Central Administrative Tribunal - Delhi
Karamjit Kaur vs M/O Railways on 8 February, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.4421/2015
M.A.No.4061/2015 and 548/2017
Reserved on:06.02.2018
Pronounced on:08.02.2018
HON'BLE MR. V. AJAY KUMAR, MEMBER (J)
HON'BLE MS. NITA CHOWDHURY, MEMBER (A)
1. Smt. Karamjit Kaur,
W/o Shri P.S. Gill,
Aged about 53 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi.
2. Shri D.K. Gandhi,
S/o Shri L.R. Gandhi,
Aged about 49 years,
Working as Booking Supervisor,
Under Hazrat Nizamuddin,
Northern Railway, New Delhi.
3. Shri Anil Vyas,
S/o Late Dev Raj Vyas,
Aged about 49 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi.
4. Shri Ashok Kapoor,
S/o Late Mukand Kapoor,
Aged about 49 years,
Working as Commercial Supervisor,
Under New Delhi Railway Station,
Northern Railway, Delhi.
5. Smt. Mridula Verma,
W/o Shri Rajender Prasad Verma,
Aged about 48 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi.
6. Shri Ravinder Singh Rawat,
2
OA No.4421/2015
S/o Shri Madan Singh Rawat,
Aged about 51 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi.
7. Smt. Poonam Kapoor,
W/o Shri Harish Kapoor,
Aged about 52 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi.
8. Shri Kishan Dutt,
S/o Shri Hari Singh,
Aged about 48 years,
Working as Commercial Supervisor,
Under Daya Basti Railway Station,
Dayabasti, Delhi.
9. Shri N.C. Pathak,
S/o Shri R.P. Pathak,
Aged about 50 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, Delhi.
10. Smt. Geeta Rani,
W/o Shri Lajpat Rai,
Aged about 47 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi.
11. Shri Surinder Kumar Aggarwal,
S/o Shri Nanak Chand Aggarwal,
Aged about 54 years,
Working as Commercial Supervisor,
Under Delhi Junction Station,
Northern Railway, New Delhi. ... Applicants
(By Advocate: Shri Manjeet Singh Reen)
Versus
Union of India & Others : through
1. The Secretary,
3
OA No.4421/2015
Ministry of Railways,
Railway Board,
Rail Bhawan,
New Delhi.
2. The General Manager,
Northern Railway,
Baroda House,
New Delhi.
3. The Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi.
4. Shri Brijesh Kumar,
S/o Shri Jagdish Rai,
Working as Chief Commercial Supervisor.
5. Smt. Asha Rani,
W/o Shri Ranbir Singh,
Working as Chief Commercial Supervisor.
Under Northern Railway,
Delhi Station, New Delhi.
6. Shri Raju Kanojia,
S/o Shri Ram Kishan,
Working as Chief Commercial Supervisor.
Under Parcel Office, Northern Railway,
New Delhi.
7. Shashi,
W/o Shri Amar Singh,
Working as Chief Commercial Supervisor.
Under Northern Railway,
Booking Office, New Delhi.
8. Bhagwant Singh Meena,
S/o Shri Raj Pal Meena,
Working as Chief Commercial Supervisor.
Under Booking Office, Hazrat Nizamuddin,
Northern Railway, New Delhi.
9. Amar Singh Meena,
S/o Shri Kedar Lal Meena,
Working as Chief Commercial Supervisor.
Under Booking Office, Northern Railway,
4
OA No.4421/2015
Delhi Station, Delhi.
10. Shri Krishan Meena,
S/o Shri Ram Ji Lal Meena,
Working as Chief Commercial Supervisor.
Under Booking Office,
FDN Station, Northern Railway.
11. Shri Jagdish Prasad,
S/o Shri Shanker Lal,
Working as Chief Commercial Supervisor.
Under Northern Railway,
HCC/SS/P/TPS Goods,
New Delhi.
12. Sanjiv Kumar Saha,
S/o Shri Manik Chand Saha,
Working as Chief Commercial Supervisor.
Under Booking Office, Northern Railway,
Panipat Station, Haryana.
13. Shri Ravi Kash,
S/o Shri Raghubir Chand,
Working as Chief Commercial Supervisor.
Under Goods Office, Northern Railway,
Delhi Station, Delhi. ... Respondents
(By Advocate: Shri Kripa Shankar Prasad for respondents No.1 to 3)
ORDER
By Mr. V. Ajay Kumar, Member (J) MA No.4061/2015 for joining together in one application is allowed.
2. The applicants, who are working as Commercial Supervisors and belongs to General Category, filed the OA questioning the action of the respondents in following the rule of reservation in promotion, i.e., while preparing the suitability panel for the post of Chief Commercial Supervisors, vide the impugned Annexure A1 order dated 22.04.2015.
5OA No.4421/2015
3. The respondents vide their counter, categorically admitted that they have promoted various persons who are juniors to the applicants by following the rule of reservation in terms of Railway Board letters dated 09.09.1997 and 21.08.1997 and as per their Policy under PS No.11450/97.
4. Heard Shri Manjeet Singh Reen, learned counsel for the applicants and Shri Kripa Shankar Prasad, learned counsel for the respondents and perused the pleadings on record. Though notices were served to the private respondents through respondent No.3, but they were not represented either in person or through any counsel.
5. In M. Nagaraj & Ors. Vs. Union of India & Others, (2006) SCC 212 (supra), the Constitution Bench of the Hon'ble Apex Court observed as under :-
"2. The facts in the above writ petition, which is the lead petition, are as follows.
Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union of India and others v. Virpal Singh Chauhan and others , Ajit Singh Januja and others v. State of Punjab and others (Ajit Singh-I), Ajit Singh and others (II) v. State of Punjab and others , Ajit Singh and others (III) v. State of Punjab and others , Indra Sawhney and others v. Union of India , and M. G. Badappanavar and another v. State of Karnataka and others . Petitioners say that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. Petitioners say that the equality in the context of Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority. Petitioners say that by attaching consequential seniority to the 6 OA No.4421/2015 accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). Petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. Petitioners say that in the case of Indra Sawhney5 decided on 16.11.1992, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion. Petitioners say that contrary to the said judgment delivered on 16.11.1992, the Parliament enacted the Constitution (Seventy- Seventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-Seventh Amendment) Act, 1995 is also challenged by some of the petitioners. Petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous...."
After referring to a series of authorities, the Court concluded as follows :
"121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) 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 OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.
122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. 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.
124. Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.
125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.
6. In Suresh Chand Gutam Vs. State of Uttar Pradesh and Others, AIR 2016 SC 1321, a batch of Writ Petitions were preferred under Article 32 of the Constitution of India praying to issue a direction in the nature 7 OA No.4421/2015 of mandamus commanding the respondent Government to enforce appropriately the constitutional mandate as contained under the provisions of Articles 16(4A), 16(4B) and 335 of the Constitution of India or in the alternative, for a direction to the respondents to constitute a Committee or appoint a Commission chaired either by a retired Judge of the High Court or Supreme Court in making survey and collecting necessary qualitative data of the Scheduled Casts and the Scheduled Tribes in the services of the State for granting reservation in promotion in the light of direction given in M. Nagaraj & Others v. Union of India & Others (supra). It was held as under:-
"43. Be it clearly stated, the Courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation. The Courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of sub-ordinate legislation. We may hasten to add that in certain decisions directions have been issued for framing of guidelines or the court has itself framed guidelines for sustaining certain rights of women, children or prisoners or under-trial prisoners. The said category of cases falls in a different compartment. They are in different sphere than what is envisaged in Article 16 (4-A) and 16 (4-B) whose constitutional validity have been upheld by the Constitution Bench with certain qualifiers. They have been regarded as enabling constitutional provisions. Additionally it has been postulated that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect the data would tantamount to asking the authorities whether there is ample data to frame a rule or regulation. This will be in a way, entering into the domain of legislation, for it is a step towards commanding to frame a legislation or a delegated legislation for reservation.
44. Recently in Census Commissioner & others v. R. Krishnamurthy a three-Judge Bench while dealing with the correctness of the judgment of the high court wherein the High court had directed that the Census Department of Government of India shall take such measures towards conducting the caste-wise census in the country at the earliest and in a time-bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour, the court analyzing the context opined thus :-
"Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy-making by adding something to the policy by ways of issuing a writ of mandamus."8 OA No.4421/2015
We have referred to the said authority as the court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued." and accordingly, dismissed the Writ Petitions.
7. The categorical finding by the Hon'ble Apex Court in M. Nagaraj (supra), as explained in the aforesaid recent decision in Suresh Chand Gautam (supra), is that the State is not bound to make reservation for SCs/STs in matters of promotion and, however, if the State wishes to exercise the discretion and make such provision, it has to collect quantifiable data showing backwardness of the Class and inadequacy of representation of that Class in public employment in addition to compliance with Article 335.
8. It is not in dispute that the respondents have not conducted the exercise as mandated by the Constitution Bench in M. Nagaraj (supra) and without conducting the same, no State/Authority can apply the rule of reservation in promotion. It is also not in dispute that the decision in M. Nagaraj (supra) is not reversed/modified/stayed in any other subsequent decision of the Hon'ble Apex Court till date. The learned counsel for respondents submits that since the issue of "whether the judgment of M. Nagaraj needs to be revisited or not" was referred to a Constitution Bench in the matter of The State of Tripura & Others Vs. Jayanta Chakraborty & Ors. in Civil Appeal Nos.4562-4564 of 9 OA No.4421/2015 2017 & batch dated 14.11.2017, the OA may be adjourned sine die till the Hon'ble Apex Court decides the said issue.
9. The Hon'ble Apex Court in its order dated 14.11.2017 in The State of Tripura & Ors. Vs. Jayanta Chakraborty & Ors. observed as under :-
"The questions posed in these cases involve the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution of India in the backdrop of mainly three Constitution Bench decisions - (1) Indra Sawhney and others v. Union of India and others 1992 Supp. (3) SCC 217, (2) E.V Chinnaiah v. State of A.P. and others (2005) 1 SCC 394 and (3) M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212. One crucially relevant aspect brought to our notice is that Nagaraj (supra) and Chinnaiah (supra) deal with the disputed subject namely backwardness of the SC/ST but Chinnaiah (supra) which came earlier in time has not been referred to in Nagaraj (supra). The question of further and finer interpretation on the application of Article 16(4A) has also arisen in this case. Extensive arguments have been advanced from both sides. The petitioners have argued for a re-look of Nagaraj (supra) specifically on the ground that test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney (supra) and Chinnaiah (supra). On the other hand, the counsel for the respondents have referred to the cases of (4) Suraj Bhan Meena and Another v.
State of Rajasthan and others (2011) 1 SCC 467; (5) Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others (2012) 7 SCC 1; (6) S. Panneer Selvam and others v. State of Tamil Nadu and others (2015) 10 SCC 292; (7) Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others (2015) 12 SCC 308; and (8) Suresh Chand Gautam v. State of Uttar Pradesh and others (2016) 11 SCC 113 to contend that the request for a revisit cannot be entertained ad nauseam. However, apart from the clamour for revisit, further questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, communities, groups or parts thereof of SC/ST notified by the President under Articles 341 and 342 of the Constitution of India."
2. Having regard to the questions involved in this case, we are of the opinion that this is a case to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India. Ordered accordingly. Place the files before the Hon'ble Chief Justice of India immediately.
3. Though the learned counsel have pressed for interim relief, we are of the view that even that stage needs to be considered by the Constitution Bench. The parties are free to mention the urgency before the Hon'ble Chief Justice of India."
10. In Ashok Sadarangani & Another Vs. Union of India (2012) 11 SCC 321, Hon'ble Apex Court held as under :-
"19. As was indicated in Harbhajan Singh's case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field."10 OA No.4421/2015
11. As held in Ashok Sadarangani (supra), once the legal principle was decided by Hon'ble Apex Court and as long as the same is neither reversed nor modified by any other decision, the said settled principle has to be followed, irrespective of the fact that the same is pending before any higher forum or before a Larger Bench or before a Constitution Bench.
12. It is also the settled principle of law that once the principle is declared by the Hon'ble Apex Court in a particular manner with retrospective implication, any contrary circulars/ Orders/Memorandums/Policies issued prior to or subsequent to the said declaration, are non-est and cannot be followed.
13. In view of the above referred categorical declaration of the law by the Hon'ble Apex Court in M. Nagaraj (supra) unless the mandatory exercise of collecting the quantifiable data is conducted, no authority or Government can follow the rule of reservation in promotions.
14. MA No.548/2017 filed for seeking deletion of respondent No.1, i.e., Secretary, Ministry of Railways, Railway Board, New Delhi, is dismissed since the subject matter relates to policy matter of the respondents-Railways.
15. In the circumstances and for the aforesaid reasons, the respondents are directed to act in terms of M. Nagaraj (supra), i.e. 11 OA No.4421/2015 without following the rule of reservation in promotions and to redraw the impugned promotional list/panel with all consequential benefits, however, without any back wages in the circumstances. This exercise shall be completed within 90 days from the date of receipt of a copy of this order. Accordingly, the O.A. stands disposed of. No costs.
(NITA CHOWDHURY) (V. AJAY KUMAR) Member (A) Member (J) RKS