Central Administrative Tribunal - Delhi
Shri A.K. Tiwari vs Union Of India on 22 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.755/2012
OA No.2058/2012
OA No.3603/2012
OA No.2483/2013
Reserved on:07.01.2014
Pronounced on:22.04.2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (J)
OA-755/2012
1. Shri A.K. Tiwari,
S/o Shri S.C. Tiwari,
Sr. Goods Guard
Under Station Superintendent
Northern Railway,
Railway Station,
Ghaziabad (U.P.).
2. Om Prakash
S/o Ram Kishor
Sr. Goods Guard
R/o 115 Govind Pura,
Ghaziabad.
3. Satyavir Singh
S/o Ram Kishen
Sr. G.G.
R/o 1/5 Mandali Extension,
Delhi.
4. Vinod Kumar Pal
S/o Shri Parmanand Pal
R/o B-289,
New Pachawati
Ghaziabad.
5. Dinanath S/o Shri Siya Ram
R/o B-1/13, Welcome Colony,
Seelampur,
Shahadara, Delhi.
6. Ravinder Singh
S/o Darshan Singh
R/o House No.48C/3,
Chhoti More Sarai,
Delhi.
7. D.K. Shukla
S/o Shri S.N. Shukla
R/o House No.641/32,
Shivaji Colony,
Rohtak,
Haryana.
8. Dharam Singh
S/o Sri S. Singh
R/o 128, Kot Gaon,
Ghaziabad.
9. Jai Prakash
S/o Sri Bishamber Singh
R/o B-327/9, Babu Nagar,
Delhi.
10. Ram Sanjivan
S/o Ram Milan
R/o 32, Main Market,
Badarpur,
Delhi.
11. Satish Kumar
S/o Kumar Pal
R/o 9/22, Saurav Vihar,
Badarpur,
Delhi.
13. Nitin Sharma
S/o R.K. Sharma
R/o R-2/217, Sadh Nagar,
Palam Colony,
New Delhi.
14. Naresh Chand Sharma
S/o M.S. Sharma
R/o 86-B, Railway Colony,
Meerut Cantt.,
Meerut. ..Applicants
(By Advocate: Mrs. Meenu Mainee with Shri B.S. Mainee)
Versus
1. Union of India
Through : Secretary,
Railway Board,
Railway Bhawan,
New Delhi.
2. General Manager,
Northern Railway,
Baroda House,
New Delhi.
3. Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi.
4. Nathu Singh, Passenger Guard
S/o Nandu Singh,
Sr.Goods Guard
Northern Railway,
Ghaziabad.
5. Brij Mohan
S/o Soni Ram,
Passenger Guard
Northern Railway,
Delhi.
6. Rajesh Kumar
S/o Ram Samujh
Senior Goods Gaurds
Northern Railway, Tuglakabad.
7. Sri Kailash Chand Meena
Senior Goods Gaurds
Railway Station,
Sukurbasti Delhi. . Respondents
(By Advocate: Shri Saba Rahman)
OA-2058/2012
Shri Mahinder Singh Adhikari,
S/o Shri Jeevan Singh Adhikari
Working as Asstt. Loco Pilot.
Shri Avnish Bithra,
S/o Shri Chhiter Mal Sharma,
Working as Asstt. Loco Pilot.
Shri Sanjay Kumar Saini,
S/o Shri Ram Chander Saini,
Working as Asstt. Loco Pilot.
Shri Sanjay Kumar,
S/o Shri Attar Pal Singh,
Working as Asstt. Loco Pilot.
Under Sr. Section Engineer (Loco)
Northern Railway,
Saharanpur (UP). Applicants
(By Advocate: Shri Manjeet Singh Reen)
Versus
Union of India : Through
1. The Secretary,
Ministry of Railway,
Railway Bhawan,
Railway Board,
New Delhi.
2. The General Manager,
Northern Railway,
Baroda House,
New Delhi.
3. The Divisional Railway Manager,
Northern Railway,
Ambala Cantt.,
Ambala (Haryna).
4. Shri Surjeet Singh,
S/o Shri Attar Singh,
Working as Loco Pilot Goods.
5. Shri Sanjeev Kumar,
S/o Shri Mehar Singh,
Working as Loco Pilot Goods.
6. Shri Jasbir Singh,
S/o Shri Mehar Singh,
Working as Loco Pilot Goods.
7. Shri Pankaj Kumar,
Working as Loco Pilot Goods.
8. Shri Kumresh
S/o Shri Balak Ram Bijalwan
Working as Loco Pilot Goods.
All working under the respondent No.3.
Service effected through Respondent
no.3 in respect of
Private respondents No.4 to 8). .Respondents.
(By Advocate: Shri Shailendra Tiwary)
OA-3603/2012
Shri Madan Lal,
S/o Shri Gurumukh Singh
Loco Pilot (Passenger Train)
Delhi Division,
Northern Railway, New Delhi.
Shri Satya Veer Singh,
S/o Shri Hajari Lal,
Loco Pilot (Passenger Train)
Delhi Division
Northern Railway,
New Delhi. Applicants
(By Advocate: Mrs. Meenu Mainee with Shri B.S. Mainee)
Versus
1. Union of India
Through : Secretary,
Railway Board, Railway Bhawan,
New Delhi.
2. General Manager,
Northern Railway,
Baroda House,
New Delhi.
3. Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi.
4. Shri Ramesh Chandra
S/o Shri Sant Lal,
Loco Pilot (Passenger)
Diesel Shed,
Tughlakabad
New Delhi.
5. Shri Manohar Lal,
S/o Shri Badri Lal,
Loco Pilot (Passenger)
Railway Station,
New Delhi. Respondents
(By Advocate: Shri V.S.R. Krishna for Respondents No.1 to 3 and Sh. Yogesh Sharma for Respondents 4 to 5)
OA-2483/2013
Shri Pal Singh,
S/o Shri Multan Singh
Loco Pilot (Goods)
Railway Station AmbalaDelhi Division
Under SSE (LI) Ambala
Shri Surinder Singh,
S/o Shri Balwant Singh,
Under SSE Saharanpur.
Shri Daleep Kumar
S/o Shri Ganesh Dass Makkar,
Loco Plot (Goods)
Under SSE (L)
Ambala. . Applicants
(By Advocate: Mrs. Meenu Mainee with Shri B.S. Mainee)
Versus
Union of India through
1. Secretary,
Railway Board,
Ministry of Railways,
Railway Bhawan, New Delhi.
2. General Manager,
Northern Railway,
Baroda House, New Delhi.
3. Divisional Railway Manager,
Northern Railway,
Ambala Cantt.
New Delhi.
4. Shri Hari Lal
Loco Pilot (Goods)
Under SSE Ambala.
5. Shri Raj Mal,
S/o Shri Dhani Ram,
Loco Pilot (Goods)
Under SSE Ambala. Respondents
(By Advocate: Shri Shailendra Tiwary)
ORDER
Honble Mr. G. George Paracken, Member (J) The issues involved in all these Original Applications are the same. Therefore, they are disposed of by this common order.
OA No.755/20121.1. The Applicants in this OA are aggrieved by the impugned order by which, out of 42 vacancies for the post of Passenger Guard in the pay scale of Rs.9,300 -34,800 plus Rs.4,200/- grade pay as many as 18 have been sought to be filled by giving reservation to candidates belonging to Scheduled Caste and Scheduled Tribe categories.
1.2. The brief facts of the case are that all the Applicants are working under Respondent No.3. as Goods Guards in pay scale of Rs.9300-34800 with grade pay of Rs.4200/- They are eligible for promotion to the post of Passenger Guard in the same very grade of Rs.9300-34800 with grade pay of Rs.4200/-. Respondent No.3 issued the notice dated 30.12.2011 by which 42 Goods Guards have been promoted as Passenger Guards and 17 candidates have been placed on the provisional panel of Passenger Guards for future vacancies. Out of the panel of 42 Passenger Guards, 17 belong to SC category and 1 to ST category. Out of the 17 candidates placed in the provisional panel, 4 belong to SC category and 4 to ST category. According to the Applicants all those SC and ST category candidates have reached the status of Goods Guards by getting accelerated promotion against reserved quota and, therefore, could not have been further given the benefit of reservation as per law laid down by the Honble Supreme Court in the case of K. Manorama (supra) and also the Full Bench order in All India Equality Forum and Others Vs. U.O.I. & Others (supra).
1.3. The Respondents in their reply have admitted that the promotion order of 42 Sr. Passenger Guards were issued vide Notice dated 30.12.2011 and in the said Notice, the candidates at serial Nos.01 to 29 belong to UR category, candidates at serial Nos.30-41 belong to SC category and the candidates at serial No.42 belongs to ST category and they were promoted in accordance with the Post Based Reservation Roster Register. Similarly, out of 17 posts, 08 candidates were selected against UR posts, 04 candidates against SC posts and 05 candidates against ST posts, against anticipated vacancies to be arisen up to 31.12.2012. They have further submitted that the 42 candidates were promoted as Sr. Passenger Guards as per their seniority as well as short fall in Post Based Reservation Roster Register. Some SC candidates were selected as Sr. Passenger Guard on their own merit against UR posts according to their seniority position. Out of 29 UR candidates who were promoted as Sr. Passenger Guard, there were 05 candidates belonging to SC community and they have come under the zone of consideration against UR posts as per their seniority position. Hence, they cannot be counted against SC posts. They have, therefore, contended that their action to provide the reservation to each category of staff was strictly in accordance with the rules/guidelines which in turn are based on the rulings of the Honble Supreme Court. They have also stated that the issue regarding reservation in promotion was finally settled by introducing of the 77th constitutional amendments by the Government of India and all cases challenging the same were finally disposed of by the Apex Court upholding reservation in promotion to SC/ST.
OA No.2483/20132.1. The applicants in this Original Application are Loco Pilots (Passenger) in the scale of Rs.9300-34800 with grade pay of Rs.4200. They are eligible for promotion to the post of Loco Pilots (Passenger Train) in the same grade pay with RS.500/- as additional allowance. In terms of the letter No.756-E/4/Driver Passenger/Selection Part XVII/P-2/UMB dated 09.07.2013, the Respondent No.3 has conducted a suitability test for filling up 69 posts of Loco Pilot (Passenger) out of which 11 have been reserved for SC and 53 have been unreserved. After scrutiny of service records, Respondent No.3 issued notice dated 09.07.2013 by which Loco Pilot (Goods) were ordered to be promoted as Loco Pilot (Passenger) and out of those 69, 27 belonged to SC/ST category. Out of them, 10 employees were given promotion in accordance with their seniority whereas 16 were picked up from the bottom of the seniority list ignoring equal number of general candidates. Applicants herein are also amongst those who have been side tracked in order to accommodate them. The Applicant has, therefore, filed this OA seeking an order quashing the impugned order dated 09.07.2013 and a further direction to the Respondents to fill up the vacancies of Loco Pilots Passenger strictly in accordance with the seniority subject to the rejection of unfits without allowing any reservation.
3. The Respondents in their reply have admitted that the reservation has been applied in the selection.
4. This OA is identical to OA No. 755/2012 (supra).
OA No.2058/20125. The Applicants in this OA are working as Assistant Loco Pilots in the grade of Rs.5200-20200+2400/1900. In the seniority list of Assistant Loco Pilots issued by the Respondent No.2 on 16.6.2010, their names appears at Sl.No.254,264, 279 & 281. The names of the Private Respondents are at Sl.No.157, 158, 292, 293 & 315. Their next promotional post is that of Loco Pilot Goods in the grade of Rs.9300-34800 + GP 4200.
6. The official respondents have issued the provisional panel dated 28.12.2010 for promotion to the post of Loco Pilot Goods Rs.9300-34800 + 4200 GP (RSRP) in Mech/O&F Department. In the said panel, the Respondent No.2 has included the names of many juniors of the Applicants at Sl.No.134 to 151. Total number of post of Loco Pilot Goods Grade Rs.9300-34800 + GP 4200 to be filled up was 175 (UR-136, SC-19, ST-20). Out of them only 157 candidates were considered eligible as 18 ST category candidates were not available in the feeder category and they were kept vacant. From among them, the provisional panel of 151 successful candidates (UR-133, SC-16, ST-02) in order of seniority was declared promoted vide letter dated 28.12.2010.
7. Challenging the aforesaid action of the Respondents, the Applicants have earlier filed OA No.780/2011 before this Tribunal on 22.02.2011 and this Tribunal, vide order dated 03.02.2012, disposed of the said OA holding that since the question of law has been raised by the Applicants which would have to be settled with reference to the facts of the case, it would be necessary that, at the first instance, respondents should apply their mind to the given facts and apply the law as declared by the Honble Supreme Court in the above said judgments. Thereafter, the Respondents issued the impugned letter dated 25.04.2012 stating that the Private Respondents have been promoted on the basis of reservation as per their position in the Roster. The said letter reads as under:-
NORTHERN RAILWAY No.75S/11/LPG Selec/Promo/Pt.XIII Divisional Office Date: 25.04.2012 Ambala Cantt. Shri Mahinder Singh Adhikari S/o Shri Jeevan Singh Adhikari Working as Asstt. Loco Pilot Under SSE/LOCO/SRE. Sub: OA No.780/2011 titled Mahinder Singh Adhikari Vs. U.O.I. Ref: Honble CAT/NDLS orders dated 03.02.2012.
In compliance to the above referred orders, the case was put-up to Respndent No.2, i.e., Divisional Railway Manager/Ambala who has considered the same and passed the following orders:
1. In compliance to the above referred orders, the undersigned (i.e. Respondent No.2) has examined the representation dated 21.01.2011 and the above subject OA (treating it to be a supplementary representation) vis-`-vis the extant rules and policy guidelines on the subject matter and also with reference to the law as laid down by Honble Supreme court in the judgments cited by Honble CAT in the orders to the subject OA.
Further it may also be added that as per instructions contained in PS No.13640/13712, as a one time relaxation in order to fill up the vacancies arisen up to 31.12.2011, after merger of grades due to implementation of 6th CPC recommendations, a bench mark for promotion to the posts carrying Grade Pay Rs.4200/- on seniority-cum-suitability basis was prescribed 6 marks out of 15 marks in the ACRs of last three years from the feeding category of Sr. Shunters, Shunter, Sr. ALP & ALP Grade Rs.9300-34800+GP 4200, Rs.5200-20200+ GP 2400 & Rs.5200-20200+ GP 1900 respectively duly considering the existing instructions for promotion based on confidential reports and scrutiny of service cards.
Accordingly a selection for promotion to the post of Loco Pilot Goods Grade Rs.9300-34800 + GP 4200 in Mechanical/O&F Department for 175 Posts (UR-136, SC-19, ST-20) was initiated.
2. That 157 eligible candidates were considered for selection for promotion to the post of Loco Pilot Goods grade Rs.9300-34800 + GP 4200 (RSRP) for 175 Posts (UR-136, SC-19, ST-20). 18 eligible candidates of ST category were not available in the feeding category, so these 18 posts were kept vacant due to non-availability of eligible ST candidates in the zone of consideration.
3. That keeping in view the extant rules issued under PS 12672/13735 (copy enclosed), the selection was finalized after making the assessment under the various heads of selection. A panel of 151 successful candidates (UR-133, SC-16, ST-02) in order of seniority was declared vide letter dated 28.12.2010. Out of 157 candidates result of 03 candidates (UR) and 03 candidates of SC category have been kept under sealed cover due to pending major penalty charge sheet till the finalization of charge sheet. 18 eligible candidates of ST category were not available in the feeding category, so these 18 posts were kept vacant due to non-availability of eligible ST candidates in the zone of consideration.
4. As contended in the OA filed before Honble CAT, with reference to the earlier selection for the post of Loco Pilot/Goods finalized vide result dated 11.12.2009, as the promotion to the posts of Loco Pilot Goods Grade Rs.9300-34800 + GP 4200 was to be on the basis of a benchmark (already referred to in para 1), treating the posts to be Non-Selection posts, the promotion was finalized in terms of PS No.13004/2005, which inter alia lays down that SC/ST candidates promoted on their merit will not be adjusted against unreserved points to the promotion by Non-Selection method. Accordingly, against a vacancy position of 216 (UR-159, SC-23, ST-34), a panel of 201 (UR-159, SC-23 ST-19) candidates was finalized vide letter dated 11.12.2009.
Subsequently, Railway Board vide its policy circulated under PS No.13735/2010 has clarified that all Selection /Non-Selection posts have to be filled up by adjusting the SC/ST candidates against unreserved points if they come as per their own merits and seniority and not due to reservation or relaxation of qualification.
5. As per instructions contained in PS No.12672/13735, in panel dated 28.12.2010, the first 136 candidates coming in the zone of consideration as per general seniority were selected on their own merit and adjusted against the general posts irrespective of category SC/ST which they belong and has not been adjusted against reserved posts/vacancies.
6. As per your seniority position notified vide this office letter No.847E/33/Scn./ALP/Pt.5F/P2A/UMB dated 06.06.2010, you are junior to general category candidates who have been empanelled in this selection against the post of general category and as per instruction circulated vide PS No.11450, general candidates cannot be placed on the panel against reserved vacancy of SC/ST candidates. Further the private respondent No.3, 4 & 5 viz. Shri Jasbir Singh, Shri Pankaj Kumar are against SC points and Shri Kumresh against ST points.
Insofar the contention with regard to the earlier panel dated 11.12.2009 is concerned, the necessary action in terms of PS No.12672/13735 towards interpolation of SC/ST candidates coming against general points has been undertaken and the claim still is not tenable.
In view of the above discussion made above, the Applicants claim for interpolation in the panel dated 28.12.2010 is not tenable and accordingly rejected.
Applicant may be informed accordingly.
Please acknowledge receipt.
Sd/-
For Divisional Railway Manager N. Rly. Ambala Cantt..
8. The Respondents in their reply have also admitted that 157 eligible candidates were considered for selection for promotion to the post of Loco Pilot (UR-136, SC-19, ST-20) and out of them, 18 eligible candidates of ST category were not available in the feeder category. Therefore, those 18 posts were kept vacant. Thereafter, a panel of 151 successful candidates (UR-133, SC-16, ST-02) in order of seniority was declared vide letter dated 28.12.2010.
OA No.3603/20129. In this OA, the Applicants have challenged the impugned order no. 758-E/613/VP-7 dated 16/10/2012 passed by DPO, New Delhi by which out of the 53 vacancies for the post of Loco Pilot (Mail Train) in pay scale of Rs.9,300-34,800 with grade pay Rs.4,200/- as many as 18 have been sought to be filed up by giving the reservation to candidates belonging to Schedule Caste and Schedule Tribe categories.
10. The brief facts in this case are that the Applicants are working as Loco Pilot (Passenger Train) w.e.f. 16.06.2006 in the pay scale of Rs.9300-34800 with grade pay of Rs.4200/-. They are eligible for promotion to the post of Loco Pilot (Mail Train) in the same grade. In terms of letter No.758-E/613/VP-7 dated 16.10.2012, the Respondents have conducted a suitability test for filling up 53 vacancies of Loco Pilot (Mail Train) out of which 39 are unreserved, 10 are reserved for SC and 4 are reserved for ST. After scrutiny of service records, the respondent No.3 issued the notice on 16.10.2012 by which 34 Loco Pilot (Passenger Train) have been promoted as Loco Pilot (Mail Train) against unreserved post in the order of seniority while as many as 16 SC/ST candidates have been promoted against SC/ST reserved vacancies ignoring the seniority of the Applicants. Two SC employees have also been promoted against unreserved post by virtue of seniority. In the seniority list, the names of the Applicants appear at Sl.No.131 and 136 while the candidates at Sl.No.36 to 50 are all junior to them. Their names appear at Sl.No.139, 142, 143, 148, 167, 170, 173, 174, 184, 186, 198, 240 and 241.
11. They have, therefore, filed this OA seeking a direction to the Respondents to quash and set aside the impugned order in terms of which vacancies which ought to have been filled up by seniority, have been filled up by promoting junior staff belonging to SC/ST category in violation of law as laid down by the Honble Supreme Court as well as Full Bench of this Tribunal. They have also sought a direction to the Respondents to fill up the vacancies of Mail Train Loco Pilots strictly in accordance with the seniority subject to the rejection of unit without allowing any reservation.
12. The Private Respondents in their reply have submitted that the Applicants are misleading this Tribunal saying that reservation is not applicable in promotion, by mentioning some of the judgments, but no such principle has been laid down by any court that the reservation is not applicable in reservation. On the other hand, in all the judgments cited by the Applicants only one issue, whether in the case of non-selection post, the SC/ST candidates promoted on the basis of seniority can be counted against general post or reserved post. They have also stated that out of 53 posts, 10 are reserved for SC and 4 are reserved for St and only 4 SC candidates have been treated as a General candidate. Therefore, there is no question of challenging the whole panel. Further, they have stated that reservation in promotion has been given by the Constitution of India and unless and until the condition is amended, no one can take away the reservation in promotion and, therefore, the official Respondents correctly decided to fill up the vacant SC and ST posts and there is no illegality in the same.
13. The Official Respondents have also filed their reply stating that in terms of RBE 126 of 2010, reservation in promotion and the treatment of SC/ST candidates promoted on their own merit, it has been held that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservations or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. The said provision is also squarely applicable to the facts of the present case and hence there is no illegality in the order passed by the Railways so long as the said RBE is not specifically challenged and set aside.
14. We have heard the counsel for the parties in all these OAs. We have also perused the documents filed by the parties available on record. The question of reservation in promotion is already a settled issue. The five judges Constitution Bench of the Apex Court in M. Nagaraj & Others v. Union of India & Others JT 2006 (9) SC 191, 2006 (8) SCC 2112 held that reservation in promotion per se is not unconstitutional. Therefore, it has upheld the provisions for reservation in promotion for Scheduled Castes and Scheduled Tribes with consequential seniority as contained in Article 16 (4A) and Article 16 (4B) of Constitution. The said Article reads as under:-
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. But such reservation is subject to the condition that the State shall form its opinion that the Scheduled Castes and Scheduled Tribes are not adequately represented in the service. The relevant part of the Apex Courts judgment in the aforesaid case is as under:-
122. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
15. Again in its judgment in Suraj Bhan Meena and Another v. State of Rajasthan and Others (2011) 1 SCC 467, the Apex Court reiterated the conditions precedent for reservation of posts in promotion as inadequacy of representation of members of SCs and STs and ascertainment of the necessity of such reservation. Further, the said judgment held the notifications providing for promotion of members of SCs and STs with consequential seniority issued by State Government without first acquiring quantifiable data regarding inadequacy of representation of SCs and STs in public services has been rightly set aside by High Court. The relevant part of the said judgment reads as under:-
64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution.
65. In effect, what has been decided in M. Nagaraj's case (supra) is part recognition of the views expressed in Virpal Singh Chauhan's case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th 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 the 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 Article 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's case (supra) 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 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's case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes 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 Castes and Scheduled Tribes communities and the same does not call for any interference.
16. Further, in its recent judgment in U.P. Power Corporation Ltd. v. Rajesh Kumar & Others 2012 (4) SCALE 687 decided on 27.04.2012, the Apex Court has held that fresh exercise in the light of the judgment of the Constitution Bench in M. Nagarajs case (supra) is a categorical imperative. The relevant part of the said judgment is as under:-
41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.
17. A Full Bench of this Tribunal has also considered the issue earlier in great detail in its order dated 02.12.2010 in OA No. 2211/2008 - All India Equality Forum and Others v. Union of India and Others. The said order has also directed the Respondent Railways therein not to give accelerated promotion and consequential seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which Article 16(4A) of the Constitution is to operate, are complied with. The concluding part of the said order reads as under:-
37. We have applied our mind to the pleadings and the contentions raised by the learned counsel representing the applicants on the issues as mentioned above, but are of the view that once, in brevity, it is the case of the applicants that when no compliance of pre-conditions as spelled out in M. Nagarajs case has been done, reservation in promotion with accelerated seniority shall have to be worked in the way and manner as per the law settled earlier on the issue. If that be so, we need not have to labour on the issues raised by the applicants, as surely, if the position is already settled, the only relevant discussion and adjudication in this case can be and should be confined to non-observance of the pre-conditions for making accelerated promotions as valid. We have already held above that the railways have not worked out or even applied their mind to the pre-conditions as mentioned above before giving effect to the provisions of Article 16(4A), and for that reason, circular dated 29.2.2008 vide which the seniority of SC/ST railway servants promoted by virtue of rule of reservation/roster has to be regulated in terms of instructions contained in Boards letter dated 8.3.2002 and 13.1.2005, has to be quashed. There is a specific prayer to quash instructions dated 8.3.2002 and 13.1.2005 as well, but there would be no need to do so as the same have been discussed in the case of railways itself in the matter of Virpal Singh Chauhan (supra), and commented upon. While setting aside instructions dated 29.2.2008, our directions would be to not to give accelerated seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which alone Article 16(4A) of the Constitution is to operate, are complied with. No directions in this case can be given as regards seniority of the applicants vis-a-vis those who were appointed with them and have stolen a march over them because of reservation and have obtained accelerated seniority. No such specific prayer has been made either. However, it would be open for the parties to this lis or any one else to seek determination of their proper seniority for which legal proceedings shall have to be resorted to. It would be difficult to order across the board that all those who have obtained the benefit of reservation and have also been accorded accelerated seniority be put below general category candidates who may have been senior to the reserved category employees and became below in seniority on the promoted posts because of conferment of accelerated seniority to the reserved category employees. Surely, for seeking seniority over and above Scheduled Caste and Scheduled Tribe employees, number of things shall have to be gone into, as for instance, as to when was the promotion made and seniority fixed, and whether the cause of general category employees would be within limitation. There can be number of issues that may arise. We have mentioned only one by way of illustration.
18. The High Court of Punjab and Haryana at Chandigarh in CWP No.13218 of 2009 (O&M) Lachhmi Narain Gupta and others v. Jarnail Singh and Others decided on 15.07.2011 has also followed the Apex Courts dictum in the case of M. Nagarajs case (supra) and held as under:-
38. When the principles laid down in the case of M. Nagaraj(supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation in respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos. 5 and 6. The aforesaid fact has also been conceded by the respondent-Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagarajs case (supra) as well as in Suraj Bhan Meenas case (supra).
19. Co-ordinate Benches of this Tribunal has also decided OA No.2434/2012 Liladhar Ramchandi and Others Vs. Government of N.C.T. of Delhi and Others (decided on 27.09.2013) and OA No.2009/2013 Shri Vijender Singh and Others Vs. Commissioner of Police and Others (decided on 24.12.2013) following the aforesaid dictum laid down by the Apex Court. The operative parts of those OAs are as under:-
OA No.2434/20125. It is the specific case of the applicants that the respondents are not bound to make reservations for SCs/STs in the matter of promotions, and however, if they wish to exercise their discretion, and make such provision, they have to collect quantifiable data showing backwardness of the class and inadequacy of the representation of that class. Even if there are compelling reasons, the respondents have to see that the reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely, as per the dicta laid down in the aforesaid Judgments. But the respondents, without undertaking any exercise as contemplated by the Honble Apex Court, as aforesaid, and without making any provision for providing reservations in promotions, effected the promotions in various Nursing Cadres, by following the rule of reservation, and further contemplating to make further promotions to higher posts.
6. The respondents vide their reply though not denied the OA averments, but submitted that after the pronouncement of the Judgements in S.Nagaraj and Suraj Bhan Meenas cases (supra), they have not received any Instructions/Guidelines or Office Memorandums/Circulars either to follow those Judgments or orders passed in compliance of the said Judgments, and hence, they have applied the rule of reservations in effecting promotions to various Nursing Cadres. It is further stated that the Department is in the process of finalizing the seniority lists of Staff Nurses and as soon as those lists are finalized, the ad hoc promotions made under the impugned Annexures would be reviewed and further appropriate action as per law would be taken. They further submit that since the impugned promotions are only of ad hoc nature and would be reviewed once the seniority lists of Staff Nurses are finalized, therefore, the interference of this Tribunal is not warranted at this stage.
7. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Ms. P.K.Gupta, the learned counsel for the respondents and also gone through the pleadings on record.
8. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
9. The contention of the respondents that the promotions were effected only on ad hoc basis and hence, they will apply the law laid down by the Honble Apex Court while making regular promotions and till then they maintain the ad hoc promotions is unacceptable, untenable and unsustainable.
10. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned promotion orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review all the promotions effected by applying rule of reservation to the categories of Nursing Sisters, Assistant Nursing Sisters, Deputy Nursing Sisters and Nursing Superintendents and re do the entire exercise of effecting promotions to the said categories, in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, draw the seniority lists in the said categories as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
11. The OA is accordingly allowed in terms of the aforesaid directions. No order as to costs.OA No.2009/2013
8. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Shri N.K.Singh for Mrs. Avniash Ahlawat, the learned counsel for the official respondents No.1 and 2 and Shri Ajesh Luthra for Respondents No.3 to 5 and 7 and Shri A.K.Singh for Respondent No.6 and also gone through the pleadings on record.
9. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
10. The learned counsel for the applicants relied upon the Judgements of the Honble Apex Court in DWARIKESH SUGAR INDUSTRIES LTD V. PREM HEAVY ENGINEERING WORKS (P) LTD., AND ANOTHER, (1997) 6 SCC 450 and submits that the Apex Court has observed in Para 32 as under:
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. He also placed reliance on a Judgment of this Bench in OA No.2434/2012, dated 5.12.2013, to this effect.
11. Shri Ajesh Luthra and Shri A.K.Singh, the learned counsel appearing for the private respondents submit that they belong to Unreserved category and are very much senior to the applicants in the category of Sub Inspector (Executive) and irrespective of the result of the OA, they are entitled for promotion to the post of Inspector, in view of their seniority and in view of availability of the sufficient vacancies. Further, the learned counsel appearing for the private respondents also not disputed the legal position and the applicability of the Judgements of the Honble Apex Court in M. Nagaraj and Suraj Bhan Meena, etc. to the facts of the present case.
12. This Tribunal while issuing notices restrained the respondents from making any further promotions by order dated 11.06.2013. When the MA No.1994/2013 filed by respondents 3 to 5 seeking to vacate or modify the said order, was not found favour by this Tribunal by order dated 06.08.2013, they filed W.P (C) No.6582/2013 and the same was disposed by the Honble High Court of Delhi vide its order dated 21.10.2013 directing this Tribunal to dispose the main OA itself.
13. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons sought to be promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review the impugned order issued by applying rule of reservation and to redo the entire exercise in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, redraw the names of Sub Inspectors (Executive) for admission to Promotion List `F (Exe.) for the vacancy year 2013-14, as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
14. The OA is accordingly allowed in terms of the aforesaid directions. In view of the orders in OA, no orders are necessary in MA 1994/2013 and MA 2753/2013 filed for vacation/modification of interim order dated 11.06.2013 and they are also disposed of accordingly. No order as to costs.
20. The Apex Court has also considered the questions (i) when a Scheduled Caste candidate competes for a non-reserved post and is selected whether he should be counted against the quota reserved for Scheduled Castes or not and (ii) when the senior-most among eligible candidates belongs to a Scheduled Caste, on being promoted, whether he should be treated as an open category candidate or to be counted against the quota for Scheduled Caste in its judgment in K. Manorama Vs. U.O.I. represented by General Manager, Southern Railway and Others 2010 (10) SCC 323 [decided on 29.09.2010. The Apex Court has categorically stated that the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability.
21. In view of the above facts and law laid down by the Apex Court and followed by different High Courts and Benches of this Tribunal all these Original Applications are allowed. Consequently,
(i) the impugned order dated 30.12.2011 in OA No. 755/2012 is quashed and set aside. We also direct the Respondents to fill up the vacancies of Passenger Guards strictly in accordance with the seniority subject to the rejection of unfits without allowing reservation.
(ii) the impugned panel dated 28.12.2010 in OA No. 2058/2012 is quashed and set aside to the extent that the Applicants names have not been included therein. We also quash and set aside the order dated 25.04.2012 rejecting the claims of the Applicants for interpolation in the aforesaid panel dated 28.12.2010. We further direct the Respondents to fill up the vacancies of Loco Pilots Goods strictly in accordance with the seniority subject to the rejection of unfits without allowing the reservation.
(iii) the impugned order dated 16.10.2012 in OA No. 3603/2012 is quashed and set aside to the extent that the vacancies of Mail Train Loco Pilots have been filled by promoting junior staff belonging to SC/ST category in violation of the law laid down by the Supreme Court. We also direct the respondents to fill up the vacancies of Mail Train Loco Pilots strictly in accordance with the seniority subject to the rejection of unfits without allowing any reservation.
(iv) the impugned order dated 09.07.2013 in OA No. 2483/2013 is quashed and set aside to the extent that the vacancies of Loco Pilot Passengers have been filled up by reservation as in (OA No.3603/2012).
22. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
23. There shall be no order as to costs.
(Shekhar Agarwal) (G. Geroge Paracken)
Member (A) Member (J)
Rakesh