Central Administrative Tribunal - Ernakulam
Basaveswaran K vs Shri Ashok K. Agarwal on 19 November, 2015
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Contempt Petition No. 180/00055/2015
in
Original Application No. 180/01121/2014
Thursday, this the 19th day of November, 2015
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1. Basaveswaran K., aged 38 years,
S/o. V. Krishnamani, Senior Assistant Loco Pilot,
Office of the Senior Section Engineer,
Palakkad Division, Southern Railway,
Olavakkode, Palakkad-2, Residing at : 7/65,
R.V.C. Road, Vallanghy, Nenmara Post,
Palakkad District.
2. T.A. Anil Kumar, aged 38 years, S/o. Achuthan,
Senior Assistant Loco Pilot, Office of the Chief
Crew Controller, Southern Railway, Shornur,
Residing at : Thalakkottu Kunnath House,
South Panamanna, Ottappalam,
Palakkad - 679 501. .... Petitioners
(By Advocate : Mr. Elvin Peter P.J.)
Versus
1. Shri Ashok K. Agarwal,
General Manager, Southern Railway,
Chennai - 600 003.
2. Shri Swaminathan, Chief Personnel Manager,
Southern Railway, Chennai - 600 003. . . . . Respondents
(By Advocates : Mrs. Sumathi Dandapani, Sr.
Ms. K. Girija)
This petition having been heard on 13.11.2015, the Tribunal on
19.11.2015 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member :
This Contempt Petition is filed by the applicants in OA No. 180/1121/2014. That OA was filed seeking the following reliefs:
'a) To call for the records leading to Annexure A-9, A-10, A-11, A-12, A-13 and A-15 orders and set aside the same;
b) To declare that the reservation in the matter of appointment and promotion and further grant of such consequential seniority on the basis of such accelerated promotion shall not be granted by respondents 1 and 2 in the Railway service before collecting the quantifiable data showing the backwardness of the class in whose favour reservation is sought to be given and inadequacy of representation of that class in the Railway Service;
c) To issue a direction, appropriate order or injunction, restraining respondents 1, 3, 4 and 5 from making any promotion in the Railway service by applying the principles of reservation under Article 16(4-A) and 16(4-B) in favour of the members belonging to SC/ST communities and other backward classes.
d) Award the cost of these proceedings to the applicants; And
e) Grant such other and further reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.'
2. In that case an interim order was passed by this Tribunal on 9.1.2015, the relevant portion of which reads as follows:
'We are of the view that an interim order has to be issued directing the respondents to scrupulously follow the dictum of law as laid down by the Apex court in M. Nagaraj v. Union of India & Ors. - (2006) 8 SCC 212 before making promotions as per the impugned orders. We do so.'
3. The petitioners/applicants now contend that the official respondents have flouted the direction of this Tribunal by effecting promotion against the directions issued by the Hon'ble Supreme Court in M. Nagaraj v. Union of India & Ors. - (2006) 8 SCC 212. Paragraph 123 of that judgment is referred to by the learned counsel for the petitioners which reads:
'123. However, in this case, as stated above, the main issue concerns the 'extent of reservation'. In this regard the State concerned 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 SCs/STs in matters 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 with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have 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.'
4. The petitioners contend that the official respondents (hereinafter referred to as the respondents) have not collected quantifiable data regarding the backwardness of the members belonging to the Scheduled Caste, Scheduled Tribe and Other Backward Classes as well as their inadequacy of representation in the Railway service. Thus, according to the petitioners the respondents, disregarding the interim order passed by this Tribunal, granted accelerated promotion to one Shri Rajendra Kumar Meena as Loco Pilot (Shunting). Annexure A17 is that order. It is contended by the petitioners that Shri Rajendra Kumar Meena mentioned above is far junior to the petitioners.
5. In the counter affidavit filed by the respondents it is contended that the idea of the petitioners is to restrain the official respondents from making any promotions applying the principles of reservation. The respondents would contend that if reservation in promotion could be opted to be done it could be extended only to those classes which are identified by the respective State Government as being entitled for the same on the basis of quantifiable data regarding backwardness and inadequacy of representation in public employment. To decide while filling up of vacancies either by direct recruitment or by promotion, the process of collecting quantifiable data of the representation of occupied reserved post used to be assessed and reservation is provided to the required level only after collecting the quantifiable data showing inadequacy of representation of the reserved community employees in the prescribed percentage. It is further contended that as held by the Hon'ble Supreme Court reserved community candidates recruited with general standard and posted against 'unreserved' point is not to be counted against reserved point. The reserved community employees recruited/selected with general standard 'accounted against unreserved post is not being counted against reserved point'.
6. Learned senior counsel for the respondents would submit that reservation in promotion is resorted to only after ascertaining the adequacy of representation of the reserved community personnel in prescribed percentage in the Railway service and at no point of time the ceiling limit of 50% has been exceeded. It is further argued that the reservation is being provided only after ascertaining the data of adequacy of representation in SC/ST through the post based reservation rosters maintained for the purpose for each category grade wise.
7. In the mean while one Mr. B. Manoj Kumar has filed an application to get himself impleaded in the OA since his right is being affected by the interim order obtained by the petitioners herein. He has produced the seniority list to show that he is the 2nd among the senior most Loco Pilots (Shunting) awaiting promotion as Loco Pilot (Goods). It is stated that there are a number of vacancies in the cadre of Loco Pilot (Goods) also. It is pointed out that the petitioners who are the applicants in the OA are working as Senior Assistant Loco Pilots and not Loco Pilots. Senior Assistant Loco Pilots is the post lower than the one held by Mr. B. Manoj Kumar in the pay band of 9300-34,800/- plus Grade Pay of Rs. 4200/- who filed the miscellaneous application for getting himself impleaded. Annexure MA-1 produced by him shows that he is No. 2 in the seniority list. In that lists itself there are 105 persons to be promoted. Applicants 1 & 2 in the OA (petitioners 1 & 2 in the contempt petition) appear at serial No. 45 and 64 respectively in the seniority list of Senior Assistant Loco Pilots in the scale of Rs. 5200-20200/- with a Grade Pay of Rs. 2400/-. Learned counsel appearing for the miscellaneous applicant would submit the petitioners/applicants in the OA are no where in the picture and their sole idea is to stall the entire promotion which would cause incalculable and irreversible harm to persons in the seniority list. It is also pointed out that the interim order passed by this Tribunal does not restrain promotion, but it was only stated that the direction of the Hon'ble Supreme Court in M. Nagaraj should be scrupulously followed by making promotions. The respondents have stated that they have not violated the directions issued by the Hon'ble Supreme Court and that the promotion is resorted to only after ascertaining the adequacy of representation of the reserved community personnel.
8. The learned senior counsel appearing for the respondents would also submit that in fact the very maintainability of the OA is under challenge since the applicants in a way wanted to make it as a public interest litigation which this Tribunal is not entitled to entertain. That submission is made in view of the fact that the applicants are not at all in the list of seniority where from miscellaneous applicant Mr. B. Manoj Kumar and others are to be promoted immediately. The actual grievance of the applicants so far as their claim is concerned is not stated in the OA, the learned senior counsel for the respondents pointed out.
9. In the light of the statement and affidavit filed by the respondents and as there is nothing to show that they have violated the interim order or the dictum laid down by the Hon'ble Supreme Court in M. Nagaraj's case, we are not inclined to hold that the respondents have committed any act of contempt so as to issue further directions in the matter. Hence, this contempt petition is dismissed. Notice discharged. However, it is made clear that the promotions effected during the pendency of this OA will certainly be subject to the result of the OA.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA