No.5882 of 2003 reveal, wholesale reservation in promotions to the Scheduled Castes and Scheduled Tribes are being given and their consequential promotions have been protected. The Resolution dated 31st March 2003 apparently does not provide any guidance or lay down any procedure for (i) assessing inadequate representation of the Scheduled Castes and Scheduled Tribes in any cadre/service and (ii) the extent of reservation in promotions that is required to be extended to the Scheduled Castes and Scheduled Tribes. 20. The Resolution dated 31st March 2003 simply reproduces the provisions under Article 16(4-A) of the Constitution with a little elaboration. The validity of this Resolution has to be seen with reference to the object and purpose behind Article 16(4-A) of the Constitution. This is 2026:JHHC:16578-DB Page | 122 well-settled that even a subordinate legislation can be challenged on the grounds of (i) violation of the fundamental rights (ii) violation of any provision of the Constitution of India (iii) failure to confirm to the Parent Act (iv) exceeding the limits of authority under the Parent Act (v) manifest arbitrariness and (vi) unreasonableness. This is also a and analogous cases well-settled principle that the conferment of authority by the Parent Act for subordinate legislation does not enable the authority to make a provision which travels beyond the scope of the Enabling Act or which is inconsistent therewith or repugnant thereto. 21. Tested on the aforementioned principles, this Court comes to a conclusion that the Resolution dated 31st March 2003 does confer a blanket power to provide reservation in promotions with protection to the consequential seniority to the Scheduled Castes and Scheduled Tribes in government employment. However, having regard to a possible cascading effect in any cadre in the government service about two decades after the first writ petition was filed questioning the validity of the Resolution dated 31st March 2003, this Court is not inclined to interfere with the benefits already conferred pursuant to the seniority/civil list prepared by different departments of the Government. 22. Henceforth, the Resolution dated 31st March 2003 shall not be given effect to till rules/guidelines/executive instructions are issued based on the requirements as mandated by the Hon’ble Supreme Court in “M. Nagaraj”, “Jarnail Singh-I” “Jarnail Singh-II” and other decisions of the Hon’ble Supreme Court. 23. These writ petitions succeed to the aforesaid extent and are accordingly disposed of. 192. Therefore, as per the law laid down by Division Bench in the case of Raghubansh Prasad Singh vs. State of Jharkhand & Ors. (supra), whereby it has been held that „henceforth the Resolution dated 31st 2026:JHHC:16578-DB Page | 123 March 2003 shall not be given effect to till rules/guidelines/executive instructions are issued based on the requirements as mandated by the Hon‟ble Supreme Court in “M. Nagaraj”, “Jarnail Singh-I” “Jarnail Singh-II” and other decisions of the Hon‟ble Supreme Court‟, no relief can be granted to the petitioner with the aid of Resolution dated 31.03.2003, for the reason that no subsequent Resolution has been brought before this Court in the light of direction so passed by the Co-ordinate Bench of this Court as under paragraph 21. 193. However, the Co-ordinate Bench did not interfere with the benefits already conferred pursuant to the seniority/civil list prepared by different departments of the Government considering the fact that writ petition filed questioning the validity of the Resolution dated 31st March 2003, since two decades had passed till date. Therefore, such concession cannot be granted to the petitioners. 194. From the case laws, as discussed above, this Court comes to the conclusion that no relief can be granted to the petitioners as per the law laid down in those judgments as also the resolution dated 31.03.2003 is also not to the aid of the petitioners, since the 2026:JHHC:16578-DB Page | 124 petitioners have not been granted promotion in terms of resolution dated 31.03.2003 said to be accrual of right. 195. Besides that, the other ground has been taken that Respondent-State, purportedly in interest of work, as a onetime measure, amended part of schedule II r/w Rule- 7 (iii) of the 2016 Rules and took a decision as notified by the Road Construction Department vide Resolution No.3241(S) dated 01.07.2019 and in terms of the said Decision/Resolution while as a Rule providing that consideration of promotion of the eligible candidates who have completed the 'Kalawadhi' have to be considered and promotions effected. 196. Pursuant to the above Resolution dated 01.07.2019 vide Notification bearing Memo No. 3950(S) dated 06.08.2019, Executive Engineers [some private respondents] were promoted to the post of Superintending Engineer. 197. Learned senior counsel for the petitioners has also taken the ground that petitioners were since promoted to the post of Executive Engineer w.e.f. 01.12.2014, as such they are eligible to be considered for promotion on the post of Superintending Engineer after completing the required Kalawadhi of 5 years under the then existing Rules, 2016. 2026:JHHC:16578-DB Page | 125 198. So far as the issue of 'Kalawadhi' is concerned it would be apt to refer herein the content of Resolution bearing No. 3286 dated 04.04.2014 which pertains to the 'Kalawadhi': “2(i) , 50 “ (ii) , 50 199. Thus, it is evident that Clause 2(i) provided that where posts are vacant and on account of qualifying service, grant of promotion is not possible, qualifying Service could be met by adding the completed service of the post along-with the completed service in a post below than 50 percent relaxation in requirement of kalawadhi shall be granted for grant of promotion to the higher post. 2026:JHHC:16578-DB Page | 126 200. It is relevant to state the Resolution dated 24.10.2014 which added a new Clause 2(iii) to the Resolution bearing No. 3286 dated 04.04.2014 which is as follows: “2(iii) “ 20 01 “” 201. From perusal of the aforesaid provision, it is evident that further as a onetime measure, relying on Resolution No. 10483 dated 24.10.2014 provided that after amendment of the requirement of qualifying service on non-functional second grade, in grade specified if still the posts remain vacant and remaining unfilled then those who had put in 20 years of completed service and one year on the post held (in grade of Executive Engineer) would be not excluded from being considered for promotion (on remaining vacant /unfilled) post on account of requirement of qualifying service and in such circumstances those officers could be granted promotion on the higher post. 202. Further it is evident that if one or the other public servant holding the post in the feeder cadre is not being fulfilled then the government has the power to relax the 2026:JHHC:16578-DB Page | 127 rule. The benefit of relaxation has been given i.e., on the basis of the notification dated 14.10.2014 and 24.10.2014. The relaxation has been given in the period of Kalavadhi. 203. It requires to refer herein that the required time duration for promotion to different levels are as follows: SL. NO. Name of duty post duration 1. Engineer in Chief- Cum-Additional commissioner-cum special secretary Must have put in the regular service as Chief Engineer in the Pay Band IV Rs. 37400-67000+ G.P. Rs. 10000 for minimum period of two years. 2. Chief Engineer (Civil) Must have put in the regular service as Superintending Engineer in the Pay Band IV Rs. 37400-67000+G.P. Rs. 8700 for minimum period of two years. 3. Superintending Engineer (Civil) Must have put in the regular service as Executive Engineer in the Pay Band III Rs. 15600- 39100+G.P. Rs. 7600 for minimum period of five years. 4. Executive Engineer (Civil) (Non functional second grade) Must have put in the regular service as Executive Engineer in the Pay Band III Rs. 15600- 39100+G.P. Rs. 6600 for minimum period of five years. 5. Executive Engineer(Civil) Assistant Engineer in Pay Band-II Rs. 9300-34800+Grade Pay of Rs. 5400/- with 5(Five) years regular service. 2026:JHHC:16578-DB Page | 128 204. Thus, for promotion to the Superintending Engineer (Civil) the requisite criteria are the regular service as Executive Engineer in the Pay Band III Rs. 15600-39100+G.P. Rs. 7600 for minimum period of five years. 205. Further it requires to refer herein that the private respondents were given the Grade Pay of Rs. 6600 in the year 2007 itself and thereafter the Grade Pay of Rs. 7600 was given in the year 2015, meaning thereby that the private respondents have completed the requisite kalawadhi whereas the petitioners were given the Grade Pay of Rs. 5400 in the year 2007 i.e. at the time of their appointment and thereafter the Grade Pay of Rs. 6600 in the year 2014 was given to them. 206. It is evident from the record that Petitioners were appointed as Assistant Engineers vide Notification No. 4961 Dated 14.08.2007. The Petitioners were promoted to the post of Executive Engineer on 01.12.2014 under the then prevailing 1939 Rules, whereas the private respondent 6 to 16 were promoted to the post of Executive Engineer after the writ Petitioners were promoted but the private respondents were senior to the Petitioners as per the “catch up Rule” and accordingly they have been promoted to Superintending Engineer as per their seniority in the basic post i.e. on the post of 2026:JHHC:16578-DB Page | 129 Assistant Engineer after fulfilling the requisite qualification. 207. While examining the issue of the Kalawadi, so far as the petitioners are concerned, the same according to our considered view is not worth to be considered at length at this moment, since the writ petitioners are claiming the promotion mainly on the basis of seniority on the ground that they have got promotion to the post of Executive Engineer in the year 2014 much before to the private respondent. 208. Further, it would be apt to mention herein that operation of Rules, 2016 was stayed by order dated 17.08.2017 passed in W.P.(S) No. 3027 of 2016, as quoted and referred above, and even otherwise also since the respondents have regained their seniority as per the „catch up‟ rules, as discussed above, therefore the ground which has been taken by learned senior counsel for the petitioners has no leg to stand. 209. Further, Submission has been made that the respondent-State in the garb of order dated 17.08.2017 passed in W.P. (S) No. 3027 of 2016 and analogous cases, notified resolution dated 07.03.2022 by which the entire provisions of Rules, 2016 has been stayed and made 1939 rule effect to facilitate/enable the chain of promotions. 2026:JHHC:16578-DB Page | 130 210. Submission has been made that the resolution dated 07.03.2022 is issued in the name of Governor, in exercise of State's executive power and by an Executive order staying the then existing rules namely 2016 Rules reviving repealed 1939 Rules and simultaneously deciding that promotion shall be granted to all posts from Junior Engineer to Engineer-in-Chief as per repealed 1939 Rules, apart from being beyond its power and authority also amounts to overreaching and defiance of the interim order of the Division Bench of this Court dated 17.08.2017 which was operative till 21.01.2026. The abovesaid contention is fully supported by settled law firstly, that statutory rules framed under Article 309 of Constitution of India cannot be overridden/superseded, by executive instruction or practices. Secondly, by executive orders, only provisions can be made with respect to matters upon which the rules are silent. The 2016 Rules contained the elaborate provisions regarding appointment by promotion to the post of Superintending Engineer and above. 211. It has been submitted that even where amendments are proposed to be made in the existing rules, does not mean that the rules are obliterated till the rules are actually promulgated and such existing rules continue to apply. The provision of Rules shall 2026:JHHC:16578-DB Page | 131 always have primacy and prevail over and cannot be supplanted, overridden, superseded by executive instructions. 212. It has been submitted that the Division Bench of this court in L.P.A No. 198 of 2025 vide its order and judgment dated 28.04.2025, has considered the propriety and the permissibility of Resolution dated 07.03.2022. After noticing the contention of the Parties, the Division Bench of this Court from Para 12 to 18 thereof considered the interim orders dated 26.09.2016 and 17.08.2017, at Para 24 thereof framed the issues as to whether proviso to Article 309 can be superseded by any executive instructions and at Para 25 and 26 thereof, quoting two decisions of the Hon'ble Supreme Court reported in (1998) 8 SCC 469 in effect answered it in the negative. The Division Bench further vide Para 27, 28 considered whether the decision contained in resolution dated 07.03.2022 for granting promotion from post of Assistant Engineer to Engineer -In- Chief on the basis of 1939 Class I Rules and not 2016 Rules was proper and at Paras 31-33, the Division Bench held that the State ought to have sought for a clarification from this Court. Taking into account the interim orders dated 26.09.2016 and 17.08.2017 passed in W.P. (S) No. 3027 of 2016, the interim orders passed in W.P. (S) 2026:JHHC:16578-DB Page | 132 3495/2024 and W. P. (S) 3508/2024 whereby all promotions were stayed being contrary to the aforesaid interim orders passed by the Division Bench and modified the order of the Single Judge to the extent that promotion can be granted from the post of Assistant Engineer to Executive Engineer on the basis of 1939 Rules and further held that with regard to other promotions, it is open to the State to grant promotion on the basis of applicable rules. 213. Therefore, submission has been made that Resolution dated 07.03.2022, staying the operation of entire 2016 Rules and making 1939 Class- I and II Rules effective for grant of promotion at all levels right up to Engineer-in-Chief is in teeth of aforesaid direction of this Court which confined grant of promotion under 1939 Rules only so far as promotion from the post of Assistant Engineer to Executive Engineer are concerned. 214. It is evident that resolution dated 07.03.2022 has been issued on the basis of order passed by this Court dated 17.08.2017 in W.P. (S) No.3027 of 2016 and other analogous case. 215. In this regard it would be appropriate to mention herein that the validity of the Rules, 2016 was challenged by filing writ petitions, one of which is 2026:JHHC:16578-DB Page | 133 W.P.(S) No. 3027 of 2016, in which, the Co-ordinate Division Bench on 26.09.2016 passed following order: “Having heard senior counsel for the petitioners and looking to the facts and circumstances of the case, we, hereby, direct the respondents that the promotion to the post of Executive Engineer from the post of Assistant Engineer shall not be filled up, till next date of hearing. 2. This matter is adjourned to be enlisted on 24th October, 2016 216. However, for modification of said order dated 26.09.2016, an Interlocutory Application being I.A. No.6527 of 2017 was filed, in which, order has been passed vide order dated 17.08.2017 directing the State of Jharkhand not to promote any employee to the post of Executive Engineer from the post of Assistant Engineer as per the Jharkhand Engineering Services Recruitment Rules, 2016. It has been observed that modified stay will be continued to be operative during pendency and final hearing of the writ petition in W.P.(S) No.3027 of 2016 as well as W.P.(S) No.2984 of 2016 and W.P.(S) No. 3031 of 2016. 217. Another Interlocutory Application being I.A. No.5096 of 2017 [in W.P.(S) No. 3027 of 2016] was also filed seeking modification of order dated 24.09.2016, wherein order has been passed to the effect that the promotion from the post of Assistant Engineer (Diploma Holder) to the post of Executive Engineer as per 2026:JHHC:16578-DB Page | 134 Jharkhand Engineering Services Recruitment Rules, 2016, shall remain stayed during pendency and final hearing of W.P.(S) No.3027 of 2016 and other writ petitions which are to be heard together along with this writ petition and they are W.P.(S) No.2984 of 2016 and W.P.(S) No.3031 of 2016. 218. 218. For ready reference, order 17.08.2017, upon which much emphasis has been laid down, is quoted as under: “1) W.P.(S) No.3027 of 2016 is to be heard along with W.P.(S) No.2984 of 2016 as well as with W.P.(S) No.3031 of 2016, because, the issues involved in this writ petition i.e. W.P.(S) No.3027 of 2016 and in other writ petitions are similar. I.A. No.6600 of 2017 [in W.P.(S) No. 3031 of 2016] 2) This Interlocutory Application has been preferred for early final hearing of the writ petition. 3) Having heard learned counsels for both sides and the learned counsels in other Interlocutory Applications which are filed for joining the party-respondents and looking to the urgency into the matter, we, hereby, direct the Registrar General of this Court to enlist W.P.(S) No.3031 of 2016 along with W.P.(S) No. 3027 of 2016 and W.P.(S) No. 2984 of 2016 under the heading For Hearing on 7th December, 2017. 4) This Interlocutory Application is allowed and disposed of. I.A. No.6527 of 2017 [in W.P.(S) No. 3027 of 2016] 5) This Interlocutory Application has been preferred for joining the party-respondent in W.P.(S) No. 3027 of 2016. 6) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that this applicant is also Junior Engineer and he is also in search of promotion which is in question in the writ petition. 7) Looking to these aspects of the matter, this Interlocutory Application is allowed. The applicant is permitted to be joined as party respondent No.7. 2026:JHHC:16578-DB Page | 135 8) Necessary amendment shall be carried out by red ink in the writ petition being W.P.(S) No. 3027 of 2016. 9) This applicant is joined as party respondent No.7 at his own cost. 10) It is also prayed in the Interlocutory Application that the order passed by this Court dated 26th September, 2016, may kindly be modified to the extent that as per earlier prevailing Rules, the promotions may be given in the cadre of Engineers. 11) It is submitted by the counsel for the applicant that in the writ petition, newly enacted Rules, namely, Jharkhand Engineering Services Recruitment Rules, 2016 are under challenge, which is at Annexure 1, to the memo of W.P.(S) No.3027 of 2016 and this Court has granted stay to the effect that promotion to the post of Executive Engineers from the post of Assistant Engineers shall not be filled up. This order may slightly be modified to the extent that promotion to the post of Executive Engineers from the post of Assistant Engineers shall not be filled up as per the new Rules i.e. Jharkhand Engineering Services Recruitment Rules, 2016, meaning thereby that as per the earlier Rules, Regulations and Policies, the promotion may be continued. These promotions will be subject to the result of these Writ Petitions. 1 12) Thus, looking to the challenge in the writ petitions including W.P.(S) No. 3027 of 2016 and other writ petitions, which are on Board today, we, hereby, direct the State of Jharkhand not to promote any employee to the post of Executive Engineer from the post of Assistant Engineer as per the Jharkhand Engineering Services Recruitment Rules, 2016. This modified stay will be continued to be operative during pendency and final hearing of the writ petition in W.P.(S) No.3027 of 2016 as well as W.P.(S) No.2984 of 2016 and W.P.(S) No. 3031 of 2016. 13) This Interlocutory Application is allowed and disposed of. I.A. No.429 of 2017 [in W.P.(S) No.3027 of 2016] 2026:JHHC:16578-DB Page | 136 14) This Interlocutory Application has been preferred for joining party respondents in W.P.(S) No.3027 of 2016. They are also Assistant Engineers (Diploma Holders) and they are also seeking promotion to the post of Executive Engineers. 15) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that these applicants are vitally interested in the outcome of the decision in the aforesaid writ petitions. Hence, they are also joined as party respondents Nos.8 and 9 in W.P.(S) No. 3027 of 2016. 16) These applicants are permitted to be joined as party respondents No.8 and 9 at their own costs. 17) This Interlocutory Application is allowed and disposed of. I.A. No.5096 of 2017 [in W.P.(S) No. 3027 of 2016] 18) This Interlocutory Application has been preferred for vacating the stay granted by this Court vide order dated 26th September, 2016. 19) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that the Rules, viz., Jharkhand Engineering Services Recruitment Rules, 2016, is under challenge. As per these Rules, Junior Engineers (Diploma Holders) were to be promoted on the post of Assistant Engineers with a reservation of 40%. Now, after getting this promotion in Assistant Engineer with reservation, there was originally, no further reservation to the post of Executive Engineer. Now, reservation has been introduced even in the promotional cadre in the Executive Engineers i.e. those who are Assistant Engineers (Diploma Holders) shall have special reservation/quota for the promotion on the post of Executive Engineers. This has been introduced by way of enactment of new Rules namely, Jharkhand Engineering Services Recruitment Rules, 2016, which is under challenge. This reservation in promotion has been stayed by this Court vide order dated 26th September, 2016. We have also modified this stay in I.A. No.6527 of 2017 to the effect that the stay granted by this Court is only with respect to promotion as per the Jharkhand Engineering Services Recruitment Rules, 2026:JHHC:16578-DB Page | 137 2016. Thus, promotion from the post of Assistant Engineer (Diploma Holder) to the post of Executive Engineer as per Jharkhand Engineering Services Recruitment Rules, 2016, shall remain stayed during pendency and final hearing of W.P.(S) No.3027 of 2016 and other writ petitions which are to be heard together along with this writ petition and they are W.P.(S) No.2984 of 2016 and W.P.(S) No.3031 of 2016. 20) Counsel for the applicant submitted that grant of stay during pendency and final hearing of the writ petitions will tantamount to allowing the writ petitions. We are not accepting this contention mainly for the reason that once the stay is vacated and if the Assistant Engineers (Diploma Holders) are permitted to be promoted to in reservation category/quota on the post of Executive Engineers, it will affect the career of the senior Engineers (Degree Holders) who are Assistant Engineers. Moreover, final seniority list has also been published which is annexed in the writ petition. Even otherwise also, we have already fixed the date of final hearing of the aforesaid writ petitions. In this set of circumstance, the promotion can always be given by the Government from the post of Assistant Engineers to the post of Executive Engineers, as per the earlier prevailing Rules, Regulations and Governmental policies, but, not as per the Rules, namely, Jharkhand Engineering Services Recruitment Rules, 2016. The promotions granted, as per earlier Rules, Regulations, Government Policy shall be subject to the result of these Writ Petitions. 21) With these observation, this Interlocutory Application is, hereby, disposed of.” 219. Thus, it is evident from order dated 17.08.2017 passed in W.P. (S) No. 3027 of 2016 that the Co-ordinate Bench while hearing the matter of validity of Rules, 2016 has passed specific order directing the State of Jharkhand not to promote any employee to the post of 2026:JHHC:16578-DB Page | 138 Executive Engineer from the post of Assistant Engineer as per the Jharkhand Engineering Services Recruitment Rules, 2016 modifying its earlier order dated 26.09.2016 whereby direction was given upon the respondents that the promotion to the post of Executive Engineer from the post of Assistant Engineer shall not be filed up, till next date of hearing. 220. This Court has further gone into order dated 28th April, 2025 passed by this Court in L.P.A. No. 198 of 2025 against the interim order dated 02.09.2024 passed in W.P. (S) No. 3495 of 2023, by which the ad interim stay has been passed to the effect that no further promotion shall be given to any of the employees till the next date of hearing. 221. It further requires to refer herein that the writ petition was filed being aggrieved with the decision as contained in resolution date 07.03.2022 as under paragraph 5, the petitioners have come to this Court by filing writ petition being W.P. (S) No. 3495 of 2024 taking the ground that the Rules, 2016 which has been enacted under conferment of power of proviso to Article 309 to the Constitution of India cannot be altered/modified or even superseded by the executive instruction said to be taken in exercise of power 2026:JHHC:16578-DB Page | 139 conferred under Article 166(3) read with Article 162 of the Constitution of India. 222. The Co-ordinate Division Bench taking note of order dated 17.08.2017 passed in W.P. (S) No. 3027 of 2016 and submissions advanced by learned counsel for the parties vis-à-vis Resolution dated 07.03.2022 in particular paragraph 5 thereof, has observed that there is no dispute that proviso to Article 309 cannot be superseded by any executive instruction and at paragraph 32 held that putting restriction not to grant any promotion is being considered to be in the teeth of order passed by the Co-ordinate Bench of this Court in 26.09.2016 and clarificatory order dated 17.08.2017 passed in W.P. (S) No. 3027 of 2016. Accordingly, the order passed by the learned Single Judge was modified to the extent that the promotion from the post of Assistant Engineer up-to Executive Engineer is to be considered on the basis of Rules, 1939. However, so far as promotion to be granted to the post of Superintending Engineer up-to the level of Engineer-in- Chief is concerned, it is upon the State to grant promotion on the applicable rules. 223. For ready reference, paragraph 32 to 34 of L.P.A. No. 198 of 2025 is quoted as under: 2026:JHHC:16578-DB Page | 140 32. This Court, therefore, is of the view that putting restriction not to grant any promotion is being considered to be in the teeth of order passed by the Co-ordinate Bench of this Court in 26.09.2016 and clarificatory order dated 17.08.2017. 33. Accordingly, order dated passed by the learned Single Judge is modified to the extent that the promotion from the post of Assistant Engineer up-to Executive Engineer is to be considered on the basis of Rules, 1939. 34. So far as promotion to be granted to the post of Superintending Engineer up-to the level of Engineer- in-Chief is concerned, it is upon the State to grant promotion on the applicable rules. 224. The respondent-State, on the strength of aforesaid order and resolution, if granted promotion to the private respondents, the same cannot be said to suffer from error. 225. Further submission has been made that vide memo no. 3463 dated 03.06.2022, the Department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand in view of the judgment rendered by the constitution Bench of the Hon‟ble Apex Court in the case of R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 wherein it has been held that such of the reserved candidates belonging to either SC or ST who get promoted on account of their seniority over general and other candidates, such grant of promotion will not be counted as promotion granted on the basis of roaster points but under the general 2026:JHHC:16578-DB Page | 141 category leaving the roaster point reservation unaffected. 226. In this regard, it would be relevant to reiterate that R.K. Sabharwal Vs. State of Punjab Case (supra) established that reservation quotas apply to the total number of posts [cadre strength], not just vacancies. It has been held therein that once the percentage of representation for reserved categories is achieved in a cadre, the roster stops; further appointments must be made against vacant, designated category posts. 227. Admittedly, in the case at hand, the petitioners were promoted to the post of Executive Engineer much earlier than the private respondents and later on when the private respondents were promoted, they regained their seniority, as per the „catch up‟ rules, as discussed above. 228. Therefore, the resolution as contained in memo no. 3463 dated 03.06.2022 is of no aid to the petitioners. 229. Furthermore in this regard, learned counsel for the private respondents, defending the action of the respondents-State, has referred Clause 3 (1) (c) of the circular of 1975, which says that seniority of direct recruits shall be according to their respective position as recorded by the competent authority at the time of their first appointment as Clause 3 (1) (b) which categorically 2026:JHHC:16578-DB Page | 142 stipulates that.. "promoted officers shall keep the position inter-se which they held in the service from which they have been promoted, meaning thereby the seniority position that was held by them at the basic entry level shall be regained upon promotion.” 230. Admittedly, the petitioners as well as the private respondents had initially been appointed to the post of Assistant Engineer, however the petitioners due to accelerated promotion was promoted to the post of Executive Engineer earlier than the private respondents. Even, as per the seniority list of the cadre of Assistant Engineers, the private respondents were much senior to the petitioners. 231. In this regard, reference has been made to the order passed by the Division Bench of the Patna High Court in L.P.A. No. 1946 of 2016 whereby and whereunder the Hon'ble Division Bench has categorically held that in cases where out of turn promotion on account of roster points are given to the employees of reserved category and the other employees belonging to general category who are although senior to such employees on their subsequent promotion to the same cadre, they would regain their seniority. 232. Now, it also requires to mention herein that one seniority list dated 05.05.2015 was published for the 2026:JHHC:16578-DB Page | 143 Cadre of Assistant Engineers, including the petitioners, private respondents and interveners and others, in which admittedly, the petitioners were shown much junior to the private respondents and interveners, which fact has not been denied by the respondents and the interveners. 233. Further, the seniority list dated 02.02.2018 was initially challenged but during pendency of the writ petitions since the same was withdrawn by the respondent-State, as such the petitioners did not press that prayer. Therefore, this Court is not going into the pleadings made to that effect by the parties. 234. Learned senior counsel for the petitioners has submitted that petitioners were since promoted to the post of Executive Engineer sometimes in the year 2014/2015, as such they are eligible to be considered for promotion on the post of Superintending Engineer after completing the required Kalawadhi of 5 years under the then existing Rules, 2016. While on the other hand, the private respondents are not eligible to be considered for promotion to the post of Superintendent Engineer since they have not completed Kalawadhi as provided under the rule as available under Schedule I and II of Rules of notification of 2014 and subsequent Oct, 2014. 2026:JHHC:16578-DB Page | 144 235. Learned senior counsel further referring to Rule 27 of the Rules, 1939 has submitted that seniority in the service is to be determined by the date of officers‟ substantive appointment to the service and in the case at hand the substantive appointment is the appointments/promotion as Executive Engineer, which was earlier followed for reckoning the seniority. 236. Further referring to Rule 8 of the Rules, 2016, which deals with seniority submission has been made that even as per Rules, 2016, the case of the petitioners was required to be considered as per the seniority joining on the post of Executive Engineer. Besides that, in support of their case, learned senior counsel for the referred various circulars. 237. This Court before delving into such argument advanced on behalf of the parties, needs to first refer herein, the relevant rules, as referred, of Rules, 1939 and Rules, 2016, which is quoted as under: 238. Rule 27 of Rules, 1939: “Seniority in the service shall be determined by the date of the officer's substantive appointment to the Service irrespective of the pay drawn by him provided that a member of the service who holds an inferior post substantively. The seniority of officers appointed on the same date shall be determined according to the order of merit in which they were placed at the time of their selection for appointment”. 2026:JHHC:16578-DB Page | 145 239. Rule 8 of the Rules, 2016 dealing with seniority reads as under:-- Rule 8.Seniority (I).Assistant Engineer shall be the entry grade in the Grade-B. The Jharkhand engineering service and the inter-se seniority of the members of the Assistant Engineer (Direct entry) shall be in accordance with the rank in the merit panel as recommenced by the commission & inter-se-seniority of Assistant Engineer (Promoted) in the same transaction shall be as per their seniority in the cadre of junior engineer. (II).There shall be separate seniority list for Assistant Engineers (direct entry) and Assistant Engineers (promoted) as per sub rule (I) of rule-8. (III).The inter-se-seniority list of the members appointed as Executive Engineer amongst Assistant Engineers (Direct entry) & Assistant Engineers (Promoted) shall be determined by the relevant circulars to this effect issued by the State Govt. from time to time. On the basis of this promotion will be provided to the next higher posts as Superintending Engineer, Chief Engineer & Engineer-in-Chief. 240. In this regard, it would be apt to mention herein that Rule, 2016 in particular 8(ii), i.e., the issue of seniority was challenged before this Court by filing W.P.(S) No. 3027 of 2016 wherein an interim order was passed staying the operation of Rules, 2016, basing upon which, the State came up with Resolution dated 07.03.2022. 241. Further, it is relevant to mention herein that being aggrieved with resolution dated 07.03.2022 the writ petition was filed being W.P. (S) No. 3495 of 2024, in which, an interim order was passed against which, LPA No. 198 of 2025 was preferred, wherein, the order 2026:JHHC:16578-DB Page | 146 passed by the learned Single Judge was modified to the extent that the promotion from the post of Assistant Engineer up-to Executive Engineer is to be considered on the basis of Rules, 1939. Further, so far as promotion to be granted to the post of Superintending Engineer up-to the level of Engineer-in-Chief is concerned, it is upon the State to grant promotion on the applicable rules. 242. From the discussions made hereinabove and order passed in L.P.A. No. 198 of 2025, the promotion to the post of Superintending Engineer up-to the level of Engineer-in-Chief is concerned, it was left upon the State to grant promotion on the applicable rules, and if the State as per applicable Rule taking into consideration the principle of „catch up‟ basing upon which the seniority of the private respondents have been restored, if granted promoted to the post of Superintending Engineer and above, that cannot be faulted with. 243. Furthermore, on the second part of Rule 27 of Rules, 1939, which says that .. Seniority in the service shall be determined by the date of the officer's substantive appointment to the Service irrespective of the pay drawn by him provided that a member of the service who holds an inferior post substantively, much emphasis has been laid down by learned senior 2026:JHHC:16578-DB Page | 147 counsel for the petitioners so far as the issue of seniority is concerned. 244. There is no iota of doubt with regard to the applicability of Rule 27 of Rules, 1939. But, here, it is a case where the petitioners who were much junior to the private respondents, as reflected in the seniority list of 2015, which has not been disputed by either of the parties, have got promotion to the post of Executive Engineer prior to private respondents only because of „accelerated promotion‟ but by the virtue of „Catch Up Principle‟, the private respondents regained their seniority, as per the law laid in the case of M. Nagraj (supra), and other consequent judgment referred and discussed hereinabove in the preceding paragraphs. 245. Therefore, on this ground also the petitioners have failed to make out a case so as to get any relief (s), as prayed for. 246. At best case of the petitioners would be to claim their promotion to the post of Superintendent Engineer under their quota subject to availability of vacancies so as to follow the principle laid down in the case of R.K. Sabharwal v. State of Punjab (supra) as also to avoid the 100% reservation in the cadre to act contrary to 50% ceiling as propounded in Indra Sawhney case and based upon that insertion has been made in Article 16 4-A of 2026:JHHC:16578-DB Page | 148 the Constitution, where the ceiling of 50% ceiling limit has been inserted in the Constitution. 247. 247. Accordingly, the issues, as framed by this Court, are answered against the petitioners, as the writ petitioners found to have no right to claim promotion merely on the ground that they have been granted accelerated promotion under 50% saved quota which admittedly was due to availability of posts in their quota prior to consideration of promotion of the private respondents. 248. This Court further finds that the promotion granted in favour of private respondents cannot be said to suffer from an error in absence of any rule formulated by the State Government in terms of judgment passed by Hon‟ble Apex Court in the case of M. Nagraj Vs. Union of India & Ors.(supra) and consequent judgments rendered in the case of Ajit Singh Januja(I) Vs. State of Punjab (supra) and Ajit Singh (II) Vs. State of Punjab (supra). 249. In view of discussions made hereinabove, this Court is of the view that the petitioners have failed to make out a case for declaring the Resolution No.933(S) dated 07.03.2022 (Annexure 16) of the Road Construction Department void. 2026:JHHC:16578-DB Page | 149 250. This Court, in entirety of the facts, discussions and finding arrived at, is of the view that the promotion in question as extended to the private respondents vide Notifications dated 06.08.2019, 21.10.2022 and 11.01.2024 of the Road Construction Department, Jharkhand as also the consequential promotions, requires no interference. 251. All the issues framed by this Court are, thus, decided against the petitioners. 252. Accordingly, both the writ petitions san merit are dismissed. 253. Pending Interlocutory Applications stand disposed of. I Agree (Sujit Narayan Prasad, J.) (Anil Kumar Choudhary, J.) (Anil Kumar Choudhary, J.) 9th June, 2026 A.F.R./ Alankar/- Uploaded on 10th June, 2026