Central Administrative Tribunal - Kolkata
Umesh Kumar Mahato And 14 Ors. vs Union Of India (Uoi) And Ors. on 9 February, 2007
Equivalent citations: 2008(1)SLJ176(CAT)
ORDER A.R. Basu, Member (A)
1. The applicant, Umesh Kumar Mahato and others total 15 in number, have filed this case under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:
(a) Let the application be allowed to move before the Hon'ble Tribunal by the applicants jointly on common cause of action under Section 4(5)(a) of the CAT Procedure Rules, 1987 as amended time to time;
(b) Direct the respondents to cancel and/or set aside the impugned employment notice dated 25.7.1997 as set out in document A-1;
(c) Direct the respondents to cancel and/or set aside impugned panel dated 26.5.1999 as set out in document A-6;
(d) Direct the respondents to cancel and/or set aside the impugned recruitment right of the persons who have already been given recruitment out of the aforesaid impugned employment notice and impugned panel for the Group 'D' post;
(e) Direct the respondents to publish fresh employment notice by calling for actual number of UR candidates including the applicant, Reserved candidates and OBC candidates according to rule and reservation roster, and according to the Supreme Court's judgment for the recruitment of Gr. 'D' post;
(f) Any order or further order or orders as to the Hon'ble Tribunal may deem fit and proper.
2. Brief facts of the case as stated in the O.A. are that an employment notice dated 25.07.1997 was published by the Divisional Railway Manager, S.E. Railway, Adra for recruitment to the Group 'D' posts of Electrical Department (General Services and TRD streams) of Adra Division. The proposed recruitment was for 240 posts with the break up of UR-120, SC-36, ST-26 and OBC-58. There was also a break up out of 240 posts of General services and TRD which was as follows:
General Services : 40 UR : 20 SC : 06 ST : 04 OBC : 10 TRD : 200 UR : 100 SC : 30 ST : 22 OBC : 48 Recruitment was to be made for the following posts: (1) Electrician (2) Instrument Mechanic (3) Fitter(Electrical/Mechanical) (4) Winder (Armature) (5) Lineman (6) Wireman (7) Motor Vehicle Mechanic (8) Aircraft Electrician (9) Electronics Mechanics (10) Diesel Mechanic (11) Auto Electrician (12) Refrigeration and Air conditioning. The eligibility conditions were as follows:
(1) For serving Group 'D' Employees who are I.T.I. Trained from Recognised Govt., of India/Course completed Act, Apprentices in the Specified Electrical/Mechanical Trades can apply through proper channel;
(2) Casual Labours or Ex-casual labour who are I.T.I. Trained from recognized Govt. Institute/Course completed Act Apprentice of S.E.Rly. establishment in the specific trades can apply through proper channel.
(3) Course completed Act Apprentices in specified ElecL/Mech. Trades trained S.E. Rly. can apply directly.
(4) I.T.I. Trained Course completed Act Apprentices in the specified Trades from open market sponsored by Employment Exchange.
(5) Act Apprentice in specified elect/Mech. Trade can apply directly.
The applicants states that they were eligible for the posts they applied for and were called for the written test. After passing the written test they were called for viva-voce test, which was to be held on 15.2.1999. As per Notification dated 25.7.1997 it is clear that 240 Nos. of Gr.'D' staff are to be directly recruited from the open market and serving candidates for the specific Trades as per their qualification and experience within the jurisdiction of Adra Division. For General Services the break up was UR-20, SC-6, ST-4 and OBC-10 - 40 vacancies. For Traction Rolling Department (TRD) the break up is UR-100, SC-30, ST-22, OBC-48 = 200 vacancies. Thus total number of posts are 240 out of which J 20 posts are for UR, 36 posts were for SC, 26 posts were for ST and 58 posts were reserved for OBC category. According to percentage of reservation the prescribed quota is for SC-15%, ST-7.57c and OBC-27.5%. Thus against 240 posts the break up of reservation as per prescribed percentage is SC-36, ST-18, OBC-60. Due to addition of 8 Nos. of excess ST candidates, 8 Nos. of UR candidates have been deprived from having called for recruitment in the Group 'D' post. The respondents were going to recruit 46 SC candidates in place of 36 candidates. The respondents are going to recruit 27 Nos. of ST candidates in place of 18 Nos. of candidates. Moreover, the respondents are going to recruit 87 Nos. of OBC candidates in place of 60 Nos. of OBC candidates. Therefore, 10 SC, 9 ST and 27 OBC i.e. total 46 candidates are going to be recruited by the respondents exceeding the quota prescribed for them. The applicants claimed that all these persons indicated themselves to be reserved category candidate as per their qualification and as such they cannot be termed as General candidate as they were given relaxed standard benefits for getting qualification marks. Moreover, all the Scheduled Tribe candidates have been treated as ST candidates which is evident from the record and also ineligible to be called for viva-voce test which is categorically mentioned in the said order for viva-voce test dated 2.1.1999 under the heading of 'A' for ST candidates, Date of viva-voce of 43 ST candidates was fixed on 25.1.1999. Similarly 46 numbers of SC candidates were called for viva-voce test on phasewise on different dates as on 26.1.1999, 30.1.1999 and 1.2.1999 under the heading 'B' SC candidates. In the same way 192 numbers of OBC candidates were called for phasewise on different dates on 2.2.1999, 3.2.1999 and 4.2.1999, 5.2.1999 and 6.2.1999 under the heading of the 'C' OBC candidates. Therefore, there is no possible way to declare the reserved category candidate as General candidates. Those reserved candidates were called for viva-voce test and some of them were recruited from the illegal panel by sending them to medical test. The applicants state that if the recruitment is being processed in such a manner it would be found that that excess number of reserved category candidate would be recruited in violation of reservation roster and in violation of slot system i.e. in violation of the principles laid down in Hon'ble Supreme Court's judgment in R.K Sabharwal's case, Ajit Singh Januja's case and Virpal Singh Chouhan's case and as well as the decision of J.C. Mallick's case. The applicants further state that all the reserve category candidates appeared in the test as Reserve Category candidates and they have been given marks on relax standard as per their caste certificates and their names appeared in the panel under the specific heading of SC, ST and OBC candidates. They did not appear as General Category candidates and therefore they cannot be declared as General candidate by any manner whatsoever. But the panel was prepared exceeding their quota of 15% of SC, 7 and a half percent quota for ST and 27 and a half percent quota for OBC in violation of 7. C. Mallick, R.K, Sabharwal, Ajit Singh Januja and Virpal Singh Chouhan's case and as such the total recruitment process having been initiated in violation of the settled principle of law laid down by the Hon'ble Supreme Court, is liable to be cancelled forthwith.
3. The applicants alleged that as per the Employment Notice the serving Gr.D employees and Ex-casual Labourers and open market candidates and those who are ITI rained or Course completed Act Apprentice pass, only were to be called for and it was never mentioned that those who were holding Polytechnic Diploma such as Diploma in Electrical and Mechanical Engineer etc., would also be called for. Therefore higher technically qualified person were not to be given any preference for recruitment against the posts for specified trades. The applicants further allege that the rules have not been followed and higher qualified candidates i.e. those who have obtained Diploma in Electrical and Mechanical Engineering were called for the said test and ultimately recruited in place of ITI or Course completed Act Apprentices and Trained candidates only as stipulated in the employment notification in deprivation of the claim of the candidates for the said recruitment. However, several candidates who did not possess real certificates had also been called for recruitment for the said post. The applicants state that in the panel dated 26.3.1999 it is mentioned that the names of the candidates have been arranged in order of merit and community wise. It has also been mentioned that appointment of the selected candidates is subject to fulfillment of requisite terms and conditions and passing the prescribed pie-recruitment medical examination in appropriate medical category. However, it has been clarified that the said panel is purely provisional and after passing the viva-voce test on different dates roll Nos. of all the ST candidates have been arranged under the heading of "A" for ST candidates. Not only that the viva-voce tests of all SC candidates were taken separately on a specific date of 25.1.1999. Similarly under the heading of 'B' for SC candidates all the Roll Nos. of the SC candidates have been arranged under the said head of SC candidates and the viva-voce test were held only for the SC candidates. Viva-voce test for all the categories were taken on different dates. From the result of the written test it is proved that the reserved community candidates have been given the benefit of reservations by giving them relaxed standard and treating them exclusively as reserved community candidate and as such they can not be treated and declared as general candidate and their names can not be included in the panel exclusively on merit, but exclusively as reserve community candidate i.e. SC, ST & OBC candidates. Accordingly 42 Nos. of ST candidates were qualified in the written test and as such they were called for the viva-voce test. Similarly 113 Nos. of SC candidates were qualified in the written test by way of relaxed standard. In the same way 192 Nos. of OBC candidates were qualified. Thus none of them qualified in the written test according to their own merit but on relax standard treating them exclusively as reserve community candidate and as such they can not be treated to have been declared on merit and cannot usurp the panel exclusively fixed for General Category. Respondents have declared many reserved community candidates who have been qualified on general merit in violation of the judgments of the Hon'ble Supreme Court and in violation of the reservation rules which ultimately led to 10 posts of SC, 9 posts of ST and 27 posts of OBC in excess which were actually meant for the General Category. Thus 46 Nos. of reserved category candidates have been illegally included in the said panel. The applicants made several representations but since nothing has been done on the part of the respondents. Therefore the applicants have filed this O.A. praying for the aforesaid reliefs.
4. The respondents have filed a written statement disputing and denying the claim of the applicant. The respondents have stated that as per the Railway Board vide its letter dated 28.11/18.12.98 communicated a clear ruling in this matter which runs as follows:
It has been decided that those SCs/STs/OBCs candidates who secured the position on merit without availing the relaxation such as, the age limit, experience, qualification, permitted number of chances in written examination, extending the zone of consideration larger than which is provided for general category and secured equal or more marks with general candidates, will not be treated as reserved candidates and they will be adjusted at non-reserved point.
The respondents have further stated that the break up of 240 posts which are to be filled up in General Category services were as follows:
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General TRD Total
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UR 20 100 120
SC 06 30 36
ST 04 22 26
OBC 10 48 58
---- ---- ----
40 200 240
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In response to the aforesaid Employment Notice dated 25.07.1997 applications were received. After evaluation 3 times of the numbers of vacancies persons also were found eligible to appear at the viva-voce test and as per instructions contained in CPO/S.E. Railway's letter dated 24.8.1998 were called. In all 733 candidates were called to appear at the viva-voce test with excess of 13 candidates who secured equal marks. Out of 733 candidates 694 candidates appeared in the viva-voce test and 39 candidates remained absent. After completion of viva-voce test, written and viva-voce marks were added and a final list was prepared. A proposal was submitted to the Competent Authority i.e. the Divisional Railway Manager for approval of the panel. On the proposed panel, there was an indication of SC/ST/OBC and UR as per Rule contained in Railway Board's letters dated 28.11/18.12.1998 and 6.1.1999 (Annexures 'R' and R/1 respectively). In the final list of successful candidates, SC, ST and OBC candidates who secured position in the panel on merit without availing any relaxation admissible to those categories, were not treated as reserved candidates and they were not adjusted against the reserved points as per directives of the Railway Board vide Annexure 'R'. Subsequently after publication of the result, offer of appointments were issued to the candidates who were empanelled. The candidates on receipt of the same reported in their place of work as per the posting orders. Moreover, 6 other candidates on found medically fit, have been pin pointed for posting at various places. Again offer of appointment have been issued to 120 candidates till 12.04.1999. Other 34 candidates have so far reported for medical test. As per interim order passed by the Hon'ble Tribunal in this O.A., further recruitment was kept in abeyance upto 28.4.1999. The respondents have, therefore, prayed that they have complied with the formalities as required under the rules and prayed for dismissal of the O.A. The respondents have annexed the derails of the marks obtained by the candidates in their reply. In Para 17 of their reply the respondents have stated that as per Railway Board's order as well as the judgment of the Hon'ble Supreme Court in reservation matter, there is no bar for the reserved candidates for being considered as UR candidates who secured the position on merit without availing the relaxation. In the instant case, some of the reserved candidates secured the position on merit without availing the relaxation. Hence, they were treated as UR candidates. The Xerox copies of panel showing the position of the reserved candidates as well as the unreserved candidates have been annexed and marked as Annexure R/4 to the reply.
5. We have heard both the parties and have gone through the record. The object of reservation has been discussed in the case of R.K. Sahharwal and Ors. v. State of Punjab and Ors. 1995 (3) SLJ 227 (SC) : AIR 1995 SC 371. It has been held by the Apex Court in the said judgment that:
(1) The object of reservation is to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that for working out the percentage of reservation the promotees/appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the general category posts or against the reserve posts are to be counted. In other words if more than 14% of the Schedules Castes candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservation in the said cadre having been achieved the Government instructions providing reservations would become imperative.
(2) Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the Roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the categoryreserve or generaldue to retirement etc. of whose member the post fell vacant.
The matter was further clarified in the case of Ajit Singh Januja v. State of Punjab , wherein it has been held as under:
A. Service LawPromotionReservationNext promotionAccelerated promotion through reservation or roster system will not grant such promotecs seniority over general category promotees for next promotion in the general category postThey can again gain advantage only against the reserved posts in the higher gradeSC/ST/BC candidates, on account of reservation in promotional post and applicability of roster system, promoted earlier and consequently general category candidates, although senior to them in the lower grade, promoted later in their own turnSuch reserved category promotees, held, not entitled to be considered for promotion to general category posts in still higher grade of service merely because of their accelerated promotion in the lower promotional postBy accelerated promotion they did not supersede their seniors in the general category who were promoted subsequentlyConstitution of India, Articles 14,16 and 3B5.
B. Constitution of IndiaArticles 16(4) & (1), 14 and 335ReservationReverse discrimination, prevention ofMerit criterion cannot be given a go by-V Balance has to be maintained vis-a-vis reservation.
In the case of Jagdish Lal v. State of Haryana , it has been held that:
A. Service LawSenioritySC/ST promotees vis-a-vis general promotees Seniority of SCs/STs, getting promotion earlier than their senior general candidates, not required to be depressed on promotion of general candidatesRecruitment rules providing for fixation of seniority according to "length of continuous service on a post in the service"Junior SC/ST candidates getting promotion on account of reservation earlier than the senior general category candidatesPromotion of reserved candidates was in accordance with the recruitment rulesHeld, SCs/STs to get seniority with reference to the date of their promotionThe general candidates, by relying on Vir Pal Singh Chauhan case and Ajit Singh Januja case. raising a plea that seniority of SC/ST candidates on promotion post slided back when the general candidates were also promoted subsequentlyPlea rejected observing that Chauhan case and Januja case did not depart from principle of fixation of seniority from the date of continuous officiationSC/ST candidates, therefore held, remained senior to general candidates on promotionHaryana Education Department (State Service Group 'B') Rules, 1980, Rule 11Haryana Education Department Class III Service Rules, 1974, Rule 11Fundamental ? Rules, R-14(A).
6. However, in the present case it appears that though a particular number of posts had been advertised in which reservation as per the roster points had been indicated and the numbers were more than the posts reserved, the respondents stated that many of the reserved candidates who competed as general candidate and selected on merit they have been taken against the reserved category post. However, in that case it is necessary to indicate in the selection list that such reserved candidates have been selected on merit as UR candidates. The reservation has been introduced to give protection of the reserved category candidates so that they may occupy their posts both in the initial and promotional posts in their turn within their quota. Quota for SC, ST and OBC candidates are fixed. Nowhere the Government has modified this percentage and therefore the reserved category candidates can aspire selection or promotion to the next higher grade only against that quota. But there is also an exception where a reserved category candidate is selected or promoted to the higher grade on the basis of merit by competing with the General Category candidate in that event he will be treated as General Category candidate. In that even it should be clearly indicated that such posts had been occupied by the reserved category candidate on merit basis and has been treated as UR candidate. In the instant case though the respondents have mentioned that the excess number of reserved category candidates had been selected on the basis of merit but such stipulations have not been included in the panel. This has to be done accordingly. Moreover, it is the settled law that reservation cannot exceed 50% of the strength of a cadre and this aspect should also be kept in view. This Tribunal in C.A. 1289/2002 decided on 29.9.2003 Subrata Sarkar v. Union of India and Ors. held as under:
15. In view of the above position, we are of the opinion that the respondents have acted wrongly by calling reserved category candidates to the suitability test beyond their quota when admittedly they cannot be treated as general category candidates as they did not come on promotion to the feeder grade on their own merit. We, however, do not make any comment about the selection of Sri Banra as he is not a party before us.
16. For the reasons stated above, we dispose of this application with a direction to the respondents to adhere to the 50% limit of reservation as per law and fill up the vacant post of OS Gr.I as per rules subject to the interim order granted by the Hon'ble Supreme Court referred to above. No costs.
In the case of E.A. Sathyanesan v. V.K. Agnihotri 2004 AIR SCW 4247, decided on 18.12.2003 the Hon'ble Apex Court referred to a Full Bench decision of Punjab and Haryana High Court in the case of Jaswant Singh v. Secy, to Govt. of Punjab 1990 Lab IC 559, and observed that in Ajit Sigh Januja's case this decision was considered and it was held as follows:
According to us, the Full Bench was not justified in saying in the case of Jaswant Singh v. Secy, to Govt. of Punjab that non-consideration of Scheduled Caste candidates against general category posts on the basis of their prior promotion will be hit by Articles 14, 15 and 16 of the Constitution. That view shall be deemed to be against the pronouncement of this Court by the nine-Judges Bench in the case of Indra Sawhney as well as the view expressed by the Constitution Bench in the case of R.K. Sabharwal. Accordingly, the appeals are allowed and the part of the judgment of the Full Bench in the case of Jaswant Singh v. Secy, to Govt. of Punjab is reserved.
7. Therefore, question of consideration of reserve category candidates against general category posts was already addressed by the Apex Court and it was held that the view was against the pronouncement of the Apex Court in Indra Sawhney's case AIR 1993 SC 477. We may now refer to the Railway Board's circular dated 21.11.2002 which was issued after the interim order was granted by the Apex Court on 11.11.2002 in the cases challenging the 85th Constitution Amendment by All India Equality Forum (since pending). The Apex Court neither stayed the Constitutional amendment nor the earlier law declared by it in the aforesaid decisions quoted above. However, it only clarified that the interim order will apply to the number of vacancies available in a cadre to give effect to the promotional policy. The Railway Board's letter dated 7.8.2002 which was issued on the basis of the DOPT's O.M. dated 11.7.2002 inter alia states that even when an unreserved vacancy arises in a cadre and if there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected he will be appointed to the post and will be adjusted against the unreserved vacancy. DOP &T vide its recent clarification dated 31.1.2005 clarified that the O.M. dated 11.7.2002 will not be applicable in case of promotions made on non-selection basis.
8. In view of the above discussion, we dispose of the O.A. with the direction to the respondents that the appointments should be made as per the reservation policy laid down by the rules discussed above. They should adhere to the 50% limit and fill up the vacancies as per law and in view of the judgment of the Hon'ble Apex Court in R.K. Sabharwal's case. In case any of the reserved candidate has been selected on merit against the UR post that should also be indicated in the panel. So far as the ineligible candidates are concerned, as referred to in the O.A. their names should be deleted. Regarding the selection of persons, who are better qualified than the minimum qualifications required, this plea is not tenable as persons better qualified cannot be denied the opportunity of appearing in the selection process.
9. With these observations, the O.A. is disposed of. No order as to costs.