Central Administrative Tribunal - Ernakulam
M.A. Varghese vs Union Of India Represented By on 9 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 351 of 2012
Tuesday, this the 09th day of October, 2012
CORAM:
HON'BLE MR. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
M.A. Varghese,
S/o. M.V. Alias,
Chief Travelling Ticket Inspector (CTTI),
Grade-1, Southern Railway,
Trivandrum Division, Trivandrum,
Residing at Marattu House,
Alathuchira P.O., Trivandrum District ... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. Union of India represented by
The Secretary to the Government of India,
Ministry of Railways (Railway Board),
Rail Bhavan, New Delhi - 110 001.
2. The General Manager,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai - 600 003
3. The Chief Personnel Officer,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai - 600 003
4. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Thiruvananthapuram - 695 014 ... Respondents.
(By Advocate Mr. Sumathi Dandapani (Sr.) with Mr. V.V. Joshy)
This application having been heard on 20.09.12, the Tribunal on 09.10.12
delivered the following :
O R D E R
HON'BLE MR. K GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant is a Chief Travelling Ticket Inspector (CTTI) in PB-2 with Grade Pay of Rs. 4600/- at the Trivandrum Railway Station of the Southern Railway. He commenced service as Ticket Collector on 18.08.1972. For Group-B selection (70% quota), Group-C employees working in PB-2 with GP of Rs. 4200/- and above with 3 years non-fortuitous service in the grade are eligible. An integrated seniority list of all eligible candidates belonging to the different seniority units forming the feeder cadre is to be published division wise for promotion to Group-B service of Commercial Department of Southern Railway. Annexure A-2 notification dated 15.12.2010 with an integrated list of eligible staff coming within the zone of consideration and a standby list for selection through a written test and viva voce test was for filling up of 06 vacancies (UR-05, SC-01 and ST-Nil) of Assistant Commercial Manager (ACM) against 70% quota in the Commercial Department. The applicant had challenged the same before this Tribunal in O.A. No. 51/2011 which became infructuous as none of the 24 candidates could obtain the qualifying marks in the written examination. 60 employees, all SC/ST employees, except 05 belonging to the general category, were alerted for promotion to 08 vacancies (UR-06, SC-01, ST-01) in the cadre of ACM (Group-B) vide notification dated 25.01.2012 at Annexure A-1. Challenging the Annexure A-1 notification , the applicant has filed this O.A. for the following reliefs:
(i) Call for the records leading to the issue of Annexure A1 notification No. P(G)532/11/ACM/70%(Regular) dated 25.01.2012 and quash the same;
(ii)Declare that Annexure A-14 Railway Board Order bearing RBE No. 33/02 dated 08.03.2002 is arbitrary, discriminatory and unconstitutional and quash the same;
(iii)Direct the respondents - Railway Administration to prepare and circulate an integrated seniority list of all the eligible employees of the Commercial Department, as done in Annexures A6 and A7 and that too after complying with the principles in Annexure A-10 at every step and circulate it among the employees for objections if any, and finalise the seniority list before conducting selection for promotion to the post of Assistant Commercial Manager in Group-B Service in the Commercial Department;
(iv)Direct the respondents to consider the applicant also for promotion to the post of Assistant Commercial Manager against the vacancies notified in Annexure A1 and direct further to grant the consequential benefits thereof;
(v)Award costs of and incidental to this application;
(vi)Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
2. The applicant submitted that when different streams of employees from different categories and units merge together for selection for promotion, an integrated seniority list of all the categories of staff eligible to compete would inevitably be prepared first. From that seniority list only, the zone of consideration could be determined. In the absence of an integrated seniority list of all the eligible staff of the different categories of employees, viz. Commercial Clerks, Ticket Checking Staff, ECRC, Office Clerk of the Commercial Department finalised after calling for objections, the purported action of the respondents for selection to the post of ACM as per Annexure A-1 notification is illegal and unsustainable. The list of employees enclosed in Annexure A-1 is not an integrated seniority list, but only a list of persons from the seniority lists which were erroneously prepared against various judgements of the Hon'ble Supreme Court in Union of India vs. Virpal Singh Chauhan and Ors. (1995 (6) SCC 684), Ajit Singh Januja and Ors. vs. State of Punjab and Others (1996 (2) SCC 715), Ajit Singh and Others (II) vs. State of Punjab and Others (1999 (7) SCC 209), Ramprasad and Others vs. D.K. Vijay and Ors. (1999 (7) SCC 251 and Suraj Bhan Meena and Another vs. State of Rajasthan and Others (2011 (1) SCC (L&S) 01) and the order of this Tribunal in O.A.No. 18/2001 (K.M. Geevarghese and Another vs. Union of India and Others). Not a single person from the general category is included in the main list. Article 16 (4A) of the Constitution is only a provision enabling the State to make any provision for reservation in the matter of promotion with or without consequential seniority to any class or vacancies in services under the State. No reservation can be made for SC/ST in the matter of promotion without collecting the quantifiable data showing the backwardness and inadequacy of representation in the Railway service. Further, compliance with the provision of Article 335 which stipulates the requirement of maintaining efficiency in administration is to be made. The Railway has not so far done this exercise. Annexure A-1 notification and Annexure A-14 Railway Board order are issued without the aforesaid pre-condition as laid down under Article 16(4A) and 16 (4B) of the Constitution of India in view of the decisions in M. Nagraj and Others vs. Union of India and Others, (2006) 8 SCC 212, and in Suraj Bhan Meena and Another vs. State of Rajasthan and Others (supra) and in the order dated 02.12.2010 in O.A. No. 2211/2008, All India Equality Form and Others vs. Union of India and Others, of the Principal Bench of the CAT. Those who are included in Annexure A-1 are the persons who were already included in Annexure A-2 and found unqualified as evident by Annexure A-4. They have no right to be considered again in the very same vacancies on the very same year. The failure on the part of the respondents to prepare and finalise the seniority/eligibility list according to the principles contained in para 319(A) of Annexure A-10 Railway Board order read with Annexure A-11 before initiating the process of selection is arbitrary and discriminatory. Even if seniority is given to the SC/ST candidates, it cannot be considered for promotion against the general category vacancies. Shri R. Hariharan who is included in the standby list was appointed in the entry grade 4 years later than the applicant.
3. The respondents in their reply statement submitted that there is no connection between the cadre seniority maintained in the division and the inter se seniority. The integrated seniority is not a regular seniority. It is made for the purpose of selection from the available and eligible employees in the relevant cadres of Commercial Department. The lists of eligible employees are maintained at all divisions. An inter se seniority list pertaining to the division is forwarded for further amalgamation at the Headquarter to arrive at the required integrated seniority list comprising of the cadres of all divisions to determine the zone of consideration for selection as per para 203.4 of IREM Vol.1. The Railway Board order bearing No. RBE 33/2002 dated 08.03.2002 is a policy matter. The policy decision is based on the constitutional amendment to negate the effect of para 319(A) of the IREM and to grant consequential seniority to the SC/ST employees on their promotion by virtue of rule of reservation. Seniority based on the date of entry into the relevant grade is the criterion for determining the zone of consideration. The date of entry of the applicant into the grade of RS. 6500-10000 (pre-revised) is 01.03.1993 whereas that of Shri R. Hariharan is 07.09.1990. Preparing an integrated seniority list of all the eligible candidates belonging to the different seniority units forming the feeder cadre for promotion is not necessary and relevant to the issue in question as the applicant is not senior enough to be called for selection in terms of para 203.4 and 203.5 of the IREM. The names listed in the main and standby lists are the integrated seniority list as that of Annexures A-6 and A-7 to the extent required. The applicant has never challenged the original seniority list of Ticket checking cadre all these years nor against the promotion of Shri R. Hariharan ahead of him at any point of time. All Railway employees irrespective of their community, on their promotion from one grade to another will have consequential seniority from the date of entry into the promoted grade. The Railway Board based on the 85th Constitutional Amendment Act, 2001, vide letter dated 08.03.2002 had restored the old seniority rules. There is no excess representation of reserved candidates in the cadre of Ticket Checking Staff prior to 10.02.1995 also as per the report submitted by a High Level Committee. Those SC/ST employees promoted on their own merit and seniority against unreserved points and not owing to reservation shall not be treated as roster point promotees. The judgement of Hon'ble Supreme Court in Suraj Bhan Meena's case is not applicable to the present case as it pertains to the service rules of Rajasthan Government and not the Central Government policies. The order dated 02.12.2010 in O.A. No. 2211/2008 is challenged before the Hon'ble High Court of Delhi in W.P.(C) Nos. 1974/2011 and 2280/2011 and the same is pending for adjudication. As the Hon'ble Supreme Court has declared the validity of 77th and 85th amendments to the Constitution of India, the Railway Board circular dated 08.03.2002 was issued reverting the provisions after issuance of the circular dated 28.021997. The applicant had neither agitated against the judgement of Hon'ble Supreme Court in Nagraj's case nor the 77th and 85th amendments nor impleaded affected parties. The conditions stipulated in the case of Ajit Singh-II have already been complied with and no excess promotion has been made since 1984 over and above the prescribed percentage. Therefore, there is no necessity to revise the seniority as per Railway Board letter dated 28.02.1997. As long as the Constitution which governs the assignment of seniority has not been challenged, the seniority which was assigned on implementation of such constitutional amendments cannot be questioned.
4. In the rejoinder statement filed by the applicant, it was submitted that the contention of the respondents that the seniority of all the eligible employees are not required to be published as has been done in all other departments, is not substantiated by indicating any rule or order. The question whether the applicant is senior or not can be considered only if the respondents publish the integrated seniority of all the eligible candidates. Without publishing the same, the respondents cannot say that the applicant is not senior enough to be considered for promotion. The very list at Annexure A-1 would show that there has been an exorbitantly excess representation of the members of the SC and ST. The order dated 08.03.2002, being the policy of the Railway Board, is under challenge. Therefore, the necessity to implead any private person does not arise.
5. In the reply to the rejoinder, the respondents submitted that the applicant being junior to those alerted in the final stage, the integrated list of entire lot running to more than 500 employees is not required for the present selection as there are only 08 posts to be filled up. The present list as per Annexure R- 1 dated 10.07.2012 includes 3 URs besides SC/ST employees as also 15 new employees. They are not the same group of persons except (9), who are seniors as can be seen from Annexure R-4 selection notification dated 10.02.2011. In terms of the instructions contained in Annexure R-3 RBE No. 46/2010, the inter se seniority to meet the requirement for selection on hand has been prepared. The Annexures A-6 and A-7 issued for Engineering and Mechanical departments' Group-B selection were huge for the reason that there were a large number of vacancies. They were not prepared as per the instructions contained in Annexure A-10, which is no more available as it has been withdrawn. According to Article 141 of the Constitution of India, the status of the judgement of the Hon'ble Supreme Court is "declared law" of the land. The 85th amendment was upheld by the Hon'ble Supreme Court in Nagraj's case. It, being the declared law, is binding on all the lower Courts in the Country. Without challenging the implementation of the 85th amendment or challenging the judgement in Nagraj's case, the applicant has no right to challenge the seniority assignment as per the existing rules and provisions confirmed by the 85th amendment and approved by the Hon'ble Supreme Court in Nagaraj's case. As per RBE No. 33/2002 dated 08.03.2002, if any unreserved employee is promoted based on the instructions of 319(A) between 10.02.1995 and 17.06.1995, his promotion is personal, but seniority cannot be given. Whereas, the promotions given to the unreserved category of employees against the reserved points either before 10.02.1995 or after 17.06.1995 are protected. Therefore, the seniority issues were settled in Nagaraj's case. There is no provision to delete the employees who have failed in the earlier selections. Even if they are excluded, the applicant will not figure in the field of eligibility for the present selection as the last person alerted for the written examination entered into the Grade Pay of Rs. 4600/- on 01.05.1992. The prayer of the applicant is to prepare the seniority list based on the catch up rule explained in Virpal Singh Chauhan's case. The 85th amendment reverses the decisions of the Hon'ble Supreme Court in the cases of Virpal Singh Chauhan, Ajit Singh-I and Ajit Singh-II. There is no catch up rule in determining seniority followed in the India Railways after the 85th amendment as confirmed by Hon'ble Supreme Court in Nagraj's case.
6. We have heard Mr. T.C. Govindaswamy (Sr.), learned counsel for the applicant and Mrs. Sumathi Dandapani (Sr.) with Mr. V.V. Joshi, learned counsel for the respondents and perused the records.
7. The issues involved in this O.A are (i) preparation of integrated seniority list for the purpose of promotion of Group-C employees to the post of ACM (Group-B) and (ii) the tenability of accelerated seniority to the SC/ST employees promoted on roster point. In regard to the first issue, for the sake of convenience, paras 203 (1) to (6) of IREM Vol.1 are extracted as under:
"203.1. Conditions of eligibility.- For the selection, all Group 'C' employees working on a regular basis in grade the minimum of which is Rs. 5000/- in the revised scale and in the higher Group 'C' grades and who have rendered not less than 3 years of non- fortuitous service in the grade are eligible. There will be no distinction between permanent and temporary employees.
( Railway Board's letter No. E(GP)/2005/2/69 dated 5.1.06] 203.2. In case a junior employee is considered for selection by virtue of his satisfying the relevant minimum service conditions all persons senior to him shall be held to be eligible, notwithstanding the position that they do not fulfill the requisite minimum service conditions.
203.4. Zone of consideration.- The number of employees to be called for the selection will be in accordance with the sliding scale in the order of seniority as shown below -
1. vacancies - 5 employees.
2. vacancies - 8 employees.
3. vacancies - 10 employees.
4. vacancies and above employees equal to three times the number of vacancies.
203.5. Since employees from the different streams will be eligible to appear for the selection, their integrated seniority for purposes of the selection should be determined on the basis of total length of non- fortuitous service rendered in grade Rs. 6500-10500 (R.S.) and above. In other words the date of appointment to the grade Rs. 6500-10500 (R.S.) on a non fortuitous basis will be the criterion.
203.6. If adequate number of SCs/STs are not available within the field so determined for consideration against reserved vacancies the field should be extended to five times the number of vacancies and only those SCs/STs coming in the extended field (and not the others) should be considered. "
Further, para 2(i) of RBE No. 46/10 dated 29.03.2010 at Annexure R-3 reads as under:
"2. Now, consequent upon implementation of the pay scales recommended by the VI Pay Commission, the matter regarding eligibility conditions for appearing in the Selection/LDCE for promotion to Group 'B' posts in the major departments having 'Organised Services' (except Accounts Department), has been considered by the Board and it has been decided that :
(i) For Group 'B' selections (70% quota), Group 'C' employees working in Pay Band PB-2 (Rs.9300-34,800) with Grade Pay of Rs.4200 and above with 3 years of non-fortuitous service in the grade (including non-fortuitous service rendered in the corresponding pre-revised grades) will be eligible."
8. From the above, it is clear that an integrated seniority list based on the total length of non-fortuitous service rendered in GP Rs. 4600/- or Rs. 4200/-, as the case may be, is to be prepared. The inter se seniority list of eligible employees at the divisional level is forwarded for further amalgamation at the Headquarters to get the required integrated seniority list comprising of the cadres of all the divisions from which the zone of consideration is drawn up, as per the say of the respondents. It appears that the seniority list of all the eligible employees of the Civil and Mechanical departments have been published which are produced at Annexures A-6 and A-7. If Annexures A-6 and A-7 are long , just because there are a good number of vacancies to be filled up, then it is not substantiated by the respondents by stating the number of vacancies and the number of eligible employees considered for promotion. The contention of the respondents is that an integrated seniority list of entire lot running to more than 500 employees is not required for the present selection as there are only 08 posts to be filled up. According to them, the inter se seniority list to meet the requirement of selection on hand in terms of the instructions contained in Annexure R-3 and para 203.5 of IREM Vol.1. has been prepared. Those instructions speak of integrated seniority list and the criterion for determining the inter se seniority. There is nothing in them to support the stand of the respondents that the integrated seniority list should be limited to meet the requirement of selection on hand. A truncated integrated seniority list which appears just in time for producing the main list and reserve list and disappears soon after does not lend itself to be scrutinized and challenged by those eligible employees who are not included in it. Therefore, we are inclined to agree in the interest of transparency and equity with the contention of the applicant that an integrated seniority list of all categories of staff eligible to compete should be prepared first and then the zone of consideration should be drawn up from it. If an integrated seniority list is long, it is only because there are a large number of eligible employees . Length of the list is not a justification to curtail it arbitrarily. Once made, it would require only periodic revision. In the absence of specific rule to limit the size, as in the case of zone of consideration, the respondents are bound to prepare an integrated seniority list of all eligible employees for the purpose of promotion to Group-B . The assessment of seniority as per para 320 and 203.5 of IREM Vol.1 provision does not come in the way of preparing an integrated seniority list as above. When the Civil and Mechanical departments have published integrated seniority lists running into 500 or 700 employees, there is no reason why the Commercial department could not have prepared an integrity seniority list of all eligible employees. The respondents have not indicated any rule or order which treated the Commercial department of Souther Railway differently from other departments in the matter of preparing integrated seniority list for the purpose of promotion to Group-B.
9. The integrated seniority list at the Headquarter level is directly related to the seniority list maintained at the divisional level. If the seniority list in the different units at the different levels are not prepared correctly, the integrated seniority at the divisional level cannot be correct. Herein, the question of accelerated promotion to the SC/ST employees, who are promoted as per the roster point arises for consideration. The applicant contended that Annexure A-1 is not an integrated seniority list but only a list of persons from the seniority lists which were erroneously prepared against a catena of judgements of Hon'ble Supreme Court. The catch up rule explained in Virpal Singh Chauhan's judgement is relied on by the applicant. The respondents averred that the catch up rule is not followed in Indian Railways after 85th amendment of the Constitution of India, which was confirmed by the Hon'ble Supreme Court in Nagraj's case. The Apex Court held in M. Nagraj's case (supra) while upholding the constitutional validity by 77th and 85th amendments that in case, rules in respect of reservation in promotion with consequential seniority are to be framed, such rules should satisfy the tests of quantifiable data as to backwardness and inadequacy of representation in public employment and the overall administrative efficiency. Unless such an exercise is undertaken, the rules relating to reservation in promotion with consequential seniority cannot be implemented. Articles 16(4A) and 16(4B) are enabling provisions calling for satisfaction of the conditions precedent for implementation. This position has been confirmed by the Hon'ble Supreme Court in the judgement dated 27.04.2012 in Civil Appeal No. 2608/2011 (U.P. Power Corporation Ltd. vs. Rajesh Kumar & Ors.). The relevant part of the said judgement is extracted as under :
"36. To appreciate the rival submissions raised at the bar and the core controversy, it is absolutely seemly to understand what has been held in M. Nagraj (supra) by the Constitution Bench. While assailing the validity of Article 16(4A) of the Constitution which provides for reservation in promotion with a consequential seniority, it was contended that equity in the context of Article 16 (1) connotes accelerated promotion so as not to include consequential seniority and as consequential seniority has been attached to the accelerated promotion, the constitutional amendment is violative of Article 14 read with Article 16(1) of the Constitution. Various examples were cited about the disastrous affects that would be ushered in, in view of the amendment. After noting all the contentions, the Constitution Bench addressed to the concept of reservation in the context of Article 16(4) and further proceeded to deal with equity, justice and merit. In that context, the Bench stated thus: -
"This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16 (4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article16 (4) as well as Article 16 (4A) come in the form of Article 335 of the Constitution."
While dealing with reservation and affirmative action, the Constitution Bench opined thus: -
"48. It is the equality "in fact" which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.
49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual-specific whereas reservation in Article 16(4) and Article 16 (4-A) is enabling. The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16 (4) and 16 (4A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise."
37. The Bench referred to the cases of Indra Sawhney (supra), R.K. Sabharwal (supra), Vir Pal Singh Chauhan (supra), Ajit Singh (I) (supra) and Ajit Singh (II) (supra) and opined that the concept of catch-up rule and consequential seniority are judicially evolved concepts to control the extent in reservation and the creation of this concept is relatable to service jurisprudence. Thereafter, the Constitution Bench referred to the scope of the impugned amendment and the Objects and Reasons and, in paragraph 86, observed thus: -
"Clause (4-A) follows the pattern specified in Clauses (3) and (4) of Article 16. Clause (4-A) of Article 16 emphasizes the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation.
Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, Clause (4-A) will be governed by the two compelling reasons -
"backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further in Ajit Singh (II), this Court has held that apart from "backwardness" and "inadequacy of representation" the State shall also keep in mind "overall efficiency" (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government in providing for reservation in promotion for SCs and STs."
Thereafter, the Bench referred to the 2000 Amendment Act, the Objects and Reasons and the proviso inserted to Article 335 of the Constitution and held thus: -
"98. By the Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the end of Article 335 of the Constitution which reads as under:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."
99. This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this Court in Vinod Kumar which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of Clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4-A)."
In paragraph 102, their Lordships have ruled thus: -
"Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, "backwardness" and "inadequacy of representation'. As stated above, equity, justice and efficiency are variable factors. These factors are context- specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4-A) is derived from Clause (4) of Article 16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution."
After so stating, it was observed that there is no violation of the basic structure of the Constitution and the provisions are enabling provisions. At that juncture, it has been observed as follows: -
"Article 16(4) ;is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16 (4a) and 16 (4B) is that the State is empowered to identify and recognize the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove.
Therefore, there is a basic difference between "equality in law" and "equality in fact" (See Affirmative Action by William Darity). If Articles 16(4-A) and 16(4B) flow from Article 16(4) ; and if Article 16(4) is an enabling provision then Articles 16 (4A) and 16(4B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4A) and 16(4B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of "guided power". We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred." In paragraph 108, the Bench analyzed the concept of application of the doctrine of guided power under Article 335 of the Constitution and, in that context, opined thus: -
"Therefore, the question before us is - whether the State could be empowered to relax qualifying marks or standards for reservation in matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in Article 335 Is not obliterated. Reason is thaT "efficiency" is a variable factor. It is for State concerned to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the scheduled castes and scheduled tribes, and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data."
Thereafter, the Constitution Bench proceeded to deal with the test to judge the validity of the impugned State Acts and opined as follows: -
"110. As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside."
In paragraph 117, the Bench laid down as follows: -
"The extent of reservation has to be decided on facts of each case. The judgment in Indra Sawhney does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/ STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335of the Constitution."
In the conclusion portions, in paragraphs 123 and 124, it has been ruled thus: -
"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 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 with 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 the 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."
38. From the aforesaid decision and the paragraphs we have quoted hereinabove, the following principles can be carved out: -
i) Vesting of the power by an enabling provision may be constitutionally valid and yet `exercise of power' by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.
ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16 (1) which protects the interests of every citizen of the entire society. They should be harmonized because they are restatements of the principle of equality under Article 14.
iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling-limit of 50% is not violated.
Further roster has to be post-specific and not vacancy based.
v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4A). Therefore, Clause (4A) will be governed by the two compelling reasons - "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.
vi) If the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept, then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the duration depending upon the fact-situation.
vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.
viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.
ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.
x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.
(emphasis supplied)
10. Further, in the order dated 02.12.2010 in O.A. No. 2211/2008, the Principal bench of this Tribunal held as under:
"37. We have applied our mind to the pleadings and the contentions raised by the learned counsel representing the applicants on the issues as mentioned above, but are of the view that once, in brevity, it is the case of the applicants that when no compliance of pre-conditions as spelled out in M. Nagaraj's case has been done, reservation in promotion with accelerated seniority shall have to be worked in the way and manner as per the law settled earlier on the issue. If that be so, we need not have to labour on the issues raised by the applicants, as surely, if the position is already settled, the only relevant discussion and adjudication in this case can be and should be confined to non- observance of the pre-conditions for making accelerated promotions as valid. We have already held above that the railways have not worked out or even applied their mind to the pre- conditions as mentioned above before giving effect to the provisions of Article 16(4A), and for that reason, circular dated 29.2.2008 vide which the seniority of SC/ST railway servants promoted by virtue of rule of reservation/roster has to be regulated in terms of instructions contained in Board's letter dated 8.3.2002 and 13.1.2005, has to be quashed. There is a specific prayer to quash instructions dated 8.3.2002 and 13.1.2005 as well, but there would be no need to do so as the same have been discussed in the case of railways itself in the matter of Virpal Singh Chauhan (supra), and commented upon. While setting aside instructions dated 29.2.2008, our directions would be to not to give accelerated seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which alone Article 16 (4A) of the Constitution is to operate, are complied with. No directions in this case can be given as regards seniority of the applicants vis-a-vis those who were appointed with them and have stolen a march over them because of reservation and have obtained accelerated seniority. No such specific prayer has been made either. However, it would be open for the parties to this lis or any one else to seek determination of their proper seniority for which legal proceedings shall have to be resorted to. It would be difficult to order across the board that all those who have obtained the benefit of reservation and have also been accorded accelerated seniority be put below general category candidates who may have been senior to the reserved category employees and became below in seniority on the promoted posts because of conferment of accelerated seniority to the reserved category employees. Surely, for seeking seniority over and above Scheduled Caste and Scheduled Tribe employees, number of things shall have to be gone into, as for instance, as to when was the promotion made and seniority fixed, and whether the cause of general category employees would be within limitation. There can be number of issues that may arise. We have mentioned only one by way of illustration.
38. Present Original Application is disposed of in the manner fully indicated above. In view of the nature of the controversy involved in the case, costs of the litigation are made easy."
(emphasis supplied)
11. In view of the above settled position of law, R.B.E. No. 33/2002 dated 08.03.2002 at Annexure A-14 allowing the SC/ST employees to retain consequential seniority upon their promotion by virtue of rule of reservation with effect from 17.06.1995 has no legs to stand on. The respondents have implemented the enabling provisions of the Constitution without meeting the pre-conditions of ascertaining backwardness, inadequacy and overall administrative efficiency for doing so as per the declared law of the land. The Principal Bench of this Tribunal has already set aside the circular dated 29.02.2008 which reads as under:- "R.B.E.No.29/2008
Subject : Principles for determining the seniority of staff belonging to SC/ST promoted earlier vis-a-vis, General/OBC staff promoted later.
Reference : (i)Board's letter No.E(NG)I-97/SR6/3 (Vol.III), dated 8.3.2002 (Bahri's 33/2002, p-50)
(ii) Board's letter No.E(NG)I-97/SR6/3 (Vol.IV), dated 13.1.2005, (Bahri's 7/2005, p-10).
[No.E(NG)I-97/SR6/3 Vol.IV dated 29.2.2008] The Railways are aware that in pursuance of the Constitution (85th Amendment) Act, 2001, instructions were issued vide this Ministry's letter dated 8.3.2002 quoted above that w.e.f 17.6.1995 SC/ST Railway servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also. These instructions were, however, reiterated vide this Ministry's letter of even number dated 21.11.2002 for implementation subject to final outcome of the Writ Petitions pending before the Hon'ble Supreme Court.
The Railways would also be aware that while disposing of the aforesaid Writ Petitions, the Hon'ble Supreme Court in their order dated 19.10.2006 in the case of M.Nagraj & Ors. Vs. UOI & Ors have, inter alia, upheld the validity of the Constitution (85th Amendment) Act, 2001. So far as other issues discussed in Apex Court's judgment, relevant clarifications have since been issued by DOP&T vide their O.M.No.36036/2/2007-Estt. (Res.) dated 29.3.2007 and circulated vide this Ministry's letter No.97-E (SCT)I/49/25, dated 29.5.2007. Thus, in the light of the Hon'ble Supreme Court's order dated 19.10.2006, the seniority of the SC/ST Railway servants promoted by virtue of rule of reservation/roster shall be regulated in terms of instructions contained in Board's letter dated 8.3.2002 and 13.1.2005 referred to above."
The direction to regulate the seniority of the SC/ST Railway servants promoted by virtue of the rule of reservation in terms of the instructions contained in Board's letters dated 08.03.2002 and 13.01.2005 is quashed by the Principal Bench. Consequently and also in the light of the judgement of the Apex Court in U.P. Power Corporation Ltd. vs. Rajesh Kumar (supra) , the instructions in R.B.E. No. 33/2002 dated 08.03.2002 have become null and void and, therefore,there is no need to quash it. Mere pendency of Writ Petitions (C) before the Hon'ble High Court of Delhi against the order of the Principal Bench of CAT in O.A. No. 2211/2008 does not affect the validity of the order or the onus of the respondents to implement it. Whether the applicant will find a place in the zone of consideration depends on his position in the integrated seniority list. Not being prejudicial to any legal right or claim of any person, the question of non-impleadment of necessary parties does not arise in the instant case.
12. In the result, the respondents are directed to prepare an integrated seniority list of all eligible employees for promotion to Group-B and publish it calling for objections, if any, and finalise it before conducting selection for promotion to the post of Assistant Commercial Manager in Group-B service in the Commercial Department. Annexure A-1 notification dated 25.01.2012 is quashed.
13. The O.A. is allowed as above with no order as to costs.
(Dated, the 09th October, 2012)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.