Central Administrative Tribunal - Chandigarh
Manoj Kumar Sharma Son Of Shri Ram Kumar ... vs Union Of India Through The Secretary To ... on 30 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH OA. 840/PB/2012 (Reserved on 25.07.2013) Chandigarh, this the day of July, 2013 CORAM: HONBLE MR.RANBIR SINGH , MEMBER(A) HONBLE MR. SANJEEV KAUSHIK, MEMBER(J) 1.Manoj Kumar Sharma son of Shri Ram Kumar Sharma son of Shri Ram Kumar Sharma, aged 42 years, Inspector, Central Excise Division, Mani Gobindgarh. 2.Manoj Nayyar son of Sh. Yash Pal Nayyar, aged 44 years, Inspector, Central Excise Commissionerate Ludhiana, HQ, CCU, Chandigarh. 3.Manish Bhatnagar son of Shri V.K. Bhatnagar, aged 42 years, Inspector (Appeal Unit), Central Excise, Chandigarh I, Chandigarh. 4.Munish Arya son of Sh. R.L. Sud, age 42 years (Appeal Unit), Inspector, Central Excise, Chandigarh II, Chandigarh. 5.Aneesh Dewan son of Shri S.K. Dewan, age 43 years, Inspector, Central Excise Commissionerate, Ludhiana, HQrs, CCU, Chandigarh. 6.Amrit Pal Singh son of Late Sh. Arjan Singh Malhotra, Inspector, HQrs (Preventive) Central Excise Commissionerate, Chandigarh I. 7.Parvinder Singh Tuli, son of Shri Pritam Singh Tuli, Inspector Central Excise Division (Tech), Ropar. 8.Rajeev Dhawan son of Shri S.R. Dhawan, Inspector, Directorate of Central Excise Intelligence, Ludhiana. 9.Gurpreet Singh son of Late Sh. Joginder Singh, Inspector, Central Excise Division, Jalandhar. 10.Ramesh Arora s/o Sh. D.R. Arora, Inspector, Central Excise (Preventive) Ropar. 11.Mangat Ram Kapoor son of Shri Sardari Lal Kapoor, Inspector, Central Excise Division, Chandigrh. APPLICANTS BY ADVOCATE: MR. V.K. SHARMA VERSUS 1.Union of India through the Secretary to Government of India, Ministry of Personnel, Public Grievances and Pensions, DOPT, 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 Zone, Chandigarh. 4.Bhasha Ram, Superintendent, Adjudication Cell, Commissioner Competency Cases, Office of the Commissioner, Central Excise Commissionerate, Chandigarh I. 5.Ashok Kumar, Superintendent, HQ (Technical) Centre Excise Commissionerate, Chandigarh I. RESPONDENTS BY ADVOCATE: MR. SANJAY GOYAL, FOR RESPDTS.1-3. MR. VANEET SONI FOR RESPDTS. 3 & 5. ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER(J):-
1. By means of present Original Application filed under Section 19 of Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:-
(i) quash the action of the respondents in providing reservation in matter of promotion in violation of law settled by the Honble Apex Court in the various cases detailed in the body of the original application.
(ii) quash the order dated 3.8.2012 (Annexure A-1) by which respondents No. 4 & 5 have been promoted to the post of Superintendent by giving them reservation against the law settled by the Honble Apex Court.
(iii) Issue a direction to the respondents that no reservation is permissible in any service without first conducting an exercise, in terms of the decision rendered by the Apex Court in the case of M. Nagraj and Ors. Vs. UOI and others which has been reiterated by the Honble Apex Court in the latest judgement in the case of Suraj Bhan Meena and another Vs. State of Rajasthan reported in 2011 (1) SCC (L&S) Page 1 which requires to follow the parameters, namely:-
a) Backwardness of any class;
b) Inadequacy of representation of that class in public employment; &
c) Overall requirements of the efficiency of the administration.
(iv) Direct the respondents to review all promotions made of reserved category candidates by applying the rule of reservation since 2.7.1997 as held by the Honble High Court of Punjab and Haryana (Annexure A-5)
2. The brief facts are to be noticed first.
3. The solitary contention raised by the applicant is to implement a direction given in the case of M. Nagraj Vs. UOI(2006) 8 SCC 212 be carried out to the effect that there can be no reservation in the matter of promotions for the members of the Reserved Category.
4. In support of the above contention, Sh. V.K. Sharma, learned counsel appearing on behalf of the applicant also relied upon the judgement rendered by the Honble High Court in CWP No. 13218 of 2009 titled Lachhmi Narain Gupta and others Vs. Jarnail Singh and Others decided on 15.7.2011. He further placed reliance upon an order of this Tribunal in OA. 38/CH/11 titled Rajesh Rai & Anr. Vs. UOI decided on 2.5.2012 where the OM dated 11.7.2012 had been quashed and directions had been given to the respondents not to grant reservation in the promotions before complying with the directions contained in M. Nagraj case and Suraj Bhan Meenas case.
5. Sh. Sanjay Goyal, learned counsel appearing on behalf of the official respondents did not dispute the above contention of the learned counsel for the applicant that the issue had already been put to rest by the jurisdictional High Court and following the same, this Tribunal also in case of Rajesh Rai & Anr. (supra), have followed the same rule. He only submitted that the judgement in the case of Lachhmi Narain Gupta and others Vs. Jarnail Singh (supra), had been challenged by the official respondents before the Honble Supreme Court. Therefore, the matter be kept in abeyance till the same is disposed of by the Honble Supreme Court. He fairly admitted this fact that there is no stay granted by the Honble Supreme Court in the case of Lachhmi Narain Gupta and others Vs. Jarnail Singh.
6. Sh. Vineet Soni, learned counsel appearing on behalf of respondents 4 & 5, only submitted that since the private respondents have been promoted in view of the judgement passed in case of R.K. Sabharwal , therefore, their promotion cannot be annulled.
7. We have considered the rival submissions and have carefully gone through the pleadings available on record.
8. The solitary grievance raised in this OA that there shall not be reservation in promotions. This issue has already been settled by the Honble Supreme Court in M. Nagraj case (supra). Relying upon the same the jurisdictional High Court has already held in Lachhmi Narain Gupta and others Vs. Jarnail Singh (supra) that the reservation cannot be granted in promotion. Paras 38 and 39 of the above judgement read 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).
39. The net result is that no reservation in promotion could be made in pursuance to office memorandum dated 2.7.1997. We are not dealing with many other contentions raised by the learned counsel for the petitioners for the reason that the core issue going to the roots of the matter has been determined in their favour and such a necessity is obviated.
9. Following this, this Tribunal in case of Rajesh Rai & Anr., has also taken the same view and have allowed the OA and quashed the OM dated 11.7.2002 which also reads as under:-
10. In view, thus, of the above, the OA shall stand allowed. We would quash OM dated 11.07.2002 (Annexure A-1) and also OM 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 judgement qua the applicants herein viz a viz the dispensation in entirety. Recently, the Lordships of the Honble Supreme Court reiterated their earlier view which was taken in M. Nagraj case (supra) in Uttar Pradesh Power Corporation Limited Versus Rajesh Kumar & Others, (2012) 7 SCC 1. Paras 85 & 86 of the judgement reads as under:-
85. 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. Nagraj. 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 Virpal Singh Chauhan and Ajit Singh.
86. We are of the firm view that a fresh exercise in the light of the judgement of the Constitution Bench in M. Nagraj 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(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedents 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.
10. Once the issue has already been settled by the jurisdictional High Court in view of the law laid down by Honble Supreme court in M. Nagraj case (supra), therefore, in faithful compliance of the judgement, we allow the OA. Accordingly, the OA is allowed and the impugned order dated 3.8.2012, promoting the respondents No. 4 & 5 is hereby quashed and set aside. As informed by the learned counsel for the applicant that the respondents, even during the pendency of the OA, have permitted persons from the reserved category. If that is so, then, their promotion is also held to be illegal and the same is also quashed and set aside.
11. In the above terms, the OA stands allowed.
12. No orders as to the costs.
(SANJEEV KAUSHIK) MEMBER(J) (RANBIR SINGH) MEMBER(A) Dated: July , 2013.
ND*