Central Administrative Tribunal - Chandigarh
Rajesh Rai Son Of Shri Raghuvansh Rai vs Union Of India Through The Secretary To ... on 2 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A.NO. 38/CH/2011 Decided on: 02.05.2012 Coram: Honble Mr. Justice S.D. Anand, Member (J) Honble Mrs. Promilla Issar, Member (A)
1. Rajesh Rai son of Shri Raghuvansh Rai, aged 47 years, Superintendent, Central Excise, Office of Commissioner Central Excise, Plot No. 19, C.R. Building, Sector 17, Chandigarh.
2. R.S. Mann son of Shri Bhagwan Singh, aged 48 years, Superintendent, Central Excise Range, Malout.
.Applicants Versus
1. Union of India through the Secretary to Government of India, Ministry of Personnel, Public Grievances and Pension, DOP&T, North Block, New Delhi.
2. The Chairman, Central Board of Excise and Customs, Ministry of Finance, North Block, New Delhi.
3. Chief Commissioner of Customs and Central Excise, Chandigarh-II, Chandigarh.
..Respondents Present: Mr. V.K. Sharma, counsel for the applicant Mr. Deepak Agnihotri, counsel for the respondents Order (Oral) BY HONBLE MR. JUSTICE S.D. ANAND, MEMBER(J)
1. Applicants herein have applied for invalidation of the view obtained by the competent authority to grant reservation in promotion to the candidates from the reserved category. The pure and simple plea raised by the applicant thereby is that unless the relevant exercise in accord with the directions given in the case of M. Nagaraj Vs. Union of India (2006 8 SCC 212) is carried out, there can be no reservation in the matter of promotion of the member of reserved category. Reliance, in support thereof, is placed upon the view obtained in CWP No. 13218/2000 (Annexure A-22).
2. The stance of respondents draws sustenance from the instructions under challenge (Annexure A-1).
3. The O.A. deserves to be allowed. The reasons therefor are as under.
4. There can be no dispute about the contours of the law laid down by the Honble Apex Judicial Dispensation in M. Nagraj case. There was a categorical pronouncement therein that the reservation in promotion will be available to the members of the SC/ST only if the relevant exercise has been undertaken by the competent authority to conclude that there are compelling reasons for reservation concerning backwardness of Scheduled Caste category which would warrant grant of promotion to the Members of the Scheduled Castes/Scheduled Tribes; and (b) the grant of promotion to them would not in any way adversely affect the administrative efficiency and working of the office.
5. The applicants herein made a precise averment in the course of para 4 (12) to the effect that no exercise has been undertaken by the respondent- State as directed by the Honble Supreme Court in the case of M. Nagrajs case. The further averment, in the course of that para, is extracted hereunder:-
Even after the judgment in the case of M. Nagraj, referred to above, and issuance of the above directions, the State has failed to conduct any exercise in terms of the aforesaid judgment. It has not been determined whether the reservation created in terms of the Article 16(4) of the Constitution of India through various instructions issued by the official respondents from time to time, is in consonance with the terms laid down in the case of M. Nagrajs case.
It would be pertinent to note that the view aforementioned has recently been reiterated by the Honble Apex Court in the case of U.P. Power Corp. Ltd. Vs. Rajesh Kumar & Others (C.A. No. 2608 of 2011).
6. The corresponding para of the written statement does not controvert the factual accuracy of that averment. Apart there from, the applicant also resorted to the RTI Act to ascertain the relevant information (Annexure A-20). The response offered by the Govt. of India, Ministry of Personnel, Public Grievances & Pension, DOP&T to the query raised by the applicants herein under RTI is Annexure A-21. The contents thereof are extracted hereunder:-
It is informed that in terms of RTI provisions, the CPIO is required to furnish the information that already exists. To create any information or to define or to interpret or to clarify/confirm any information is beyond the scope of RTI Act, 2005. However, it is informed that no such exercise has been conducted by this Ministry and therefore, no such data as asked for can be provided.
7. A similar query was raised to the competent quarters in the Central Excise Department to which dispensation the applicants belong. The query raised is apparent from Annexure A-10; while the response offered thereto is Annexure A-12. It would be apparent, from a conjunctive perusal thereof, that the queried quarters were not in a position to assert that the relevant exercise had been undertaken.
8. An identical controversy came up before the Punjab & Haryana High Court in CWP No. 13218 of 2009(O & M) titled Lachhmi Narain Gupta and Others Vs. Jarnail Singh and Others. The High Court also recorded a finding favourable to the applicants therein. The relevant instructions dated 10.08.2010 (Annexure P-16 therein) were quashed as those were in direct conflict with the view taken by the Constitution Bench in M. Nagrajs case and Suraj Bhan Meenas case. The learned DB of the High Court categorically pointed out that the seniority and promotion of the Income Tax Inspectors shall be made without any element of reservation in promotion.
9. On point of fact, learned counsel for the respondents very fairly states that the respondents therein have gone in for an SLP but no stay has come to be granted therein qua the view obtained by the High Court in CWP NO. 13218 of 2009.
10. In view, thus, of the above, the O.A. shall stand allowed. We would quash O.M. dated 11.07.2002 (Annexure A-1) and also O.M. dated 10.08.2011 (Annexure A-2) which are found to be in total discordance with the view obtained on the judicial side by the Honble Apex Judicial Dispensation.
11. It is to state the obvious that since the applicant belongs to an All India cadre, it shall be incumbent upon the respondents to implement this judgment qua the applicants herein viz a viz the dispensation in entirety.
12. There shall be no order as to costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D. ANAND) MEMBER (J) (PROMILLA ISSAR) MEMBER (A) PLACE: Chandigarh Dated: 02.05.2012 mw
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