Central Administrative Tribunal - Jabalpur
Devendra Kumar Tiwari vs M/O Railways on 25 September, 2024
1 OA 203/149/2018, 203/150/2018 & OA 203/151/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Applications Nos.203/149/2018, 203/150/2018 &
203/151/2018
Jabalpur, this Wednesday, the 25th day of September, 2024
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MRS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
1. Original Application No.203/149/2018
Devendra Kumar Tiwari, S/o Salik Ram Tiwari, aged about 40 years,
presently working as Tech-I/SECR/RPR, R/o House No.01/08, Harsh Vihar
Colony, Behind Kalyan Gas Godown, Raipur (C.G.) - 492007 - Mobile
No.9752485372. -Applicant
(By Advocate - Shri A.V. Shridhar)
Versus
1. The Secretary, Railway Board, Ministry of Railway, Rail Bhawan,
Raisena Road, Rafi Marg, New Delhi - 110001.
2. Union of India through General Manager, South East Central Railway,
New GM Building, Bilaspur, Chhattisgarh 495004.
3. Chief Personnel Officer, Divisional Office, South East Central Railway,
Bilaspur, Chhattisgarh 495004.
4. Deputy Chief Personnel Officer (HQ), South East Central Railway,
Bilaspur (C.G.) 495004.
5. Deputy Chief Engineer (TM), Third Floor, GM Office, South East
Central Railway, Bilaspur, Chhattisgarh 495004 -Respondents
(By Advocate - Shri Siddharth Rathod)
Page 1 of 9
2 OA 203/149/2018, 203/150/2018 & OA 203/151/2018
2. Original Application No.203/150/2018
Ankit Kumar Tiwari, S/o Shri B.P. Tiwari, aged about 32 years, presently
working as Khalasi/Helper/TMO/BSP, C/o Mukesh Tiwari, Rly Qtr
No.883/1, Construction Colony, Tarbahar, Bilaspur (C.G.) 495004 -
Mobile No.9589089305 -Applicant
(By Advocate - Shri A.V. Shridhar)
Versus
1. Union of India through General Manager, South East Central Railway,
New GM Building, Bilaspur, Chhattisgarh 495004.
2. Chief Personnel Officer, South East Central Railway, Bilaspur,
Chhattisgarh 495004.
3. ADRM, South East Central Railway, Bilaspur (C.G.) 495004.
4. Sr DOM (Co-ord), South East Central Railway, Bilaspur (C.G.) 495004.
5. DOM (M/L), South East Central Railway, Bilaspur (C.G.) 495004.
-Respondents
(By Advocate - Shri Siddharth Rathod)
3. Original Application No.203/151/2018
Devendra Kumar Tiwari, S/o Salik Ram Tiwari, aged about 40 years,
presently working as Tech-I/SECR/RPR, R/o House No.01/08, Harsh Vihar
Colony, behind Kalyan Gas Godown, Raipur (C.G.) 492007 - Mobile
No.9752485372 -Applicant
(By Advocate - Shri A.V. Shridhar)
Versus
1. The Secretary, Railway Board, Ministry of Railway, Rail Bhawan,
Raisena Road, Rafi Marg, New Delhi - 110001.
Page 2 of 9
3 OA 203/149/2018, 203/150/2018 & OA 203/151/2018
2. Union of India through General Manager, South East Central Railway,
New GM Building, Bilaspur, Chhattisgarh 495004.
3. Chief Personnel Officer, Divisional Office, South East Central Railway,
Bilaspur, Chhattisgarh 495004.
4. Assistant Personnel Officer, Divisional Office, Personnel Branch, South
East Central Railway, Bilaspur Chhattisgarh 495004 -Respondents
(By Advocate - Shri Palash Tiwari)
(Date of reserving order : 11.09.2024)
ORDER
By Akhil Kumar Srivastava, JM.-
The applicants are aggrieved that they have not been empanelled for promotional post due to the formula of reservation applied by the respondents.
2. Since the issue involved in all the three Original Applications is common in nature, they are being decided by way of a common order. For the purpose of this order, facts and the documents referred in Original Application No.203/149/2018, have been taken.
3. The applicant is working as Tech-I and eligible for promotion to the post of JE/TM against 25% Departmental Promotion Quota. 3.1 The respondents, vide notification dated 05.07.2017 notified 16 posts (UR-13, SC-02, ST-01).
Page 3 of 9
4 OA 203/149/2018, 203/150/2018 & OA 203/151/2018 3.2 Vide Office Memorandum dated 23.10.2017 (Annexure A-2), result of the written examination was published, whereby out of 48 candidates, 14 candidates including the applicant, were declared successful in the written examination. However, vide impugned Office Memorandum dated 02.02.2018 (Annexure A-1), a list of 13 candidates belonging to unreserved category have been published and the name of the applicant has not been considered due to the reservation applied in promotion. 3.3 Learned counsel for the applicants submitted that the reservation applied in the present case is against the law laid down in the case of M. Nagraj vs. Union of India & others, (2006) 8 SCC 212 as no quantifiable data was collected by the respondents.
4. In their reply, the respondents have admitted that they have followed the reservation in promotions in terms of Railway Board's letter dated 21.08.1997 (Annexure R-2). They have further stated that there are no such guidelines received from Railway Board regarding non applicability of reservation policy in promotion.
5. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.
Page 4 of 9
5 OA 203/149/2018, 203/150/2018 & OA 203/151/2018
6. The issue with regard to the grant of reservation in promotion is no more res-integra. Before answering the above poser, we would like to notice here that question relating to reservation in promotional posts fell for consideration of the Hon'ble Apex Court in Indra Sawhney's case (AIR 1993 SC 477) wherein impact of Article 16(4) of the constitution, relating to the State's powers for making provision for reservation in appointment or posts in favour of any backward class of citizens, which in the opinion of the state was not adequately represented in services under the state, was considered. Further question for determination was whether such power extended to promotional posts, the Hon'ble Supreme Court answered the question by holding that Article 16 (4) does not permit provision for reservation in the matter of promotion. Further, such rule was to be given effect to only prospectively and would not affect the promotions already made, whether made on regular basis or on any other basis. Ultimately the court held that that Article 16(4) does not permit provision for reservation in the matter of promotion.
7. It has been held by the highest court of law that there was to be no reservation in promotion unless the Government of India undertakes the exercise as mandated in case of M. Nagraj (supra) wherein validity of Page 5 of 9 6 OA 203/149/2018, 203/150/2018 & OA 203/151/2018 Article 16 ( 4-A) of Constitution of India was deliberated by their Lordships. After analyzing the complete law on the subject, conclusion has been recorded in paras 120, 121 & 122 in the judgment holding that the clause empowers the state to make any provision for reservation in matters of promotion with consequential seniority to any class of posts in the service under the state in favour of Scheduled Castes and Scheduled Tribes where the state is of the opinion that such classes are not adequately represented in the service of the state. It is not that consequential seniority on promotion against Roster Point is automatic. The State can frame rule based upon the survey conducted by State showing that there is inadequacy in representation of the State SC & ST category. Till such survey is conducted, reservation in promotion cannot be extended. The conclusion as recorded in paras 120 to 123 of M. Nagaraj's case, reads as under:-
"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 Page 6 of 9
7 OA 203/149/2018, 203/150/2018 & OA 203/151/2018 sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal.
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." The law laid down in case of M. Nagraj (supra) holds the field and any deviation from the same amounts to violation of settled mandate by the Constitutional Bench. The respondents have wrongly interpreted the Office Memorandum dated 15.06.2018 (Annexure R-6) issued by the DoP&T as the said letter itself clearly states that promotions can be done from reserved Page 7 of 9 8 OA 203/149/2018, 203/150/2018 & OA 203/151/2018 to reserved and unreserved to unreserved category while in the present case, the candidates from the reserved category have been considered against the vacancies created for unreserved category. Suffice to record herein that till date the Railways have not carried out any exercise showing that there is inadequacy in representation of the SC & ST category in terms of the mandate in case of M. Nagraj (Supra).
8. 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 issued prior to or subsequent to the said declaration, are non-est and cannot be followed.
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 and once law was declared by the Hon'ble Apex Court, no person or authority can follow any Order/Circular/Letter, which is against to the law of the land on the ground that the said Circular/Letter/Order was not questioned by the employee. In any event, in view of the referred categorical declaration of the law by the Hon'ble Apex Page 8 of 9 9 OA 203/149/2018, 203/150/2018 & OA 203/151/2018 Court in M. Nagaraj (supra) coupled with the judgment passed by the Hon'ble Supreme Court in Jernail Singh's case, unless the mandatory exercise of collecting the quantifiable data is conducted, no authority or Government can follow the rule of reservation in promotions, Since in the present case, no such exercise is conducted, the action of the respondents in following the rule of reservation in promotions is unsustainable.
10. In the circumstances and for the aforesaid reasons, all the three Original Applications are allowed and the action of the respondents to the extent of providing reservation in promotion is declared illegal and unsustainable in view of the law laid down by the Hon'ble Apex Court in M. Nagaraj (supra). However, the respondents are at liberty to proceed with the promotion without the element of rule of reservation and consider the case on merits or else by issuing a fresh notification, in accordance with law.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
Page 9 of 9