Central Administrative Tribunal - Madras
M Arunachalam vs M/O Railways on 12 October, 2022
1 OA 297/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.297/2016
Dated Wednesday, the 12th day of October Two Thousand Twenty Two
CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER
&
HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
M.Arunachalam,
Points Man 'A', Tirunelveli R.S.,
Madurai Division,
Southern Railway ...Applicant
By Advocate M/s Ratio Legis
Vs.
1.Union of India,
Rep., by The General Manager,
Southern Railway, Park Town,
Chennai-3
2.The Divisional Personnel Officer,
Madurai Division, Southern Railway,
Madurai.
3.Banvarilal Meena, Goods Guard,
Madurai. ...Respondents
By Advocate Ms.R.Sathyabama (R1 & 2)
2 OA 297/2016
ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"To call for the records related to the impugned letter no.U/P353/OA 1689/13 dated 07.10.2015 issued by the 2 nd respondent and to quash the empanelment of the 3rd respondent against unreserved category vacancies and further to direct the respondents to include the applicant in the empanelment."
2. The brief facts of the case as stated by the applicant are as follows:
The applicant while working as Points Man 'A' participated in the selection process for the post of Goods Guard in the scale of pay of Rs.5200-20200 with Grade Pay of Rs.2800/- against the 60% promotional quota extended to Group D staff for promotion to Group C post. The vacancies were assessed as ST-1, SC-8 & UR-9. In the written test, 35 employees including the applicant were declared to have qualified for further process of selection. However, pursuant to the release of the qualifiers list, the impugned order dated 18.09.2013 came to be passed in which 16 employees were declared to have been recommended to be placed in the panel for promotion. According to the applicant, the select list included one ST category employee claimed to be appointed as Unreserved category. The said inclusion of 1 ST employee is inconsistent with the statutory provisions enshrined in the Indian Railway Establishment Manual as well as not in synchronization with the percentage earmarked for the different categories of Group 'D' employees. Aggrieved by the said action, the applicant has filed OA 1689/2013 before this Tribunal wherein this Tribunal by order dated 03.07.2015 disposed of the said OA on 3 OA 297/2016 similar line with its earlier order dated 20.01.2015 in OA 1630/2014 and directed the official respondents to reexamine the promotion impugned in the said OA and consider the case of the applicant for empanelment to be promoted to the post of Goods Guard. However, the respondents have rejected his request by order dated 07.10.2015 on the ground that the respondents have finalised the selection based on merit in terms of Railway Board Establishment circular (RBE No.113/2009) issued by the Railway Board, based on the judgment of the Hon'ble Supreme Court in M.Ramjayaram Vs. General Manager (1998(1) SC SLJ 536). Hence his claim for empanelment based on written test mark is totally unsustainable.
Challenging the said order, the applicant has filed the present OA
3. After notice the respondents have entered appearance through their counsel and filed their counter and opposed the claim of the applicant on the ground that the action of the respondents in empanelling the candidates to the post of Goods Guard is in accordance with the policy of the Railway Board. They have also stated that reservation has no role to play in the selection of the 3rd respondent to the post of Goods Guard as well as the non-selection of the applicant to the said post. They further submitted that the 3rd respondent was empanelled in the quota of 8 posts earmarked to the category of Train Clerks/Sr.Train Clerks and the applicant who belongs to the Pointsman category for which 9 posts were earmarked cannot challenge the empanelment of the 3rd respondent. Further, though the number of posts earmarked to the group of categories to which the applicant belongs is only 9, the total number of candidates empanelled for promotion to the Goods Guard is 12, i.e., 3 posts in excess to the quota earmarked, due to non-
availability of candidates in the other categories. Further, 5 other candidates belonging to the group of categories to which the applicant belongs have 4 OA 297/2016 secured more marks than the applicant and they were not empanelled in as much as more candidates than the allotted number were empanelled from their ground. Hence the applicant claim to empanel him in the Unreserved vacancy in as much as the post which was rightly allotted to the candidate in terms of policy of the respondent. Hence they prayed for dismissal of the OA.
4. Though notice has been served upon the private respondent, i.e., respondent no.3, he has neither chosen to enter appearance nor file any reply.
5. Heard both the counsels and perused the OA along with relevant records.
6. The facts undisputed are that the applicant was subjected to written examination for promotion as a Goods guard under 60% quota for Group D employees to Group C post. By an order dated 11.09.2018, the applicant was declared to have qualified in the written examination. However, while releasing the empanelment dated 18.09.2013, the respondents have appointed the 3 rd respondent, who is a ST candidate against Unreserved category. The learned counsel for the applicant has referred to and relied upon the order passed by the Principal Bench of this Tribunal in OA 4194/2016 dated 11.01.2022, a case wherein a similar issue has been dealt with. While passing the said order in the matter of promotion the Principal bench has considered the various orders passed by the Hon. Supreme Court as well as various High courts and Tribunals which are extracted as under:-
13. In OA No.3476/2013 and other connected 40 cases, the Tribunal vide Order/Judgment dated 22.1.2018 has recorded its findings in para no.1 thereof, as under:-
"All these batch of OAs are pertaining to the issue of reservations in promotions and hence are being disposed of by way of this common order."
In the said common order/judgment, this Tribunal has considered the law laid down by the Constitutional Bench of the Hon'ble Apex Court in the case of M. Nagaraj (supra), the judgments of the Hon'ble Apex Court in Suresh Chand Gautam vs. State of Uttar Pradesh & Ors., reported in AIR 2016 SC 1321, The State of Tripura & Ors. Vs. Jayanta Chakraborty & Ors. in Civil Appeal Nos.4562-4564 of 2017 & batch, decided 5 OA 297/2016 on 14.11.2017, and Ashok Sadarangani & Anr. Vs. Union of India, reported in (2012) 11 SCC 321, and held in paras 11 and 15, as under:-
"11. Coming to the facts of the individual cases, it is seen that certain OAs were filed questioning the orders of the respondents wherein the rule of reservation was followed in promotions and that certain OAs were filed seeking to restrain the respondents from following the reservations in promotions. Similarly in certain OAs, as an interim measure, the respondents were restrained from proceeding further to give effect to the rule of reservation in promotions and whereas in certain OAs their action in following reservations in promotions was made subject to the result of the OAs. In any event, in view of the above referred categorical declaration of the law by the Hon'ble Apex Court in M. Nagaraj (supra) unless the mandatory exercise of collecting the quantifiable data is conducted, no authority or Government can follow the rule of reservation in promotions. Since admittedly in Railways or in any other respondent department, no such exercise is conducted, their action in following the rule of reservation in promotions is unsustainable.
xxx xxx xxx
15. In the circumstances and for the aforesaid reasons, the respondents are directed to act in terms of M. Nagaraj (supra), i.e. without following the rule of reservation in promotions and to redraw the promotional lists/panels, if already issued, with all consequential benefits, however, without any back wages in the circumstances. This exercise shall be completed within 90 days from the date of receipt of a copy of this order. Accordingly, all the O.As. are disposed of."
14. The judgment dated 25.10.2021 passed in Special Leave Appeal (Civil) No.27300/2019, wherein the aforesaid order/judgment dated 22.10.2018 in OA No.4209/2015 (supra) was challenged before the Hon'ble Supreme Court, reads as under:-
"No Additional documents have been filed by the petitioners. Learned counsel for the petitioners submits that, that exercise has not been based on a quantifiable data and that is the reason the material qua quantifiable data has not been filed before this court, as requested vide order dated 10.02.2020. The aforesaid being the position, as per the law prevalent for the time being, we cannot fault the impugned judgment.
The special leave petition is, accordingly, dismissed."
15. Paras 1, 6 and 7 of the order/judgment dated 18.02.2020 of this Tribunal in Prakash Chandra's case (supra) read as under:-
"In this OA, the applicants challenge an order dated 05.06.2014 through which the promotions were effected to the post of Master Craftsmen (MCM) in the Northern Railway, by applying the rule of reservation in the category of SC/ST candidates."
"6. In the recent past, the Hon'ble Supreme Court in the case of Mukesh & Anr. vs. State of Uttarakhand & Ors., Civil Appeal No. 1226/2020, explained the various principles, governing this very issue.
7. Therefore, we allow this OA and issue the same directions as were issued in OA No. 1128/2011, namely, that
1. The Northern Railway or the Railway administration, in general shall 6 OA 297/2016 take a policy decision indicating the parameters for introduction and implementation of the reservation in promotions, which shall include:
(i) the verification of the representation of the category of Scheduled Castes & Scheduled Tribe employees in the post or cadre for promotion to which, reservation is sought to be effected and the resultant effect of any on the efficiency of the administration;
(ii) the manner in which the concept of creamy layer shall be applied in enforcing such reservation in promotions; and
(iii) the duration up to which the promotion shall be in force.
2. The view of the Association of Scheduled Caste & Scheduled Tribe employees on the one hand and the Association of employees in general on the other hand, shall be taken into account before such parameters are identified.
3. Unless and until a decision at the level of Ministry of Railways & Railway Board is taken as regards the implementation of the reservation in promotions, the same shall not be effected at the lower levels.
4. If such guidelines already exist in respect of any post or cadre, reservations in promotion can be made to such posts or cadre, duly referring to the relevant guidelines and administrative orders.
5. If any promotions have taken place contrary to the law as it exists now, it shall be open to the Railway administration to take corrective steps. Pending such action, the promotions so made shall be treated as provisional, without giving rise to any right to seniority in the promoted post.
6. The entire exercise indicated above shall be completed within a period of six months from the date of receipt of a copy of this order."
16. In Writ Petition (Civil) No.2633/2021, titled Gyan Singh (supra) before the Hon'ble High Court of Delhi, the order/judgment dated 03.02.2021 passed by this Tribunal in OA No.4016/2016 was under challenge, and in paras 3 to 3.2 of the order/judgment dated 26.10.2021 passed by the Hon'ble High Court in the said Writ Petition, read as under:-
"3. The core issue which arises for consideration is: whether the petitioners should get the benefit of consequential seniority on having been promoted to the post of Cameraman Grade-I, having regard to the fact that most of them were promoted to the said post on date(s) earlier to respondent nos. 4 and 5.
3.1. This issue arises in the backdrop of an accepted position that respondent nos. 4 and 5 were appointed to the feeder post [i.e., the post of Cameraman Grade-II] earlier in point of time than the petitioners. 3.2. The Tribunal, via the impugned judgment, has ruled in favour of respondent nos. 4 and 5 by applying the "catch-up rule". Being aggrieved, the petitioners have approached this court and assailed the impugned order of the Tribunal, on various grounds."
The Hon'ble High Court had considered the facts of the case as well as OM dated 21.01.2002 issued by the Department of Personnel & Training. The Hon'ble High Court, after considering the judgments of Hon'ble Supreme Court in Sudhakar 7 OA 297/2016 Babu Rao Nangure (supra), M. Nagaraj (supra), Jarnail Singh (supra) etc., held in paras 13.2(a) and 14 to 15.1, as under:-
"13.2(a) Thus, it is quite clear that respondent nos. 4 and 5 only assailed the impugned seniority list i.e., seniority list dated 01.11.2016. There was no challenge laid to the OM dated 21.01.2002. Had OM dated 21.01.2002 been challenged, the official respondents would have had the opportunity to demonstrate as to, how it was on facts and in law, tenable. Conclusion:-
14. Thus, for the foregoing reasons, we are of the view that, since the impugned order dated 03.02.2021, passed by the Tribunal, is not in line with the judgment of the Supreme Court rendered in the Sudhakar Babu Rao case, it deserves to be set aside.
14.1. It is ordered accordingly.
15. The result would be that the impugned seniority list dated 01.11.2016, in its original form, would get revived. 15.1. Resultantly, the petitioners would be entitled to consequential seniority, as contended by them before the Tribunal."
17. In Anita Rai Saxena (supra), the applicant belonged to Scheduled Caste (SC) community and she was appointed as Junior Hindi Translator in the pay scale of Rs.1400-2300 on direct recruitment basis in the year 1994 and joined AIIMS, New Delhi on 01.10.1994. She was promoted as Senior Hindi Translator in pay scale PB2 + Grade Pay Rs.4600 on 14.01.2015 on her turn and on her own merit, and as per the recruitment rules, the next promotion lies to the post of Hindi Officer in pay scale PB3 + Grade Pay Rs.5400, after completion of three years of service a Senior Hindi Translator. Accordingly, her promotion was due w.e.f. 14.01.2018 and a draft seniority list of Senior Hindi Translator was published on 19.04.2018 vide which objections were called. Since no such objections were received, the said list became final. The applicant stood at serial no.1 in this seniority list. When DPC was held in August, 2018 for the post of Hindi Officer, the applicant was ignored and two of her juniors, both from unreserved category, were considered and promoted vide order dated 29.01.2019, and one post remained vacant. The applicant made her representation and when her grievances were not redressed, the applicant had approached this Tribunal by way of the said OA. Paragraphs 15 to 18 of the order/judgment of this Tribunal dated 17.12.2020 in the case of Anita Rai Saxena (supra), read as under:-
"15. The controversy, raised in the instant OA, lies in a narrow compass:
whether a reserved category candidate who is next in turn for promotion on his/her own merit, can be promoted on an unreserved vacant post. The issue was deliberated in R.K. Sabharwal (para-6.1 supra) and was settled wherein it was held that it is incumbent on State to reach a conclusion that backward classes, for whom reservation is made, are not adequately represented in State Services. Thereafter, post based roster needs to be followed especially for initial recruitment, wherein certain roster points need to be earmarked to the intended reserved community, to the extent of reservation to be achieved on running basis, wherein the roster point, which is not meant for a reserved community, can be occupied by a General as well as a reserved community candidate depending upon his/her turn in the select panel prepared as per the 8 OA 297/2016 method of appointment by promotion i.e. whether seniority cum- suitability method or as per merit based method. As against this, the roster point for reserved community must necessarily be filled by a candidate belonging to that community only.
This position has remained unchanged.
16. The interim directions dated 17.05.2018 by Hon‟ble Apex Court in Jarnail Singh case (para-7 supra), which has been relied upon by the respondents, are also to the effect that promotion for 'reserved to reserved' and 'unreserved to unreserved' as well as on merit can be continued. Thereafter, detailed order was also passed by Hon‟ble Apex Court in this Jarnail Singh case on 26.9.2018 wherein this position remained unchanged. The order dated 15.04.2019 (para 10.1 supra) to maintain status quo, therefore, does not alter the directives, which were given in R.K. Sabharwal (para-6.1 supra).
17. The respondents have referred the issue of promotion of applicant, for clarification to DoPT as well as Ministry of Health & Family Welfare, who in turn have also consulted Ministry of Law & Justice for clarity. They had clarified to act as per DoPT directives. The DoPT directives were issued on 11.07.2002, 31.01.2005, 10.08.2010 and 15.06.2018 (para-8 supra).
In none of these directives there is any prohibition that a reserved category candidate cannot be promoted in his/her turn on merit for a vacancy which may be earmarked for unreserved category. Therefore, while an unreserved category candidate can be promoted against an unreserved vacancy only, a reserved category candidate can be promoted to a reserved vacancy as per reservation as well as he/she can be considered for promotion against an unreserved vacancy if he/she happens to be the next candidate in line for promotion on merit.
18. In view of the foregoing, there is merit in the OA and it needs to be allowed. Accordingly, OA is allowed."
18. On careful perusal of the order/judgment of this Tribunal in Prakash Chandra's case (supra), it is evident that the issue of reservation in promotion was considered by this Tribunal and after considering the judgment of the Hon'ble Supreme Court in M. Nagaraj (supra), Jarnail Singh (supra) and Mukesh & Anr. Vs. State of Uttarakhand & Ors. [Civil Appeal No.122/2020], this Tribunal, while allowing the said OA, had given certain directions and the same are evident from para 7 of the said order/judgment. Similarly, the issue of reservation in promotion has been answered by the coordinate Bench of this Tribunal in OA No.3476/2013 with a batch of 40 other cases, vide its common order/judgment dated 22.01.2018 and the same has been affirmed by the Hon'ble Supreme Court, vide its judgment dated 25.10.2021 passed in All India Institute of Medical Science (AIIMS) & Anr. vs. Manoj Kumar Singh & Ors. (supra).
19. On the other hand, on perusal of paragraphs 3 and 13.2 of the order/judgment dated 26.10.2021 of the Hon'ble High Court of Delhi in Gyan Singh (supra), it is evident that the issue before this Tribunal as well as before the Hon'ble High Court was with regard to consequential seniority on having been promoted to the post of Cameramen Grade-I and keeping in view the law laid down by the Hon'ble Apex Court in S. Panneer Selvam & Ors. vs. State of 9 OA 297/2016 Tamil Nadu & Ors., reported in (2015) 10 SCC 292 by applying the catch up rule and further the issue before this Tribunal in Anita Rai Saxena (supra) was whether the reserved category candidate, who is next in turn for promotion on his/her merit, can be promoted on unreserved vacant post or not. The issue of reservation in promotion without complying with the directions of the Hon'ble Apex Court in M. Nagaraj (supra) was neither before this Tribunal in Anita Rai Saxena (supra) nor before the Hon'ble High Court in the case of Gyan Singh (supra) and on the other hand, this issue has been considered and decided by the coordinate Bench of this Tribunal vide common Order/Judgment dated 22.1.2018 in OA No.3476/2013 and other 40 cases, including OA No.4209/2015, titled Manoj Kumar Singh (supra), which was affirmed by the Hon'ble Apex Court vide judgment dated 25.10.2021 passed in Special Leave to Appeal (C) No.27300/2019 (All India Institute of Medical Science (AIIMS) and another vs. Manoj Kumar Singh and others).
7. It is to be noted that the issue involved in the present OA is regarding as to whether reservation in promotion is to be applied or not, since the respondents while passing the impugned order has applied the same.
8. Learned counsel for the applicant has submitted that the matter pertains to determined inadequacy of representation of SC/ST for providing reservation in promotion is subjudice before the Hon. Supreme Court of India in Civil Appeal No.629/2022 in the matter of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors as well as in Special Leave to Appeal (C)No.3321/2022 in the matter of Ramkesh Mina & Ors. Vs. UOI & Ors and prayed for similar orders as passed by the Principal bench of CAT in OA 4194/2016.
9. From the perusal of the order dated 07.02.2022 passed by the Principal bench of CAT in OA 4194/2016, it is clear that the present case is squarely covered by the said order. It is to be noted that in the OM dated 12.04.2022 issued by the DOPT, it is stated that the judgment dated 28.01.2022 of the the Hon. Supreme Court of India in Civil Appeal No.629/2022 in the matter of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta 10 OA 297/2016 & Ors currently holds the field. However, the matter is still subjudice before the Hon'ble Supreme Court. In similar circumstances where SLP is pending before the Hon'ble Supreme court, this Tribunal while allowing the OA 426/2020 vide order dated 01.09.2021 granted the relief to the applicant therein with a clause that in case the Hon'ble Supreme Court takes a different view in the pending Civil Appeal, he shall be under obligation to refund the entire benefit without any demur. Accordingly, we are of the considered opinion that since the issue is subjudice before the Hon'ble Supreme court, the present OA deserves to be allowed subject to the outcome of the Civil Appeal No.629/2022 in the matter of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors as well as in Special Leave to Appeal (C)No.3321/2022 in the matter of Ramkesh Mina & Ors. Vs. UOI & Ors pending before the Hon'ble Supreme Court.
10. In view of the above and for the foregoing reasons, we are of the view that the impugned order dated 07.10.2015 issued by the 2 nd respondent is not sustainable in the eye of law and accordingly the same is quashed and set aside to the extent the same has been issued by applying reservation in promotion without compliance with the direction of the Hon. Supreme Court in M.Nagaraj's case. The respondents are directed to act in terms of the directions of the Hon'ble Apex Court in M.Nagaraj's case and redraw the promotional list/panel without following the rule of reservation in promotions and grant all consequential benefits to the applicant, if he is otherwise eligible, however, without any back wages. This exercise shall be completed within a period of 90 days from the date of receipt of a certified copy of this order. The said order is subject to the outcome of the Civil Appeal No.629/2022 in the matter of Jarnail Singh & Ors. Vs. Lachhmi Narain Gupta & Ors as well as in Special Leave to Appeal (C)No.3321/2022 in the matter 11 OA 297/2016 of Ramkesh Mina & Ors. Vs. UOI & Ors pending before the Hon'ble Supreme Court. OA is disposed of as above. No order as to costs.
(Lata Baswaraj Patne) (T. Jacob) Member (J) 12.10.2022 Member (A) MT