Himachal Pradesh High Court
Ram Asra & Ors vs State Of H.P. & Others on 23 December, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5647 of 2021 Decided on: 23.12.2022 .
Ram Asra & Ors. ...Petitioners
Versus
State of H.P. & others ....Respondents.
........................................................................................
Coram The Hon'ble Ms Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 Yes.
For the petitioners: Mr. Adarsh K. Vashista, Advocate.
For the respondents: Ms. Ritta Goswami, Additional
Advocate General, for
r respondents No.1 to 3.
Mr. Dinesh Banot, Advocate, for
respondent Nos.4 to 7, 9, 11, 13
to 15.
None for respondent Nos. 8, 10
and 12 though served.
Jyotsna Rewal Dua , J
This writ petition has been filed for the grant of following substantive relief:-
"(i) That a writ in the nature of mandamus may kindly be issued for directing the Respondents to follow the reservation roster while carrying out promotion to the post of Block Elementary Education Officer in District Solan in the on-going promotions in pursuant to Annexure P-6, dated 19.8.2021 by offering 7th point to SC and 14th point to the ST category."1
Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/12/2022 20:31:54 :::CIS 22. The petitioners have pleaded that they were appointed as Junior Basic Trained Teachers (JBT) on tenure basis during the .
years 1988 and 1989. Their services were regularized on 23.03.1990. They were promoted as Centre Head Teachers on 16.09.2010. The next promotional avenue available from the post of Centre Head Teacher is to the post of Block Elementary Education Officer. The post of Block Elementary Education Officer is to be filled up 100% by way of promotion from the eligible persons in terms of the applicable Recruitment and Promotion Rules.
It has been stated by the petitioners that they were eligible for being considered for promotion to the post of Block Elementary Education Officer. The petitioners further submitted that private respondents No.4 to 15 were also recruited as Junior Basic Trained Teachers in the year 1989. These respondents were regularized in December 1989. These private respondents belong to Scheduled Caste Category.
3. The case put-forth by the petitioners is that the respondent-department is under obligation to follow 7 point roster for providing reservation to the Scheduled Caste category and 15 point roster for the Scheduled Tribes category. For filling in vacancies of Block Elementary Education Officer now available/going to be available in near future, the respondent-
department has prepared a panel for promotion of eligible officers ::: Downloaded on - 29/12/2022 20:31:54 :::CIS 3 from the feeder channel, wherein private respondent Nos.4 to 15 have been placed over and above the petitioners. The grievance of .
the petitioners is that the panel prepared by the respondents-
department is not legal & valid as vacancies in question are meant for employees belonging to General Category and private respondents No.4 to 15 can not be considered against the vacancies meant for General category. They could be considered only against their own roster points meant for reserved category.
4. Respondents in their reply have clearly stated that respondents No.4 to 15 though belong to reserve categories, however, in the seniority list of Centre Head Teachers, they rank senior to the petitioners. Hence the private respondents were eligible for promotion as per their turn, even in General category by virtue of their higher seniority positions in the final seniority list.
5. Observations 5(i) The petitioners have not disputed the final seniority list of Centre Head Teachers, wherein respondents No.4 to 15 occupy higher seniority positions than enjoyed by the petitioners.
5(ii) In Civil Appeal No.3314/2010 (Union of India & Ors.
Vs. Gopal Meena & Ors) decided by the Hon'ble Apex Court on 10.08.2022, the Central Administrative Tribunal had ordered for separate zone of consideration for promotion of Scheduled Caste/Scheduled Tribe candidates. The orders were affirmed by ::: Downloaded on - 29/12/2022 20:31:54 :::CIS 4 the High Courts. Appeals were filed before the Hon'ble Apex Court by Union of India. The contention of the appellant was that there .
cannot be a separate zone of consideration for each category of the officials. The zone of consideration is in respect of the candidates falling in the seniority list. The candidates belonging to Scheduled Caste and Scheduled Tribe were given relaxation to extend zone of consideration up-to five times of vacancies. It was argued that effect of order passed by the High Court would be that all eligible candidates at whatever position in the seniority list, would fall within zone of consideration, though they may be lowest in the list.
Whereas relying upon R.K. Sabharwal & Ors Vs. State of Punjab (1995) 2 SCC 745, the respondents pleaded that reservation has to be post based and roster points for Scheduled Tribes, should only be filled by Scheduled Tribes alone. Thus the contention was that by applying the principle of reservation, General category and reserved category have to be treated separately and without clubbing. There has to be separate zone for each category i.e. General, Scheduled Caste & Scheduled Tribe rather than the common seniority list, which is prevalent for determining zone of consideration for promotion.
Hon'ble the Apex Court noticed its previous pronouncements on the issue and also considered several office memorandums issued by the concerned departments on the ::: Downloaded on - 29/12/2022 20:31:54 :::CIS 5 subject which inter-alia stated that for regular promotions, zone of consideration is prescribed keeping in view the number of .
vacancies to be filled up. It was inter-alia held that while filling up vacancies by way of promotion on regular basis, a Departmental Promotion Committee is constituted and profile of candidates coming within zone of consideration is prepared. The impugned orders passed by the High Courts were set aside.
5(iii) In 2012(3) ShimLC 1770 (Shyam Lal Vs. HPSEB), after taking note of R.K. Sabharwal's case (supra) & (1995) 3 SCC 552 (P. Sheshadri Vs. Union of India), it was held that if the number of S.C candidates, who by their own merit, can be selected to general vacancies, class or even exceed the percentage of reserved candidates, it cannot be said that the reservation quota in S.C. quota stands filled. The entire selection is in addition to the reservation against the general category. Relevant paragraphs from the judgment read as under:-
"16. Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in para-5 of R.K. Sabharwal's case, aforesaid. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates as also held in Union of India & Others versus Virpal ::: Downloaded on - 29/12/2022 20:31:54 :::CIS 6 Singh Chauhan and others 1995 6 SCC 684, Post Graduate Institute of Medical Eduction & Research. Chandigarh and others Vs. K.L. Narasimhan and another 1997 6 SCC 283 and also in .
Rajesh Kumar Daria Versus Rajasthan Public Service Commission & Others 2007 8 SCC 785.
17. To sum up, if the number of S.C. candidates, who by their own merit, can be selected to general vacancies, class or even exceeds the percentage of reserved candidates, it cannot be said that the reservation quota in S.C. quota stands filled. The entire selection is in addition to the reservation against the general category."
5(iv) Chapter 16 of Handbook on Personal Matters Volume-I prescribes zone of consideration of promotion of officers eligible in the feeder grade. It is an admitted factual position that all private respondents rank senior to the petitioners in the seniority list of Centre Head Teachers.
In view of above, the contention of the petitioners that the eligible officers in the feeder channel i.e. private respondents No.4 to 15 belonging to Scheduled Caste category should be considered for promotion only against reserve category posts and only against the roster points meant for that category sans merit.
This writ petition is therefore dismissed. Pending miscellaneous applications, if any, also stand disposed of.
Jyotsna Rewal Dua Judge 23rd December, 2022 (rohit) ::: Downloaded on - 29/12/2022 20:31:54 :::CIS