Central Administrative Tribunal - Delhi
Shri Ram Prakash S/O Late Shri Jeet Ram, ... vs Union Of India (Uoi) Through The ... on 18 April, 2007
ORDER Neena Ranjan, Member (A)
1. In this OA, applicant has prayed for the following reliefs:
a) to allow the application and direct respondents to produce the records;
b) to direct the respondents to hold the review DPC for the vacancies of the year 1994 in accordance with the Rules which prevailed in the year 1994, on vacancy base roster and not on post base roster.
c) to further direct the respondents to also give all consequential benefits after considering the applicant against the vacancies for the years 1994 and 1995 against the vacancy quota.
2. The brief facts of the case are that applicant was appointed as Lower Division Clerk (LDC) on 15.6.1971 through the Union Public Service Commission (UPSC). He belongs to S.C. category. He was promoted as Section Officer on 29.4.1994 on ad hoc basis. He was considered for regular promotion as Section Officer in Departmental Promotion Committee (DPC) meeting and was placed on the select list, issued on 31.7.1998 (Annexure A-1). Subsequently, applicant's name was deleted from this list (without giving him an opportunity to be heard) vide office order No. 47/2003 dated 24.9.2003 (Annexure A-2). This deletion was done since three vacancies of L.D.C.E which had been diverted to the seniority stream but subsequently these three posts had to be restored to the LDCE stream. Thereafter, respondents issued another order No. 48/2003 dated 24.9.2003 in which 15 Section Officers were placed on the select list for 1994 vacancies but the name of the applicant was absent, although his name had been included in the previous prepared panel of 1993, which showed that he was the senior most S.C. official eligible for promotion as Section Officer in the panel of the year 1994 in the seniority stream. After the aforesaid 1994 panel was issued, applicant had represented on 14.1.2004 praying that reservation to SC/ST candidates should have been provided for and that his name be considered for inclusion in the panel. Applicant stated that he received no reply. Meanwhile, respondents issued another order No. 60/2003 dated 19.12.2003 for the 1995 panel in which his name was not included, but names of two other SC and two ST employees were included who were not eligible in 1993 and 1994 but became eligible in 1995. Hence, he submitted another representation on 16.4.2004 pointing out that in the panel of 15 candidates, not a single point had been assigned to SC category and the roster point of seniority quota on which the applicant had been placed in the 1993 panel should have been filled up in 1994 when the DPC for 15 vacancies was held. In spite of these two representations, respondents have neither considered the case of the applicant for inclusion in the select lists for the years 1994 and 1995, and nor have they given a reply.
3. Applicant has argued that respondents have adopted the procedure of post based roster while filling up the vacancies of the years 1994 and 1995 instead of vacancy based roster, although the DOPT had issued instructions that vacancies prior to 2.7.1997 have to be filled up in accordance with the then prevailing Rules and thus the post based roster policy had to be adopted after 2.7.1997. He has relied upon the decision of the Apex Court in Y.V. Rangaiah v. J. Srinivasa Rao 1983 (L&S) 382 that vacancies are to be filled up in accordance with the Rules which are prevalent at the given and relevant time. Accordingly, vacancies which had arisen prior to 2.7.1997, had to be filled up in accordance with vacancy based roster and not post based roster.
4. On the other hand, respondents have vehemently opposed these contentions and stated that applicant, who is a SC candidate, has pleaded for inclusion of his name in the select list of Section Officers for the year 1994. He has prayed for holding the review DPC for the year 1994-95 on the basis of vacancy based roster and not on the basis of post-based roster and consideration of empanelment for promotion as S.O. in the aforesaid panel with consequential benefits.
5. Learned Counsel for respondents stated that according to Railway Board Secretariat Services (RBSS) Rules, 1969, Select List of Section Officers of RBSS is to be prepared from time to time. The Select List consists of persons promoted on the basis of Limited Departmental Competitive Examination (LDCE) conducted by UPSC every year, and persons promoted on the basis of seniority-cum-suitability, in equal proportion. Learned Counsel for respondents have further stated that as per the RBSS (Amendment) Rules, 1989, in case of any shortfall either in LDCE or seniority quota in any year an equal number of vacancies must be diverted to the stream in the same year. In accordance with the amended rules, shortfall vacancies against LDCE quote for the years 1992 and 1993 were diverted to the seniority quota. The diverted vacancies were treated as 'Open Vacancies', i.e., reservations against diverted vacancies were provided as per the 40 Point Roster Register meant for seniority quota and the reservation points pertaining to the shortfall vacancies of a particular year of LDCE were carried forward to the next year's examination. This result in an enhanced number of reserved vacancies for the LDCE thereby adversely affecting the chances of promotion of the general candidates. This procedure of diversion of shortfall vacancies without diverting the reservation point was challenged before the Tribunal by Shri B.R. Malhotra and Ors. v. Union of India in OA-2051/1995 decided on 02.06.2000. In this order the respondents were directed to consider the applicability of their decision contained in the letter dated 03.10.1997 to the case pending before them in accordance with Rules and to pass a detailed speaking and reasoned order. This letter of 3.10.1997 decided to divert the 3 LDCE 1994 shortfall ST vacancies to the seniority stream along with the ST reservation points and not to carry forward these ST reservation points to LDCE 1995, but this decision had not been implemented for past cases as these were sub-judice in OA 2051/1995. Learned Counsel stated that judgment of the Tribunal has been implemented in respect of LDCE, 1993 and 1994 and Speaking Orders have been passed (vide orders 47/2003 and OA 48/2003 both dated 24.9.2003). Respondents have further stated that prior to finalisation of the aforesaid OA, vide Railway Board's order No. 36 of 1998 dated 31.7.1998, names of Assistants of Railway Board Secretariat Services empanelled for promotion to the Section Officers grade of RBSS on seniority basis for the panel year 1993-94, in terms of Clause (a) of sub-para (1) of the modified regulation (2) of the schedule attached to RBSS Rules, 1969 were notified and the aforesaid panel was framed based on the Post Based Roster which came into existence on 02.07.1997, based on DOP&T guide-lines. While adopting this post based roster, it was ensured that representation of persons belonging to the reserved categories in a cadre reaches the prescribed percentage of reservation. In the said order, it was advised that three vacancies in Section Officer's grade which had remained unfilled through LDCE 1993 had been diverted as per rules to seniority panel of 1993, and three additional candidates were included in the seniority panel against said three vacancies and applicant was one of the empanelled additional candidates included in the seniority panel of 1993.
6. Respondent have next stated that OA-2051/1995 was settled and in consonance thereof these three shortfall vacancies in the LDCE 1993 seniority had to be restored to LDCE stream. Three more candidates were recommended by UPSC on the results of LDCE 1993. As a result, size of the seniority panel notified vide order No. 36 of 1998 dated 31.7.1998 had to be reduced by equal number. Accordingly, names of three officers including the applicant were excluded from the revised seniority panel of SOs for the year 1993 notified vide Railway Board's Office Order No. 47 of 2003 dated 24.9.2003. It was decided at the time of finalization of the panel that the officers excluded from the panel will be considered for inclusion in the subsequent panels considering their seniority position, requirement of roster and other relevant rules/instructions. Applicant has, accordingly, been considered for inclusion in the panel of SOs in the year 1994-95 and 1995-96. In the panel for the year 1994, there was no requirement for reservation of vacancy for SC category as per the post based roster and applicant did not have the requisite seniority among the eligible candidates so as to be included in the panel against unreserved vacancies.
7. For the panel pertaining to the year 1995, there were two vacancies reserved for SC category. However, two candidates belonging to SC category who were otherwise senior to the applicant, Ram Prakash, had completed requisite eligibility service under the rules and were empanelled. Again Shri Ram Prakash could not be empanelled because of seniority down the line. His name was again considered in the subsequent panel for the year 1996-97 and included in the panel notified vide office order No. 44 of 2005 dated 31.8.2005.
8. Respondents have relied upon the judgment of the Hon'ble Supreme Court in; the case of R.K. Sabharwal v. State of Punjab as well as J.C. Mallick v. Union of India and Ors. 1978 (1) SLR 844 wherein it has been held that reservation of jobs for the backward classes, SC/ST/OBC should apply to posts and not vacancies. The Apex Court also held that the vacancy based rosters can operate only till such time as the representation of persons belonging to the reserved categories in a cadre reaches the prescribed percentage of reservation. In view of the judgment of the Hon'ble Supreme Court in the above mentioned cases, the vacancy based roster being earlier followed for determining reservation of vacancies were held constitutionally invalid. Subsequent to the directions of the Hon'ble Supreme Court rejecting the vacancy based rosters, DOP&T vide their OM dated 2.7.1997 issued the Post Based Roster replacing the vacancy based roster. The order of the DOP&T were effective from the date of issue of the order. However, it has been clarified by the DOP&T that selections which have been finalized should not be disturbed and necessary adjustments in such cases may be done,
9. The instructions issued by the DOP&T regarding adoption of post based roster in place of vacancy based roster as well as the clarifications thereon issued subsequently have universal application in Government Departments throughout the country and Ministry of Railways is not an exception to it. Hence it is prayed that the OA be dismissed.
10. We have heard the learned Counsel for the parties and perused the relevant orders cited by both sides and the judgments referred to.
11. The essence of this OA is that the applicant had been appointed Section Officer on ad hoc basis on 29.4.1994. He was later selected in the 1993 regular promotion panel in accordance with the rules then in force. This panel was notified on 31.7.1998. In between, the Apex Court ruled in the R.K. Sabharwal case (supra) on 10.2.1995 that vacancy based rosters for reservation of SC, ST and OBC were invalid and held that the appropriate manner of ensuring reservation was to follow a post based roster. This judgment was to be given prospective effect. In compliance, the Department of Personnel and Training (DoPT) issued guidelines on 2.7.1997. In these guidelines, it was provided that they would apply from the date of issue, but where selections had already been finalized they need not be disturbed and the necessary adjustments in such cases may be made in future. The respondent switched over to the post based roster while notifying the 1993 panel on 31.7.1998, and made it subject to the outcome of OA 2051/1995 pending with this Tribunal. Thus the name of the applicant figured in the 1993 panel, which was prepared by applying a post based roster. The contention of the applicant that panels for vacancies prior to 2.7.1997 should have been prepared by application of a vacancy based roster is, therefore, of no avail nor is his reliance on the Apex Court judgment in the Y.V. Rangia case (supra).
12. Before moving to the implications of OA 2051/1995 it is worthwhile to understand the spirit of the DoPT guidelines of 2.7.1997 on substituting the vacancy based rosters by a post based roster in light of the Supreme Court's decision in the R.K. Sabharwal case. The Supreme Court had held, with prospective effect, that a post based roster should be used for reservations. The reference date for this prospective effect became 2.7.1997. Now a post based roster is something like a photograph taken on 2.7.1997, which would show how many of the posts in the cadre had been filled till then against the reserved quota and how many against the general category. Persons of reserved categories who had been appointed against the general 'quota' were to be counted as general candidates. If the number of posts that stood filled on 2.7.1997 by reserved category candidates was different from the prescribed percentage of reservation, the difference would be made good by adjusting future appointments, while keeping intact the sources of recruitment laid down in the relevant recruitment rules. Also the roster points for earmarking reserved category posts would be as per one of the model rosters exemplified in the said DoPT circular of 2.7.1997 and chosen by the concerned Ministry. This is exactly what the respondent did in notifying the 1993 panel on 31.7.1998, and in subsequent panels. In our view, the applicant's plea that post based roster could only apply to 'vacancies' arising after 2.7.1997 and till that date the vacancy based roster would be applicable is self-contradictory and is based on a misunderstanding of the concept of a post based roster. The applicant cannot acquiesce in the inclusion of his name in the 1993 panel and then attack the 1994 and 1995 panels, because all of them were prepared on a post based roster.
13. The principal grievance of the applicant appears, therefore, to be against the deletion of his name from the 1993 panel in 2003. In order to examine this, we now return to the developments arising from the orders passed by this Tribunal in OA 2051/1995. The judgment in the said OA was delivered on 2.6.2000, remanding the 'past' cases of the applicants in that OA to be considered in terms of policy contained in Railway Board's letter dated 3.10.1997 laying down that diversion of LDCE shortfall posts would be done to the seniority stream together with the reservation points, and the reservation points in the LDCE shortfall would not be carried forward to the next year's LDCE. On 24.9.2003, the respondent issued the impugned orders deleting the name of the applicant from the promotion panel for 1993 vacancies (order No. 47/2003) and did not include him in the 1994 panel (order No. 48/2003). The case of the respondent is that they had to do this in consonance with the directions of this Tribunal in OA 2051/1995.
14. We find that the stand of the respondent has considerable force. The inclusion of the applicant's name in the 1993 panel was done on 31.7.1998, using a post based roster. It was not a case of selection already finalized before 2.7.1997. The deletion of the applicant's name was because the respondent applied the policy contained in Railway Board's letter dated 3.10.1997, which this Tribunal had asked the Railway Board to consider. We are unable to locate any infirmity in this action of the respondent, which actually finds support from the view taken by the Union Public Service Commission (UPSC), which agreed to supply three additional persons from LDCE-1993. The applicant has also not contested the aforementioned policy in his averments.
15. Accordingly, the OA is found to be devoid of merit and is dismissed. No order regarding costs.