Central Administrative Tribunal - Delhi
Smt. Mithlesh Pal vs Delhi Development Authority on 12 December, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2355/2011 Reserved on 23.07.2012 Pronounced on 12.12.2012 Honble Mr. George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) Smt. Mithlesh Pal D/o Shri B.S.Pal Presently posted as Jr.Law Officer, LM Branch DDA, R/o 18A, Indira Colony, Serwat Road Muzaffar Nagar, Uttar Pradesh. Applicant. (By Advocate: Shri Nilansh Gaur) Versus 1. Delhi Development Authority Through its Vice Chairman, Vikas Sadan, INA Market, New Delhi. 2. Commissioner (Personnel) Vikas Sadan, INA Market, New Delhi. 3. Sudershan Kumar presently posted as SLO, Housing Department DDA. 4. Manohar Lal presently posted as SLO, Legal Wing DDA. Respondents No.3&4 are to be served Through Respondent No.2. Respondents. (By Advocate: Shri Karunesh Tondon for respondents no.1 and 2 & Shri Sourabh Ahuja for respondents no.3 and 4) O R D E R
Shri Sudhir Kumar, Member (A) The applicant of this OA has assailed the action of the respondents whereby in the Department Promotion Committee (DPC, for short) meeting held in October, 2010, for filling up seven vacancies in the post of Senior Law Officer (SLO, for short), according to her submission, the candidates belonging to Scheduled Caste (SC, for short) category have been wrongly given promotion in the unreserved category on the principle of merit, hence usurping the quota meant for the candidates of unreserved category, and her request for promotion as SLO in the general or unreserved category has been rejected through the impugned order at Annexure A-1 dated 14.06.2011.
2. The private respondents no.3 and 4 had been served through the official respondents, and they have contested the case of the applicant.
3. The applicant was appointed as a Junior Law Officer (JLO, for short) in 2003 with the respondent - Delhi Development Authority (DDA, for short). It has been submitted that the post of SLO is a Group-A post and the sanctioned strength of the cadre consists of 13 posts, 75% of which posts are earmarked for promotees, and 25% are supposed to be filled up on direct recruitment basis. The applicant is concerned with only 75% quota earmarked for promotion. The applicant has contended that she fulfills the eligibility criteria, being in the feeder category of JLO, and is, otherwise, entitled for promotion to the post of SLO. The applicant has submitted that as per the seniority list of JLO, her position was at Sl.No.8, but since two were her juniors, who were regularized as JLOs after the date of her appointment, she actually comes at Sl.No.6 of the seniority list of JLOs.
4. In June 2007, seven posts of SLOs in the promotion quota were lying vacant. The applicant has submitted that one Sunder Singh, a SC candidate, was already working as SLO, without indicating as to whether he was selected as SLO against the 75% quota earmarked for promotees, or against 25% quota to be filled up on direct recruitment basis. Taking the entire sanctioned cadre strength, the applicant has pleaded that out of the 13 posts, one post is reserved for SC, one for ST and the rest of the 11 posts are unreserved. When in October-November, 2010, the respondents wanted to fill up the 7 clear vacancies in the post of SLOs, they had notified as one post to be reserved for SC, one post for ST, and the 5 posts were meant for General Category candidates. The applicant, a general category candidate, was within the zone of consideration, and has submitted that she was at Sl No.6 of the seniority list. But the DPC, after its deliberations, prepared a panel of 5 JLOs in the following order:
1. Sudershan Kumar (SC) (Respondent No.3)
2. D.R.Srivastav
3. Manohar Lal (SC) (Respondent No.4)
4. Smt. Savita Rani
5. Vinod Kumar
5. The Vice-Chairman, DDA, approved the recommendations of DPC, and promoted the above 5 JLOs as SLOs with effect from 03.11.2010. Feeling aggrieved, the applicant has submitted that even though respondents no. 3 and 4 belong to reserved category, yet they were not promoted against their own quota, and were promoted against the general/unreserved category quota. The promotion process not being one involving any competitive examination, her contention is that there was no question of rival merits of the candidates, and, therefore, the private respondents no. 3 and 4 had usurped the quota meant for unreserved category candidates, against the law.
6. Feeling aggrieved, the applicant had sought information from the respondents under RTI Act, 2005, by filing two RTI applications through Annexure A-2 dated 29.12.2010 and Annexure A-3 dated 18.01.2011. The applicant was issued replies in respect of them through Annexure A-4 dated 28.01.2011 and through Annexure A-5 dated 17.02.2011. The information supplied through Annexure A-4 later modified through Corrigendum issued through Annexure A-6 dated 27.05.2011.
7. The applicant is aggrieved that when the DPC was held by the respondents, the only criteria could have been merit-cum-seniority for promotion to the selection post of Group A, as no process of competitive selection, i.e. written test or viva voce, was undertaken, and only criteria to be considered was having achieved the benchmark Good in the ACR, and the seniority of the person concerned. Therefore, the applicant has alleged that the respondents had wrongly considered the two SC candidates i.e. private respondents no. 3 and 4, and promoted them against the General or un-reserved category on the ground that they had achieved higher merit, while no merit list was prepared by the respondents, and rather, the applicant, who was within the zone of consideration, and was at Sl.No.6 in General category, and should have been promoted, had been denied promotion only on the ground of non- filling up of the vacancies reserved & specifically meant for SC as well as ST category posts. She has contended that with the presence of one SC category candidate already working and accommodated, there was no backlog of SC category post, and even though 7 posts of promotion quota were still vacant against which, in the feeder category, only five eligible candidates were available including the applicant, the private respondents no. 3 and 4 have been wrongly accommodated, and the DPC has erred in this regard in drawing up the Minutes of the DPC Meeting proceedings through Annexure A-8.
8. The applicant has submitted that as per the Recruitment Rules for the post of SLOs, after cadre restructuring, from 9 posts, the cadre strength of the SLOs, was increased to 13, and on the basis of the ratio of 75% posts which were to go the promotees, the promotee quota comes to be of 10 posts. Earlier the respondents were following vacancy based roster, which was later converted into post based roster, according to which, the 7th point meant for SC, and 14th point meant for ST have already been earmarked in the 13 posts. She has submitted that the respondents have followed the methodology prescribed under the DoP&T guidelines by moving horizontally by utilizing points no.14, 15 and 16 for unreserved category, and as per this method, the 20th point fell for SCs, and thereafter up to 26th point, the roster is meant for general category candidates. However, she has alleged that the private respondents no. 3 and 4 have wrongly been counted as promoted against unreserved/general category posts, and have not been placed at the SC points, and as such, point No.20 meant for SC should have been utilized for either of them, which would have left 1 general category unreserved post vacant, on which the applicant could have been promoted.
9. She has further alleged that the respondents have erred in treating one SC post as shortfall despite the fact that one SC promotee was already in position, and thus they have exceeded the percentage of reservation provided to the SCs while giving effect to the post based roster. Therefore, she has assailed the actions of the respondents on the ground of being illegal, arbitrary, mala fide, patently illegal, and opposed to statutory rules, principles of natural justice and the law on the subject. She has also submitted that when the cadre strength of SLOs consists of only 10 posts in promotion quota, reserving two posts out of the 10 for SCs would exceed the percentage for SC category, and since admittedly one SC category candidate, namely Shri Sunder Singh, was already in position, keeping that in view, one post unfilled as an unutilized SC category post, is not legally tenable. She has further submitted that the law as laid down by the Honble Apex Court in K.Manorama vs. Union of India: 2010 (10) SCC 323 is that a person promoted on merit is not counted against unreserved quota, which can be done only in recruitment by open competition, and not in the case of promotion through seniority-cum-suitability alone.
10. The applicant has further assailed the action of the respondents in having violated the DoP&T OM dated 02.07.1997 introducing post based rosters in the manner that they have done by treating the SC candidate promoted not being counted in SC category, but against the unreserved quota, and leaving blank the roster point for SC, which has deprived the applicant of her chance for promotion, which has infringed her fundamental rights for promotion, as held by the Honble Apex Court in Union of India vs. Hemraj Singh Chauhan 2010 (3) SCALE 272. In the result, she had prayed for the following reliefs:
8.1 To set aside the impugned order at Annexure-A/1 and direct the respondents to recalculate the vacancies as per Rules and Law and more specifically in unreserved category which was available on the date of holding DPC and thereafter consider the claim of the applicant for promotion in unreserved category from the date of promotion of his colleagues (vide order dated 3.11.2010) with all consequential benefits.
8.2 To declare the promotion of respondents 3&4 as illegal to the post of SLO and order dated 3.11.2010 be set aside.
8.3 Any other relief which this Honble may deem fit and appropriate, in the circumstances of the case.
11. In the counter reply filed by the respondents on 11.10.2011, they pointed out that the applicant has concealed the fact that when the respondents had actually conducted an examination for direct recruitment to the post of JLOs on 21.07.2003, the private respondent No.4, who was at the 1st position, had passed in the said examination without any relaxation, and he was declared successful in unreserved category. However, at that time the applicant was herself declared successful against the OBC quota, by giving relaxation of four marks in Paper-I, which they sought to prove through Annexure R-2. It was further submitted that the private respondent no.3, who is already working as SLO, was promoted as JLO much prior, vide order dated 09.12.2002.
12. It was further submitted that the cadre strength of Law Officers was reviewed by the Cadre Review Committee and was approved by the respondent-DDA on 22.11.2004, with the approval of the Ministry of Urban Development on 14.06.2010. Prior to this review of the cadre, the sanctioned strength of the SLOs was 8, and as per the then prevalent Recruitment Rules, 50% posts were required to be filled up by promotion, failing which by direct recruitment, and the rest 50% by deputation, failing which by direct recruitment. This Cadre Strength and RRs were replaced by the new RRs, changing the ratio for filling up the enhanced cadre strength of 13 posts, i.e. 75% by promotion and 25% by direct recruitment, which means that now 10 posts are required to be filled by way of promotions, and 3 posts are required to be filled up by way of direct recruitment. At the time of such cadre restructuring, out of the 10 posts for promotion, 3 posts had already been filled up, and the remaining 7 posts were to be filled up by promotion, for which the DPC Note was sent on 24.06.2010. The impugned order of promotion was issued on 03.11.2010 on the basis of seniority-cum-merit. It was pointed out that in the seniority-cum-merit list, the respondent no.3, Shri Sudershan Kumar, was at Sl.No.1, and respondent no.4, Shri Manohar Lal, was at Sl.No.3, whereas the applicant was at Sl.No.6. It was further submitted that since no ST candidate was available in the feeder category, one post reserved for ST category for promotion had been decided to be filled up by direct recruitment, as per the Minutes of the DPC Meeting held on 22.01.2010, and the promotion order was issued by the competent authority after due consideration of the new Recruitment Rules. Thus, out of 9 available SLOs, 8 have been now filled up by promotions, and one was appointed through direct recruitment, and out of remaining two posts vacant for promotion, one post for SC candidate was still vacant, and one post of ST candidate was decided to be filled up by direct recruitment, for which advertisement had been published and applications had been invited & scrutinized.
13. Taking a preliminary objection regarding the OA, the official respondents submitted that while the applicant has challenged the order of promotion dated 03.11.2010 whereby the 5 JLOs were promoted, but the applicant has failed to implead three of them as opposite party-respondents, even though praying for their orders of promotion to be set aside. It was further submitted that the claim of the applicant has been duly considered by the competent authority, but the same has been rejected on the ground that there is no vacancy in unreserved category, as all the five unreserved category posts were duly filled up by the competent authority, and the name of the applicant was at Sl.No.6 of the seniority list. It was denied that the candidates belonging to SC category have been wrongly promoted against unreserved category on the principle of merit, since all the five officers, who have been promoted to the post of SLOs on seniority-cum-merit basis, are senior to the applicant, and it was submitted that the OA deserves to be rejected on the ground that the applicant actually wants to violate the fundamental right of the reserved category candidates to complete and qualify against unreserved posts on their own merit.
14. It was further submitted that Shri Sunder Singh, who was already working as SLO, was promoted because of his seniority in the cadre, on his own merit, even though he belongs to SC category, and the respondents were correct in not counting him against the SC category post, as no relaxation was made available to him as an SC category candidate. It was, therefore, submitted that since all the three concerned officers i.e. Shri Sunder Singh, and the respondents no. 3 and 4, though they belong to the SC category, were promoted as SLOs on the basis of seniority-cum-merit basis in the cadre, as being senior to the applicant, and not against any vacancy earmarked for the SC category candidate, the applicant being junior at Sl.No.6, cannot be allowed to have any grievance against these promotions. It was, therefore, prayed that the OA is liable to be dismissed for non-joinder of the necessary parties, inasmuch as three necessary persons have not been impleaded as party respondents, though they are included in the promotion order which the applicant has challenged, and also because she has failed to appreciate that all the promotions granted even to the persons belonging to the SC category were on the basis of seniority-cum-merit basis, and not on account of any relaxation on account of their being SCs.
15. The private respondents no.3 and 4 filed a separate counter reply on 08.11.2011. They have also taken the ground of preliminary objection of the OA being liable to be dismissed on the ground of mis-joinder and non-joinder of the necessary parties. It was further submitted since their ACRs are throughout outstanding, the DPC has rightly adopted the criteria to promote them on seniority-cum-merit, and the seniority of respondents no.3 and 4 above that of the applicant has not at all been questioned. It was further submitted that as per the principle laid down in regard to promotions, when an incumbent qualifies on his own merit under seniority-cum-merit criteria, he is liable to be promoted, irrespective of his category, which has been done by the official respondents in their case. It was further submitted that the present OA is in the nature of a Public Interest Litigation, since the applicant has not been able to make out any vested right for her being promoted, and that this Tribunal has no jurisdiction to entertain such OA, which is absolutely misconceived, and, is, therefore, liable to be dismissed on that ground alone.
16. In support of their contentions, the official respondents had filed certain further documents by way of Annexures R-1 to R-7 on 11.01.2012, including the Report of the Committee of Cadre Review, according to which the Cadre restructuring was undertaken
17. The applicant filed a rejoinder on 23.02.2012. Through this, she had submitted that the Respondent No.3 is not senior to her on merit basis, and he is senior only on the basis of date of joining. It was further submitted that when Shri Sunder Singh, who was already working as SLO under promotion quota, had already been promoted against the SC reserved quota vacancy, which has already been admitted by the respondents in the reply to the RTI query of the applicant on 28.01.2011 through Annexure A-4, later, the position could not have been changed by issuing a Corrigendum to that information supplied through Annexure A-6 dated 27.05.2011. It was further pleaded that the respondents have erred in computing that there is still a shortfall for SC category post, even though they have already promoted respondents No.3 and 4 belonging to the SC category, calling them to be qualified on the basis of seniority-cum-merit. The applicant had also filed another rejoinder on 23.02.2012 to the reply field by the private respondents no. 3 and 4, admitting that though the applicant had been declared successful as JLO against the OBC quota by giving relaxation of marks, but it was submitted that the subsequent benefit of unreserved category has not been accorded to her in the matter of promotion. It was further submitted that any approval of promotion process adopted by the respondents would amount to exceeding the percentage of SC category quota, and by counting the private respondents R-3 and R-4 against unreserved quota, and leaving the roster point as blank for another SC category candidate, the official respondents have in fact acted to the detriment of the unreserved category candidates, including the applicant of this OA. It was, therefore, reiterated that the OA deserves to be allowed.
18. The respondents then filed another affidavit on 07.05.2012, to bring on record the Instructions relating to the promotion, seniority list and the roster maintained in respect of post based rosters adopted from July 1997, and the Minutes of the Meeting of the Senior Level DPC (Group A Officers) held on 27.10.2010, after which the impugned order was issued.
19. We have heard the learned counsel for all the parties in detail. Learned counsel for the applicant relied upon the case of K.Manorama (supra). Paragraph 17 of the said judgment reads as under:
17. As can be seen from this chart it was Respondent No. 4 who had obtained the highest marks i.e. 128. Mr. V. Subramanian and Mr. T.P. Bhaskar are next to him with 127 and 125 marks respectively. Thereafter, there are other candidates i.e. Mr. Siddaiah, Mr. Abdul Khader and Mr. Muthusamy who all get 124 marks. Mr. Siddaiah has been selected out of them, essentially because it was a Scheduled Caste vacancy which came to 11 be allotted to him keeping aside other candidates. Not only that, but he was placed at number one and respondent No. 4 (having higher marks) was placed at number two. The Tribunal held that if Respondent No. 3 got marks lesser than that of Respondent No. 4, only then he can be said to be selected against Scheduled Caste point. The Tribunal did not realize that the third Respondent had in fact got marks lesser than the fourth Respondent, and his selection was basically because he was a Scheduled Caste candidate. In view of this position, there is no occasion to apply the instruction contained in Railway Board's letter dated 29.7.1993 nor the propositions in R.K. Sabharwal's judgment (supra) to the present case. Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition filed on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of seniority-cum- suitability .
(emphasis supplied).
20. Therefore, he had emphasized that since in the instant case the private respondents no. 3 and 4 belong to the Scheduled Castes, even though they had got selected in the open competitive examination on the basis of their own merit, above the present applicant, without being counted against the quota reserved for Scheduled Castes, but being treated as un-reserved open candidates, but this interpretation will apply only in regard to recruitment by open competition, and not to the promotions effected thereafter on the basis of seniority-cum-suitability.
21. The respondents argued that the benefit of that judgment cannot be made applicable to the applicant, since the respondents no. 3 and 4 were admittedly above the applicant at the time of their recruitment itself, when the examination for the direct recruitment for the post of JLOs was held on 22.03.2000, and it was only the applicant, who had scraped through the said direct selection of JLOs only by virtue of her having been awarded grace marks in Paper-I. In this connection, Annexure R-2 has been produced by the respondents, and the relevant portion of the Note-sheet as produced by the official respondents is reproduced below:-
As discussed, the Result Sheet has been got re-checked and it is observed that the candidate with Roll No.276 is a departmental candidate belonging to SC category. However, he has qualified the exam on merit and, therefore, he is declared successful in UR quota. Accordingly, as per the orders of F.M. above, we may declare the result as under:
S.No. Roll No. Name of candidate Category Marks Remarks
Obtained
Without applying relaxation
1. 276 Manohar Lal SC 425 Passing
without
relaxation
against UR
vacancy.
2. 206 Ms.Savita Rani UR 396 -do-
With applying of relaxation
3. 77 Vinod Kumar UR 415.5 By giving
relaxation
of 4 marks
in Paper 4.
4. 263 Km Mithlesh Pal OBC 385 By giving
relaxation
of 4 marks
in Paper I.
The above panel may kindly be approved in view of the relaxation already approved above at page 6/n.
(D.SARKAR) DIRECTOR (PERSONNEL) Commr(P).
22. Since the Respondent No.4, Manohar Lal had passed the written examination on his own merit, and had been selected without any relaxation, he was treated then as an unreserved category candidate. The issue now is as to he would now also be treated as unreserved category candidate or not, for the purposes of his promotion. In this connection, we may cite para 859 of the judgment in the case of Indira Sawhney vs. Union of India in which the Honble Apex Court had held as follows:-
859. We may summarise our answers to the various questions dealt with and answered hereinabove:
......... .............. ...........
(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of State in Article 12 such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so (Ahmadi, J expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration (emphasis supplied).
23. It was pointed out before us that once persons coming from different sources join a category or class, they must be treated alike thereafter in all matters, including promotions, and that no distinction is permissible on the basis of their birth mark. It was submitted that the Respondent No.4 had scored much more marks than the applicant in the year 2003 itself, and he cannot now be discriminated against only on account of the birth mark, and when once respondent no.4 had entered as an unreserved category candidate, and was senior to the applicant, at the time of consideration of their cases for promotion the applicant cannot be allowed to plead that he cannot be promoted on the basis of his own merit-cum-seniority, and without getting any relaxation in seniority. It was submitted that the respondent no. 4 has been promoted through impugned order annexure A-1 as Sl.No.1 without seeking any relaxation in promotional standard, and he cannot now be categorized by his birth mark.
24. It was further submitted that the Apex Court has further re-affirmed its ratio in Indira Sawhneys case (supra) in the case of U.P. Power Corporation Ltd. vs. Rajesh Kumar & Ors. in which the Apex Court has stated that any promotion that has been given on the dictum of Indira Sawhneys case (supra) and without the aid or assistance of relaxations shall remain undisputed, and any promotion without the rule concerning relaxtion in promotional standard shall remain undisturbed, by stating as follows:-
42. In the ultimate analysis, we conclude and hold that the Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M Nagaraj (supra). any promotion that has been given on the dictum of Indira Sawhneys case (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisputed.
25. It is clear from the case law, as discussed by the Honble Apex Court in UP Power Corporation Ltd. Vs. Rajesh Kumar & Ors. (supra) that when the efficiency in service is not jeopardized, and a person from reserved category is more meritorious than the person from the General or OBC category (like the applicant), his birth mark of having been born in a Scheduled Caste or a Scheduled Tribe family cannot disentitle him to promotion against the General category post, as long as he makes the cut on the basis of his own seniority and merit, and without seeking any concession or relaxation in merit on the basis of his birth mark from the State.
26. The private respondents had, on the other hand, filed a copy of the Delhi High Courts judgment in Union of India and Others vs. Bharat Bhushan and Another: 148 (2008) Delhi Law Times 158 (DB) in which the concerned Office Memoranda of DoP&T had been discussed in detail, and the law laid down as follows:
13. Reading of OM dated 11.7.2002 would show that in substance it clarifies the doubts raised vis-a-vis aforesaid para 11. It indicates that DOP&T had been receiving reference from various Ministries etc. regarding adjustment of SC/ST candidates promoted on their own merit in the reservation category introduced vide OM dated 2.7.1997. It was clarified that in so far as appointment by way of direct recruitment is concerned, if the SC/ST/OBC candidates were appointed on their own merit and not owing to reservation, they were to be adjusted on unreserved points. However, doubts were raised about SC/ST candidates promoted on their own merit. In this behalf, following clarification is furnished in OM dated 11.7.2002:
(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and 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 fake plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating and 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 point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefits reservation in future/further promotions, if any.
(iv) 50% limit on reservation will be computed by excluding such reserved category candidates who are appointed/promoted on their own merit.
14. A conjoint reading of the aforesaid four clarifications would make it abundantly clear that when SC/ST candidates are appointed even by promotion on their merit and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points and not against reserved points. They would still retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions. Once such SC/ST candidates getting promotion on their own merit and not due to reserved points, even while calculating 50% points on reservation such persons would be excluded meaning thereby they would not be treated as promoted against reserved category.
15. up to this point, there is no quarrel or difficulty. The problem arises in the implementation of these directions namely when it would be treated that a particular SC/ST candidate is appointed by promotion on his own merit and not owing to reservation/relaxation of qualifications. Some guidance is provided in OM dated 31.1.2005, in this behalf. Para 3 thereof affords clarification to the effect that since in the case of promotions by non selection, promotions are made on the seniority-cum-fitness and the concept of merit is not involved in such promotions, OM dated 11.7.2002 does not apply to promotions made by non-selection methods. This OM also reproduces the clarification given earlier vide OM dated 1.7.1998 which reads as follows:
It is clarified that only such SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for General category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies. (Emphasis Supplied)
27. Thereafter, the Honble High Court had also gone on to clarify the law on the point in paras 20 and 21 of the judgment, which are as follows:
20. After considering the respective submissions and the position contained in various office memoranda, we are of the opinion that having regard to the recruitment rules, it cannot be said that the promotion to the post of Superintendent Grade B is merely on the basis of seniority. It is treated as selection post. The procedure to be observed by the DPC when the mode of promotion is selection as prescribed in OM dated 8.2.2002. As per this OM the bench mark 'good' is provided. No doubt, the persons are to be ultimately rated as 'fit' or 'unfit'. However, only those candidates would be eligible for promotion who are declared fit and to get the declaration of fit, DPC has to consider and arrive at a conclusion, on the basis of ACRs and other material provided to it, as to whether they are to be graded as good. There is an element of selection here and unless a candidate achieves this bench mark, he would be treated as unfit. Fit or unfit therefore has relevance to achieving the prescribed bench mark and does not have the same connotation as seniority-cum-fitness. The bench mark 'good' has the element of merit.
21. Therefore, what is relevant for us to note as to whether SC/ST candidates are selected for promotion to this post on the same standard as applied to general candidates. If that is so, they would not be adjusted against reserved vacancies. On the other hand, if relaxed standards are applied in making their promotions, for example lesser Bench Mark, lesser period of qualifying service, bringing them in zone of consideration because of the reason of their being SC/ST, comparatively lesser ACRs etc., then they would be deemed as promoted against reserved vacancies. The bench mark for general category candidates is good. It is not known and nothing has come on record to show as to what was the bench mark provided for those Inspectors who belonged to the categories of SC/ST. In the absence of such material provided before us or before the Tribunal it is not possible to come to a definite conclusion. At the same time, we find that without focusing on this aspect which was relevant, the Tribunal simply followed B.C.K. Ralu (supra) and directed the petitioners to pass a detailed and speaking order on the representation of the respondents herein. In these circumstances, having regard to the aforesaid legal position, we modify the directions contained in the order of the Tribunal and dispose of the writ petition by substituting the following directions:
Those candidates belonging to SC/ST category who were recommended for promotions applying the same bench mark of 'good' as applicable to the general candidates such SC/ST candidates would be adjusted against unreserved points. On the other hand such SC/ST candidates who are given promotion on the basis of relaxed standards would be treated as promoted against reserved vacancies.
22. The representation of the respondents herein shall be considered in the aforesaid light and speaking orders shall be passed thereon within three months from today. There shall no orders as to cost.
(Emphasis supplied).
28. Learned counsel for the applicant had also cited the case of Union of India vs. Hemraj Singh Chauhan (supra), wherein it has been held by the Honble Apex Court that right of eligible employees to be considered for promotion is virtually a part of their fundamental right guranteed under Article 16 of the Constitution and flows from guarantee of equality under Article 14 of the Constitution. However, we find that in the instant case no actions of the respondents have breached this ratio, as laid down by the Honble Apex Court. He had also laid emphasis upon the OM dated 02.07.1997 laying down the principles for making and operating post-based rosters. However, para-12 of the said OM states as follows:
12. In the case of small cadres (up to 13 posts), all the posts shall be earmarked on the same pattern as in the model post-based rosters. Initial recruitment against these posts shall be by the category for which the post is earmarked. Replacement of incumbents of posts shall be by rotation as shown horizontally against the cadres strength as applicable. While operating the relevant roster, care will have to be taken to ensure that on no occasion the percentage of reserved category candidates exceed 50%. If such a situation occurs at any time, the relevant reserved point occurring as a result of rotation will be skipped.
29. Here, it is not the case of the applicant that despite the private respondents no.3 and 4 having the birth mark of being SC category, they have come up above the applicant otherwise than by virtue of their own merit. Even the ST category post has been de-reserved and advertised because of non-availability of any ST persons in any feeder cadre, for filling up through unreserved category. Therefore, it cannot also be the case of the applicant that the overall reservation in the cadre of SLOs has exceeded 50%, by virtue of the presence of 3 SCs, one, who was appointed earlier, and two, who had been promoted by the impugned OM on account of being senior to the applicant, and since the limit of 50% reservation ha not yet been reached, even the benefit of this OM cannot also be made available to the applicant.
30. In the result, the OA does not survive, and the same is rejected, but there shall be no order as to costs.
(Sudhir Kumar) (George Paracken) Member (A) Member (J) /kdr/