Central Administrative Tribunal - Allahabad
Anwar Khan vs General Manager N C Rly on 20 March, 2024
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No.1334 of 2015
This is the 20th Day of March, 2024.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
1. Anwar Khan, aged about 48 years, son of, Late Sher Khan, resident of, 132, MRKS
Colony, Deen Dayal Nagar, Jhansi-U.P. Presently posted as, Loco Pilot (Goods), at
Jhansi Division of North Central Railway.
2. Anil Kumar Verma, aged about 48 years, son of, Sri Raja Ram Verma, resident of,
House No. 418/S, Kamal Singh Colony (Teetu Ki Khadan), Care of, Late U.K.
Pandey, Khati Baba, Jhansi-U.P. Presently posted as, Loco Pilot (Goods), at Jhansi
Division of North Central Railway.
3. Hari Ram Gupta, aged about, 37 years, son of, Late P.N. Gupta, resident of, 46/30,
Krishna Enclave, Nandanpura, Sipri Bazar, Jhansi-U.P. Presently posted as, Loco
Pilot (Goods), at Jhansi Division of North Central Railway.
4. Shailendra Kumar Khosla, aged about 41 years, son of, Sri Raj Kumar, resident of,
House No. 1157/A, near Tubewell No. 2, Khati Baba, Jhansi-U.P. Presently posted
as, Loco Pilot (Goods), at Jhansi Division of North Central Railway.
...........Applicants
By Advocate: Shri Shyamal Narain
Versus
1. Union of India through the General Manager, North Central Railway, Allahabad-U.P.
2. The Divisional Railway Manager, North Central Railway, Jhansi-U.P.
3. The Divisional Railway Manager (Personnel), North Central Railway, Jhansi-U.P.
4. The Senior Divisional Electrical Engineer(Operations) North Central Railway,
Jhansi-U.P.
5. The Senior Divisional Mechanical Engineer(O&F) North Central Railway,
Jhansi-U.P.
6. Sri Hemraj Meena,
7. Sri Rajesh Joshi
8. Sri Ram Het Meena
9. Sri Ashok Kumar Meena
2
All the private Respondent Nos. 6 to 9, presently posted as, Loco Pilot (Goods), at
Jhansi Division of North Central Railway.
10. Rekhraj Meena, aged about 30 years, son of Ser Nand Kumar Meena, presently
working as Loco Pilot Goods, N.C. Railway, Jhansi, R/o R.3-11/722-C, Ram Laxmi
Nagar, Jhansi.
11. Hari Kishen Meena, son of, Sri Hari Sahay Meena, presently working as Loco Pilot
Goods, NC Railway, Jhansi, r/o H. No.2122 /Brahmpur, Colony, Khati baba, Jhansi.
......... Respondents
By Advocates: Shri Manoj Kumar Sharma
Shri Anil Kumar
ORDER
Delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 on 30.09.2015 for direction to the respondents restraining them from applying the principle of reservation while making the proposed promotion to the post of Loco Pilot (Passenger) in PB 9300-34800/- GP 4200/- in Jhansi Division of North Central Railway by non-selection method on the basis of scrutiny of ACRs/Working reports with prescribed Benchmark. The applicant also seeks the relief that the respondents be directed to make the proposed promotion strictly on the basis of seniority-cum-suitability as per common seniority of candidates as reflected in the seniority list dated 01.02.2015 irrespective of their caste or tribe status and make the proposed promotion on the basis of RBE 77/2005 dated 06.05.2005 [Anx-A-8] and RBE 19/2009 dated 29.01.2009 [Anx-A-9] and not upon the basis of RBE 126/2010 dated 01.09.2010 [Anx-A-11]. The relief(s) claimed in Para-8 of the O.A. as under:-
"(a) That this Hon'ble Tribunal be pleased to issue a suitable order or direction restraining the respondents from applying the principle of reservation while making the proposed promotions to the post of Loco Pilot (Passenger), at the Jhansi Division of the North Central Railway, by Non-Selection method, on the basis of suitability with prescribed benchmark.
(b) That this Hon'ble Tribunal be pleased to direct the respondents to make the proposed promotions, strictly on the basis of seniority-cum-suitability, as per the seniority of the candidates, as reflected in the Seniority list of Loco Pilot (Goods), as on 01.02.2015, last published vide letter dated 17.02.2015.
(c) That this Hon'ble Tribunal be pleased to direct the respondents, to make the proposed promotions on the basis of RBE No. 79/2005 dated 06.05.2005, and RBE No. 19/2009 dated 29.01.2009, and not RBE No.126/2010 dated 01.09.2010, since the basis of the said RBE, namely, the D.O.P.&T O.M. dated 10.08.2010 has since been quashed by the Hon'ble High Court of Punjab and Haryana at Chandigarh.3
(d) That this Hon'ble Tribunal be pleased to direct the respondents to make the proposed promotions, strictly on the basis of seniority-cum-suitability, as per the seniority of the candidates, irrespective of their caste/tribe status.
(e) That this Hon'ble Tribunal be pleased to grant such other relief, as the applicants might be found entitled to in the facts and circumstances of the case.
(f) That this Hon'ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout."
2. It will be proper to mention here that RBE 79/2005 was referred in various places in the OA, and the date of Anx.A-7 was mentioned as 31.05.2005. When the mistake was pointed out, the applicant make the correction in Para-4.10 and mentioned RBE 77/2005 instead of 79/2005 and date 31.01.2005 instead of 31.05.2005. But in some places the number 79/2005 and date 31.05.2005 is also mentioned. Therefore, whenever "RBE No.79/2005" is referred then it should be read as "RBE 77/2005" and date 31.05.2005 is referred then it should be read as 31.01.2005.
3. The case of the applicant, in brief, may be referred as under:-
(a) The Railway Board issued the RBE 161/2009 dated 03.09.2009 with a view to implementing the recommendation of the 6th Pay Commission and by this RBE the Board issued the revised classification and mode of filling the vacancy. It was mentioned that the decision has been taken for promotion to all vacancies as existed on 31.08.2009 may be made as one-time exemption.
(b) As per the applicant, the seniority list dated 17.02.2015 (Annexure A-2) was issued by the respondent's department in which the seniority as on 01.02.2015 was mentioned. The applicants No.1, 2, 3 and 4 are at the Sl.
No.85, 258, 240 and 241 respectively while the seniority position of respondent Nos. 6, 7, 8 and 9 are on 316, 317, 319 and 345 respectively. During the pendency of this OA, the impleadment application was also allowed by the court and the names of respondent Nos. 10 and 11 were also included and their seniority is at 344 and 341 respectively.
(c) The respondent railway issued a letter dated 08.09.2015 for calling the ACRs and DARs of Loco Pilot (Goods) working as Jhansi Division of North Central Railway for their promotion to the post of Loco Pilot (Passenger). Along with the aforesaid letter the list of employees was also attached. As per the applicant, the name appearing in the proposed promotion list at Sl. No.1 to 83 are in the order of seniority as per the seniority list dated 01.02.2015 (which was issued on 17.02.2015). It is again submitted that in the aforesaid proposed promotion list from SL. No.84 to 97 are the candidates who belonged to Schedule Tribes, and their names have been included by ignoring the seniority of higher rank candidates of the unreserved category. A large number of ST candidates much junior to the present applicant are included. As per the applicants, the classification was mentioned in the RBE 161/2009 (Annexure A-1) 4 and as per the statement enclosed with the aforesaid RBE the post of Loco Pilot (Passenger) is a "non-selection post", therefore, the aforesaid post can only be filled by 100% promotion on the basis of suitability with prescribed Benchmark from amongst Loco Pilot (Goods).
(d) By following the DoP&T OM dated 11.07.2002 (Annexure A-4), the Railway Board vide letter dated 07.08.2002 (Annexure A-5) and dated 20.06.2003 (Annexure A-6), clarified that the SC/ST Candidates promoted on their own merits will be adjusted against the unreserved point.
(e) It is again pleaded that the DoP&T clarified Annexure A-4 dated 11.07.2002 vide another OM dated 31.01.2005 (Anx.A-7) and the Railway Board by following the aforesaid letter 31.01.2005 (Anx.A-7), issued clarification in all most identical term vide letter dated 06.05.2005 RBE-77/2005 (Anx.A-8).
(f) As per the applicant, it was clarified by RBE 77/2005(Anx.A-8) that in the case of promotion by non-selection method, the promotion will be made on the basis of seniority-cum-fitness and the concept of merit is not involved in such promotion. It was also clarified that the instruction contained in the Board letter dated 07.08.2002 (Annexure A-5) and 20.06.2003 (Annexure A-6) will not apply to the promotion made by non-selection method.
(g) When some queries were raised by different Zonal Railways / Production Units then the Railway Board issued RBE 19/2009 dated 29.01.2009 (Annexure A-9) in which it was stated that the instruction contained in the letter dated 06.05.2005 (Annexure A-8) would take effect from 07.08.2002 but promotion which had already been finalized will not be disturbed. It was provided that SC/ST candidates, who were promoted during the period of 07.08.2002 to 06.05.2005 by non-selection method in excess of reservation quota, are to be adjusted against the reserved vacancies arising in the future. Another important clarification was also given in the aforesaid letter dated 29.01.2009 (Annexure A-9) that senior SC/ST candidates coming in the normal zone for consideration against the post to be filled by a non-selection method cannot be denied promotion on the ground that there were no reserved vacancies or there was an excess representation of that particular reserved category. It was provided that SC/ST candidates may get promoted by the non-selection method in excess of the reservation prescribed for them provided they falls within the normal zone of consideration as per their seniority but with the rider that such SC/ST candidates would be adjusted against reserved vacancies arising in the future.
(h) It is submitted that the CAT Bench Chennai (then Madras) by order passed in OA No.900/2005, set aside the OM dated 31.01.2005 (Annexure A-7) upon which the Railway Board Letter dated 06.05.2005 (Annexure A-8) was based. The Bench held that when a person selected on the basis of his own seniority the scope of considering and counting him against quota reserved for SCs does not arise. The aforesaid 5 decision of the Tribunal was upheld by Chennai High Court in Writ Petition No.15926/2007 and thereafter, the DoP&T withdrew his OM dated 31.01.2005 (Annexure A-7) and issued another OM dated 10.08.2010 (Annexure A-10).
(i) In the letter dated 10.08.2010 (Annexure A-10), it was clarified that SC/ST candidates appointed by promotion on their own merits and seniority and not owing the reservation or relaxation of qualification will be adjusted against the unreserved point of reservation roster irrespective of the fact whether the promotion is made by selection method or non-selection method and the said order shall take effect from 21.08.1997, the date on which post based reservation was introduced.
(j) The Railway Board, by following the DoP&T letter dated 10.08.2010 (Annexure A-10), also issued RBE 126/2010 dated 01.09.2010 (Annexure A-11), by which the Railway Board recalled and withdrew the letter dated 06.05.2005 (Anx.A-8) and letter dated 29.01.2009 (Anx.A-9).
(k) The Apex Court passed the judgment dated 29.09.2010 in the case of K. Manorama and held that the principle that when a member belonging to a scheduled caste gets selected in the open competition field on the basis of his own merits, he will not be counted against the quota reserved for scheduled caste but will be treated as open candidate, will apply only in regard to recruitments by open competition and not to the promotions effected on the basis of seniority-cum-suitability.
(l) The Railway Board wrote a letter on 03.02.2011 (Annexure A-12) to the DoP&T and requesting to examine the matter urgently upon the ground that the judgment of the Supreme Court in K. Manorama's case completely negated the validity of DoP&T memo dated 10.08.2010 (Annexure A-10) and the Railway Board order dated 01.09.2010 (Annexure A-11).
(m) It is again submitted that the Punjab and Haryana High Court at Chandigarh delivered a judgment on 15.07.2011 in Laxmi Narayan Gupta case and quashed the DoP&T OM dated 10.08.2010 (Annexure A-10) which formed the basis of RBE 126/2010 dated 01.09.2010 (Annexure A-11). The Court found that the same was in direct conflict with the view taken by the Constitution Bench in M. Nagraj's case and Suraj Bhaan Meena's case.
(n) As per the applicant, in view of the above the Railway Board's order dated 01.09.2010 which was peri material with the DoP&T letter dated 10.08.2010 (Annexure A-10), cannot be deemed to have been quashed as well as rendered nugatory, thereby resulting the revival of Railway Board's letter dated 06.05.2005 (Annexure A-8) and 29.01.2009 (Annexure A-9) which had been withdrawn vide letter dated 01.09.2010 (Annexure A-11).
(o) It is also mentioned by the applicant that Jabalpur Bench of CAT sitting at Indore passed the order on 08.08.2011 and the Jaipur Bench of this 6 Tribunal passed the order dated 26.11.2011 holding that the RBE 126/2010 Annexure A-11 following the DoP&T letter dated 10.08.2010 (Annexure A-10), does not survive and directing that same should not be given effect to. The order passed by Jaipur Bench also confirmed and upheld by Rajasthan High Court in Writ Petition No.2773/2012 decided on 11.11.2013 titled Union of India & Ors. vs. Lokesh Kumar Saini and ors.
(p) As per the applicant, looking to the aforesaid legal position as stands today, the RBE 77/2005 dated 06.05.2005 and RBE 19/2009 dated 29.01.2009 stand reviewed and hold the field, thereby rendering the adjustment of SC/ST candidates against unreserved vacancies in the matter of promotion by non-selection method wholly impermissible and illegal.
4.(a) The main challenge of the applicant is based upon the contention that because the post of Loco Pilot is a "non-selection post" as per RBE 161/2009 dated 03.09.2009, therefore the question of reservation is not permissible. In addition to that contention, the applicant also made the pleading regarding non applicability of the "reservation" in promotion. It is mentioned in the pleading that even by selection method, the reservation cannot be granted automatically or mechanically according to the judgment of the Supreme Court passed in M. Nagraj's case. As per the aforesaid case, the State or the appropriate Government must conduct an exercise in the nature of the survey and collect quantifiable data to satisfy the court that there was indeed a compelling need to resort to the reservation on the grounds of lack of, or inadequate representation or the class or community sought to be given the benefit of reservation and further that efficiency of administration would not be sacrificed by the proposed reservation. As per the applicant, no such exercise or survey has been conducted by the respondents; hence in the absence of that exercise, there can be no question of reservation in the proposed promotion to the post of Loco Pilot (Goods)/Diesel.
4(b). The applicant also referred to the UP Power Corporation Limited case and submits that in the aforesaid case it was clearly held that the exercise mandate in M. Nagraj's case has not been undertaken by the State and the condition precedent for making reservation in promotion is not satisfied. The review filed against the aforesaid judgment dated 27.04.2012 was also dismissed by the Supreme Court.
4(c). It is also mentioned that the controversy involved in the present O.A. has already been resolved, adjudicated upon, and set at rest by this Tribunal in a Bunch matter decided on 15.11.2014 holding that it was not permissible for the Railways to apply the principle of reservation while making promotion. The leading case of the Bunch was O.A. No.1500/2012 (Sunil Kumar Rajput & ors. Vs. Union of India & Ors.). Various writs against the aforesaid judgment in Sunil Kumar's case were also filed and dismissed by the High Court of Allahabad.
4(d) The applicant also referred to the case of Santosh Kumar Singh vs. Union of India order dated 31.03.2015 passed in OA No.633/2014. It is also stated that the interim order was also granted by this Tribunal restraining the 7 respondents from applying the RBE 126/2010 dated 01.09.2010 (Annexure A-11).
5. Upon the basis of the aforesaid pleadings, the applicants pleaded in Para 4.28 of the OA that in view of the legal position, firstly it is not open to the respondents to make the promotion in question applying the principle of reservation at all and secondly, even assuming that principal of reservation can be invoked by the respondents, the principal of 'own merit' promotion for the SC/ST candidates stands completely ruled out by the existing Railway Board's orders since the promotion in question are to be made by way of non-selection method, on the criteria of suitability with prescribed Benchmark and concept of merit is not involved at all. Again submitted that the respondents seriously erred in following the RBE 126/2010 dated 01.09.2010 (Annexure A-11) which has already been struck down by several judicial decisions. It is also mentioned that the applicants having no any grievance against the first 83 persons, whose names appear in the list appended to the letter dated 08.09.2015 since their names have been included on the criteria of seniority, but the names of respondents are included wrongfully and they are not acceptable.
6. The respondent Nos. 1 to 5 filed their counter affidavit on 30.11.2015. It is stated that nothing in the Article 16(4) of the Constitution of India, self prevents the State from making any provision for the reservation of appointments or posts in favour of any backward classes of citizen, which in the opinion of State are not adequately represented in the service under the Scheme. According to the provision contained in Article 16(4A) of the Constitution of India, nothing shall prevent the State from making any provision for reservation in the matter of promotion with consequential seniority to any class or classes of the post in services under the State in favour of the Scheduled Caste and Scheduled Tribes which in the opinion of State are not adequately represented in the service under the State. ,
7. It is again submitted by the aforesaid respondents that the issue of reservation in promotion has been discussed several times before the Supreme Court. In the pleadings, some case laws are also referred. It is submitted that bare perusal of the assessment sheet, 16% of posts are available in favour of ST although no person is working in this cadre for which promotions are going to be made. The Railway Administration has decided to give the benefit of reservation to ST up to the extent of 16%, although all 13 persons are working for ST in the present division as Loco Pilot (Passenger).
8. The aforesaid respondents again submitted that the post of Lolo Pilot (Passenger) is to be filled on the basis of suitability with the prescribed Benchmark. Accordingly, assessment to fill up vacancies of Loco Pilot (passenger) has been done for un-reserved - 68, SC-15, and ST-15 total 99 posts. The eligibility list of employees has been prepared by ignoring RBE 126/2010 in compliance with the interim order of this Hon'ble Tribunal passed in OA No.825/2012 Shri Santosh Kumar Singh & Ors. Vs. Union of India & Ors. It is again submitted that there is no any ST employee in the cadre of Loco Pilot (Passenger), therefore only eligible ST candidates having a two years residency period have been considered from Sl. No.85 to 97 as per seniority 8 against the reserved vacancy for ST candidates to maintain the required percentage of ST in the cadre as per Chapter IX (9.5) of the Government of India grosser on reservation for SC/ST.
9. The aforesaid respondents also filed Supplementary Counter Reply on 20.10.2022 and mentioned that the Interim Order dated 01.11.2015 has been granted on the basis of Railway Board Circular RBE 126/2010. During the pendency of this Original Application, the Railway Board issued circular dated 22.06.2022 (Annexure SCR-1), dated 02.05.2022 (Annexure SCR-2), and dated 13.04.20222 (Annexure SCR-3) respectively.
10. The private respondent Nos. 6 to 9 filed their counter affidavit on 17.11.2015. The respondent Nos. 10 and 11 did not file any counter reply separately.
11. It is submitted by respondent Nos. 6 to 9 in their Counter Affidavit that they are entitled to get the promotion because sufficient representations not available in the cadre. In the entire counter affidavit, the most part of the affidavit has been filled by quoting the various case laws. Therefore, it is not required to mention here. The case laws will be discussed later on. It is submitted by them that the post of Loco Pilot (Goods) and Loco Pilot (Passenger) were classified as selection posts. This post is not a non-selection post which is filled on the basis of seniority-cum-fitness and the applicants are illegally claiming that the post of Loco Pilot (Passenger) should be filled on the basis of seniority-cum-suitability along. It is also mentioned that even in the non-selection post, the post-based roaster is applicable as provided in the Constitutional Bench Judgment passed in R.K. Sabharwal's case [1995 SCC (L&S) 546], the other facts are similar to the counter affidavit filed by respondent No. 1 to 5. The respondents pray to reject the OA.
12. The Ministry of Railways, Government of India issued RBE 161 of 2009 [No. E (NG)- 2008 / PM1/15] (Anx.A-1) on 03.09.2009 with a view of implementing the recommendation of 6th pay commission related to the merger of grades. In para 2, it was stated:-
"2........Since the issue of laying down revised classification and mode of filling up may take further time, therefore, it has been decided that as a onetime exemption promotion to all vacancies as existed on 31.08.2009, may be made as indicated in the enclosed statement. The following methodology may be adopted for effecting the promotions in question.........."
13. Seniority list as on 01.02.2005 [Anx.A-2] of Loco Pilots (Goods) working under Jhansi Division of the North Central Railways was published vide letter dated 17.02.2015. As per aforesaid list the seniority position of Applicant No. 1, 2, 3, and 4 is at 85, 258, 240 and 241 respectively. The Respondents No. 6, 7, 8, 9, 10 and 11 are at Serial No. 316, 317, 319, 347 ,344 and 341 respectively.
914. Vide letter dated 08.09.2015 [Anx. A-3], issued by office of the D.R.M. [Personal], NCR Jhansi, a list of Loco Pilots was sent to Sr. Divisional Electrical Engineer (Operations) and other authorities for sending the ACR and D.A.R. status of the employees included in the list, for consideration their names for promotion to the post of Loco Pilot (Passenger). In the aforesaid list the name mentioned at Serial No. 1 to 83 are in the order of seniority [as per Seniority list as on 01.02.2005 -Anx.A-2] but at Sr. No. 84 to 97 the Junior employees belongs to Scheduled Tribe are included.
15. DOPT considered the references from various Ministers regarding adjustment of SC/ST candidates promoted to their own merit in post based reservation roster, and issued the clarification vide Memo No. 36028/17/2001- Estt. (Res.) dated 11.07.2002 [Anx. A-4]. Following clarifications were given:-
"1. 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.
2. 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 plea that the post is not reserved. Such a candidate will be considered for promotion alongwith other candidates treating him 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.
3. 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 benefit of reservation in the future/further promotions, if any.
4. 50% limit on reservation will be computed by excluding such reserved category candidates who are appointed/promoted on their own merit."
16. Upon the basis of the aforesaid memo, the Ministry of Railways / Rail Mantralaya (Railway Board) issued the RBE 128 / 2012 dated 07.08.2002 [Anx.A-5]. In this letter, all 4 paras of A-4 are mentioned as it is. The Railway again issued a clarification RBE No. 103/2003 dated 20.06.2003 [Anx. A-6] in which following clarification was given:-
"Subject:- Reservation in promotion-Treatment of SC/ST candidates promoted on their own merit.
Reference:- Railway Board's letter No. 99-E(SCT)I/25/13 dated 07.08.2002 (RBE 127/2002) .........In this context, it is clarified that in selection posts, SC/ST candidates who are selected by applying the general standard and whose names In the select list / panel appear within the number of unreserved 10 vacancies are to be treated as selected on their own merit. For example suppose there are a total of 10 vacancies for which a panel / select list is to be prepared. Out of them, six vacancies are unreserved and four are reserved for SCs/STs. First six candidates in the select list/panel who have been selected by applying the general standard will be adjusted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC or ST category. SC/ST candidates selected for remaining four reserved vacancies, whether selected on general standard or by giving relaxation / concessions as per existing instructions on the subject shall be adjusted against reserved vacancies. Similarly, in case of non-selection promotions, SC/ST candidates who are senior enough to be within the number of unreserved vacancies and are included in the panel/selection list without getting any relaxation/concession will be treated as own merit candidates. The clarifications issued vide Board's letter No.97-E(SCT)I/25/24 dated 30.06.1999 (RBE 152/1999) are superseded by Board's letter of even number dated 07.08.2002 (RBE 172/2002). The principles laid down vide Board's letter of even number dated 07.08.2002 (RBE 172/2002) should be made applicable in all the promotions held after its issue. This disposes of S.C. Railway's reference No. P/(RES)171/Policy/Vo.X dated 20.02.2003.
Clarifications vide Railway Board's letter No.99-E(SCT)I/25/13 dated 07.08.2002 (RBE 77/2005)"
17. In reference to Memo No. 36028/17/2001- Estt. (Res.) dated 11.07.2002 [Anx. A-4] the DOPT issued another Memo No. 36028 /17 / 2001
-Estt. (Res.) dated 31.01.2005 [Anx. A-7] and clarified that:-
"1.........
2. It is clarified that the O.M. No. 36028/17/2001- Estt. (Res.) dated 11.07.2002 takes effect from the date of its issue i.e. with effect from 11.07.2002. However, the cases were SC/ST candidates promoted on their own merit before 11.07.2002 have been adjusted unreserved points need not to be open.
3. It is also clarified that since the case of promotions by non-selection promotions are made on the basis of seniority-cum-fitness and the concept of merit is not involved in such promotions, the O.M. dated 11.07.2002 does not apply to the promotions made by non-selection method."
18. Following the Anx.7, The Railway Board issued letter No.99-E (SCT) -I / 25 /13 dated 06.05.2005, RBE - 77/2005 [Anx.A-8]. In this letter it was mentioned:-
"Subject:- Reservation in Promotion - Treatment of SC/ST candidates promoted on their own merit.11
Reference:- Board letter No. 99-E (SCT) I/25/13 dated 07.08.2002.
Please refer to Board's letters quoted above wherein it has been clarified that SC/ST candidates promoted on their own merit will be adjusted against unreserved points. In this connection it is further clarified that instructions contained inboard letters of even number dated 07.08.2002 and 20.06.2003 shall take effect from 07.08.2002. However, the cases where SC/ST candidates promoted on their merit before 07.08.2002 have been adjusted unreserved point need not to be reopened.
2. It is also clarified that since in a case of promotions by Non Selection promotions are made on the basis of seniority-cum-fitness and the concept of merit is not involved in such promotions, instructions contained in Board's letter dated 07.08.2002 and 20.06.2003 referred to above do not apply to the promotions made by Non Selection method."
19. When references been received from Zonal Railways / Production Units seeking clarifications as to how to regulate the promotions of SC/STs done by Non-selection method during the intervening period i.e.07.08.2002 to 06.05.2005, than Railway Board issued 2008-E(SCT) I 25/8 dated 29.01.2009 [RBE 19/2009] [Anx. A-9] as under:-
"Sub.: Reservation in promotions -Treatment of SC/ST candidate's promoted on their own merit.
Ref.: Board letter No. 99-E(SCT) I /25/13 dated 07.08.2002, 20.06.2003 and 06.05.2005.
Attention is invited to Board's letter dated 06.05.2005 referred to above clarifying that in case of promotions by Non-selection method, where promotions are made on the basis of seniority-cum-fitness and concept of merit is not involved in such promotions, instructions contained in Board's letters of even number dated 07.08.2002 and 20.06.2003 would not apply. In this connection references have been received from the Zonal Railways / Production Unite seeking clarifications as to how to regulate the promotions of SCs/STs done by Non-selection method during the intervening period i e. 07.08.2002 to 06.05.05.
2. The matter was under consideration in consultation with the Noda Ministry viz. Ministry of Personnel, Public Grievances and Pensions (Deparment of Personnel and Training) and it has since been decided that the instructions contained in Board's letter dated 06.05.2005 would take effect from 07.08.2002 However, the promotions which have already been finalised as per instructions existing prior to issue of Board's letter dated 06.05.2005 need not be disturbed. The SC/ST candidates who have been promoted during the period 07.08.2002 to 06.05.2005 by Non-selection method, by virtue of their seniority position in the feeder grade or otherwise, in excess of reservation quota prescribed for them are to be adjusted against the reserved vacancies arising in future.12
3. It is also clarified that senior SC/ST candidates coming in the normal zone of consideration against the posts to be filled by Non-selection method cannot be denied promotion on the ground that there is no reserved vacancy or there is excess representation of that particular reserved category. Thus SC/ST candidates may get promoted by Non-selection method in excess of reservation prescribed for them provided they fall within the normal zone of consideration as per their seniority position. However, such SC/ST candidates may be adjusted against reserved vacancies arising in future."
19.1 Therefore it is transpire from the above letter that while making promotions by the Non-selection method, in case reserved category vacancies were available, and then even those senior SC/ST candidates who were coming within the normal zone of consideration as per their seniority positions were to be promoted only against the reserved vacancies and not against unreserved ones.
20. Central Administration Tribunal, Madras Bench in O.A. No.900/2005 [S. Kalugasalamoorthy v/s. Union of India & Others] set aside the O.M. No.36028/17/2001-Estt. (Res.) dated 31.1.2005(Anx.A-7) and held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against quota reserved for SCs does not arise. The High Court of Judicature at Madras in the matter of UOI v/s S. Kalugasalamoorthy [WP No. 15926/2007] has upheld the decision of the Central Administrative Tribunal, Madras Bench. Therefore DOPT issued O.M. No. 36012/45/2005- Estt. (Reservation) dated 10.08.2010 [Anx.A-10]:-
"Subject: Reservation in promotion promoted on their own merit. Treatment of SC/ST candidates The undersigned is directed to refer to this Department's O.M.No.36028/17/2001-Estt. (Res.) dated 11th July, 2002 which clarified that SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will be adjusted against un-reserved points of the reservation roster and not against reserved points. It was subsequently clarified by this Department's O.M. No.36028/17/2001- Estt. (Res.) dated 31.1.2005 that the above referred O.M. took effect from 11.7.2002 and that concept of own merit did not apply to the promotions made by non-selection method.
2. Central Administration Tribunal, Madras Bench in O.A. No.900/2005 [S. Kalugasalamoorthy v/s. Union of India & Others] has set aside the O.M. No.36028/17/2001-Estt. (Res.) dated 31.1.2005 and held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against quota reserved for SCs does not arise. The High Court of Judicature at Madras in the matter of UO1 v/s S. Kalugasalamoorthy [WP No. 15926/2007] has upheld the decision of the Central Administrative Tribunal.13
3. The matter has been examined in the light of the above referred judgments and it has been decided to withdraw O.M. No. 36028 / 17 / 2001 - Estt. (Res.) dated 31.1.2005 referred to above. It is clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders will take effect from 2.7.1997, the date on which post based reservation was introduced."
21. Railway Board letter No.99-E (SCT) -I / 25 /13 dated 06.05.2005, RBE - 77/2005 [Anx.A-8] was based upon DOPT Memo No. 36028 /17 / 2001 -Estt. (Res.) dated 31.01.2005 [Anx.A-7]. Therefore when after the judgment of CAT Chennai (then Madras) and Chennai High court, DOPT withdraw O.M. No. 36028/17/2001- Estt. (Res.) dated 31.1.2005, the Railway Board too following the O.M. No. 36012/45/2005- Estt. (Reservation) dated 10.08.2010 [Anx.A-10], withdraw the earlier letters dated 06.05.2005 [No.99-E (SCT) -I / 25 /13] RBE-77/2005 (Anx.A-8). and 29.01.2009 [2008-E (SCT) I 25/8 dated 29.01.2009] RBE 19/2009 (Anx.A-9) by issuing the following "RBE 126/2010" [No. 99-E (SCT) I /25/13] dated 01.09.2010 [Anx.A-11]:-
"Sub:- Reservation in promotion- Treatment of SC/ST candidates promoted on their own merit.
Ref: (1) Board's letter No. 99-E(SCT)1/25/13 dated 07.08.2002 and 20.06.2003 and 06.05.2005.
(ii) Board's letter No. 2008-E(SCT)1/25/8 dated 29.01.2009.
Please refer to Board's letters quoted above wherein it has been clarified that SC/ST candidates promoted on their own merit will be adjusted against unreserved points. In this connection it was further clarified that instructions contained in Board's letters of even number dated 07.08.2002 and 20.06.2003 shall take effect from 07.08.2002.
2. Thereafter, vide Board's letter of even number dated 06.05.2005, it was clarified that since in the case of promotions by Non Selection method, promotions are made on the basis of seniority-cum-fitness and the concept of merit is not involved in such promotions, instructions contained in Board's letter dated 07.08.2002 and 20.06.2003 referred to above do not apply to the promotions made by Non Selection method.
3. The instructions on the above subject have since been reviewed by the Nodal Department i.e. DOP&T in the light of CAT/Madras order in OA No. 900/2005(S. Kalugasalamoorthy V/s UOI & others), upheld by Hon'ble High Court/Madras (WP No. 15926/2007). Based on the decision communicated by DOP&T in the matter, it is now clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders shall take effect from 14 21.08.1997, the date on which post based reservation was introduced on Railways. However, the staff already promoted prior to issue of this letter may not be reverted. Shortfall in the category of SCs/STs, if any, shall be made good through vacancies arising in future.
4. Accordingly, Board's letters dated 06.05.2005 and 29.01.2009 referred to above are withdrawn herewith.
5. The above instructions may be brought to the notice of all concerned and may be ensured that the same are strictly and scrupulously implemented forthwith."
22. In the case of K. Manorama v. Union of India, (2010) 10 SCC 323 : (2010) 2 SCC (L&S) 803 : 2010 SCC OnLine SC 1093 [29.09.2010], it was argued before the Supreme Court that since Respondent 3 had been selected on merits he should not be considered as occupying a Scheduled Caste seat. The Scheduled Caste vacancy must therefore go to the next Scheduled Caste candidate as per the order of merit, and the appellant was that next candidate. Respondent 4 (Mr K. Rajagopalan Nair) should not have been therefore promoted as an open category candidate and that post should have been allotted to the appellant. The appellant also relied upon the Railway Board Order dated 29-7-1993 in this behalf, which was issued to implement a Full Bench decision of the Tribunal at Hyderabad, which states that where ST/SC candidates were promoted on their own merit, their seniority should not be counted as reserved candidates. The Supreme Court observed as under:-
"17. As can be seen from this chart it was Respondent 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 be allotted to him keeping aside other candidates. Not only that, but he was placed at number one and Respondent 4 (having higher marks) was placed at number two. The Tribunal held that if Respondent 3 got marks lesser than that of Respondent 4, only then he can be said to be selected against Scheduled Caste point. The Tribunal did not realise 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 [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] judgment 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 an 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.
18. The appellant had argued before the High Court that the candidates who obtained 80% marks or above are to be placed at the top 15 indicating that they are to be selected irrespective of the community factor. In the appellant's submission Mr M. Siddiah had to be considered as one such candidate. Now the two relevant Rules 204.8 and 204.9 read as follows:........
19. It is to be noted, as seen from the mark which have been referred to earlier, that none of the candidates obtained more than 80% marks, and therefore, could not be considered as "outstanding" to be eligible on that footing. On this count also Mr. M. Siddiah's selection cannot be considered as one only on merit irrespective of the community factor."
22.1. Therefore the Supreme court held in the aforesaid case of K. Manorama (Supra) 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 an 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.
23. Therefore the Supreme Court completely negated the validity of O.M. dated 10.08.2010 [A-10] issued by DOPT and the Railway Board letter dated 01.09.2010 [A-11] issued upon the basis of aforesaid O.M. of DOPT. After the aforesaid judgment, The Railway Board made a request by letter dated 03.02.2011 [Anx.A-12], to DOPT to examine the matter and for seeking further directions. Anx.A-12 reproduced as:-
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) 99-E(SCT)1/25/13 New Delhi, dated .01.2011/ 3-2-2011 OFFICE MEMORANDUM Sub:- Reservation in promotion-Treatment of SC/ST candidates promoted on their own merit.
The undersigned is directed to refer to DOP&T's O.M No.36012/15/2005- sit (Res.) dated 10.08.2010 on the above subject. In this connection it may be mentioned at Zonal Railways are seeking clarification regarding Implementation of concept of merit for SC/ST candidates in the case of promotions by Seniority-cum-suitability in the light of observations made at para 14 of Hon'ble Supreme Court Order dt. 29-09-2010 copy enclosed for ready reference) in the Civil Appeal No.2379 of 2005 in case of K Manorama vs. JOI (Represented by General Manager. Southern Railway and others.)
2. Hon'ble Supreme Court in para-14 of its order, dated 29-09-2010 has observed that the principle that when a member belonging to Scheduled Caste gets selected in the open competitive field 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.16
3. In the light of Hon'ble Supreme Court judgement on the subject a number of CAT / Court cases are being filed challenging the Board's Instructions issued in pursuance of DOT&F's O.M dated 10.08.2010 regarding application of concept of merit in the promotions through seniority-cum-suitability.
4. Since DOP&T's O.M dated 10.08.2010 was based on the judgement of Hon'ble High Court of Madras, the matter may be examined urgently and further directions for implementation of DOP&T's OM dt.10-08-2010 may be advised to this Ministry so as to avoid litigations on the subject."
23.1. The case of Radhakrishan M. Satwani and others Vs. U.O.I., [O.A.No.162, 184 & 185 of 2011] decided on 08.08.2011 by D.B. of CAT Jabalpur bench at Indore M.P. was decided upon the bases of aforesaid letter O.M. dated 03.02.2011 (Anx.A-12) and in para 7 following direction was given to the respondents :-
"to take a final decision in the matter of seniority based on the fresh DOPT opinion, which may be given in due course of time and after such an opinion is received, the respondents shall take a final decision in the matter within a period of three months thereafter on the issue involved in these O.As as per law."
23.2 The case before D.B. of CAT Jaipur Rajasthan "Lokesh Kumar Saini and 9 others Vs. Union of India, O.A. No. 62 of 2011 decided on 26.11.2011 was related to the O.M. dated 10.08.2010 (A-10 in this case) and RBE 126/2010 (A-11 in this case). The Tribunal Said in para 4 :-
"Thus a comparison of Or No. 36012/45/2005-Estt (Res.) of the DOPT dated 10.08.2010 and RBE No. 126/2010 dated 14.09.2010 clearly shows that this RBE is, based on the facts given in the DOPTs O.M. dated 10.08.2010. Therefore, it can be easily concluded that the Railways have adopted the OM of the DOPT while issuing the RBE No. 126/2010. Since it is not disputed that the OM No. 36012/45/2005-Estt. (Res.) dated 10.08.2010 of the DOPT has been quashed by the Hon'ble High Court of Punjab.& Haryana in the case of Lachhmi Narain Gupca & Others vs. Jarnail Singh & Others (supra), therefore, the instructions issued vide RBE No. 126/2010 can also not survive. Therefore, any action taken by the respondents in pursuance to the RBE NO. 126/2010 dated 14.09.2010 as the O.M. of the DOPT No. 36012/45/2005-Estt (Res) dated 10.08.2010 has already been quashed. With regard to relief No. 2 & 3, respondents are directed to take further action in the matter ignoring the RAE No. 126/2010 dated 14.09.2010. It was stated at Bar that the judgment of the Hon'ble Punjab & Haryana High Court in the case of Lachhmi Narain Gupta & Others vs. Jarnail Singh & Others (supra) has been challenged in the Hon'ble Supreme Court by way of SLP. Therefore, these directions of the Tribunal are subject to the final outcome of the SLP filed in the Hon'ble Supreme Court."17
23.3 Against the aforesaid Judgment of CAT Jaipur, the D.B. of Rajesthan High Court also disposed of Civil Writ Petition No. 2773 of 2012 "U.O.I. and others Vs. Lokesh Kumar Saini and others" on 11.11.2013 with the following observation :-
"After taking note of the submissions made, this fact remains undisputed that para-3 of the circular, which has been referred to by the Id. Tribunal in para-3 of the order impugned dt.26.11.2011 of DOPT's order dt.10.08.2010 is the same which the petitioner has referred to in their circular RBE No.126/2010 dt.14.09.2010 and once the order of DOPT dt.10.08.2010 has been quashed & set aside by the High Court of Punjab & Haryana and SLP is pending before the Apex Court and interim protection has not been granted to the parties, in our considered view, it will be in the interest of justice that those who have been promoted prior thereto, may not be disturbed but at the same time further appointment/promotions, if allowed, ignoring the circular RBE No.126/2010 dt.14.09.2010, may create legal complications. However, the petitioner is at liberty to take further action after the final outcome of the pending SLP before the Apex Court or in terms of any interim direction, if passed by the Apex Court pending SLP, regarding appointment/promotion, etc. Counsel for respondents has brought to our notice that the circular RBE No.126/2010 dt.14.09.2010 has been issued from Railway Board and it is based on the DOPT's circular dt.10.08.2010 but as per his information still the exercise is being undertaken in terms of the circular dt.14.09.2010 in other Divisions of the Railways.
There is no need to pass any further order since the circular of RBE No.126/2010 dt.14.09.2010 has been taken note of by us and it cannot be given effect to pending SLP and is binding upon the Railways Administration, in particular."
24. Whether the post of Loco Piolet falls within the "Selection category" or "Non Selection Category"? This question was considered by the D.B. of this Tribunal in "Sunil Kumar Rajpoot etc. V. Union of India and others" O.A. No. 1502 of 2012 [alongwith O.A. No.1689 of 2013 S.N. Tiwari Vs. U.O.I., O.A. No. 1571 of 2012 Shambhu Nath Dwivedi Vs. U.O.I. and O.A. No. 145 of 2013 S.M. Haseeb Vs. U.O.I.] decided on 15.11.2014. In Para 18 of the aforesaid order it was Held:-
"18. We feel that the first issue which needs to be considered in the matter relates to the question whether the post of Loco Pilots falls within the "selection category" or "non-selection category. In fact, if the post talks within the non-selection category, the benefit of reservation in promotion cannot be extended to such a post. It is to be noted that the criteria of seniority cum suitability with prescribed bench mark envisages the requirement of certain minimum merit or satisfying a predetermination bench mark. Subject to fulfilling this requirement, the promotion is based on seniority. In fact in both the cases of seniority cum fitness and seniority cum merit, there is no requirement of assessment of comparative merit of candidates. In a non-selection post, if a candidate meets the "bench mark", as prescribed, whether in terms 18 of marks or assessment, there is no requirement of assessing the comparative merit of the candidates. The bench mark is considered as a mark of fitness and meeting this mark is enough. By introducing the criteria of seniority cum suitability with the prescribed bench mark for the Loco Pilots, the limited effect is that the eligibility of the candidates would be considered based upon the concerned candidate's meeting the required bench mark and he will be promoted based upon his seniority. Thus non-selection method is that which relies primarily on the fitness of the candidate to discharge duties of a post. Those who are considered lacking this fitness are liable to be rejected. In such cases the seniority of the candidate matters and not their comparative merit. Given the above position it is quite evident that subsequent to the reclassification of the post by factoring of the suitability criteria with the prescribed bench mark for the post of Loco Pilot, the post becomes a non- selection category post to which the benefit of reservation in promotion is not extendable. Notwithstanding this position, after the verdict in the case Nagaraj (Supra), reservation in promotion to both "selection" and "non-selection" post is not extendable till the prescribed pre-conditions are met."
25. In the aforesaid case, the D.B. also considered the Reservation in Promotion, and said:-
"29. Having regard to the clear, consistent and explicit view held by the Apex Court with regard to the question of reservation in promotion, it is apparent that unless the controlling factor of the compelling reasons stated in Article 16(4) are met, no reservation in promotion can be proceeded with by the State In case they take up a such exercise then in each case the State would have to require to place before the court the quantifiable data and satisfy the court that such reservation has become necessary on account of inadequacy of representation of SC/STs without affecting general efficiency in service. The concept of efficiency, backwardness and inadequacy of representation have to be identified and measured and that would be contingent upon the availability of relevant data. This would depend on numerous factors. Apparently, 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 these claims can be optimized, can only be done by the administration in the context of prevailing local conditions in public employment. If the State concerned fails to identify and measure the backwardness inadequacy and affecting of efficiency then even in the face of existing enabling provisions, reservation in promotion cannot be under taken."
26. Against the aforesaid Judgment passed by CAT, The Respondents file the Writ-A No. 64791 of 2014 "Union of India and 3 others Vs. Shambhu Nath Dwivedi and 16 others" (in respect of O.A. No.1571 of 2012), which was dismissed by the D.B. of Allahabad High Court on 04.12.2014. The D.B. observed:-
19"The Railway Board issued RB No. 126 of 2010 dated 01 September 2010 and provided that SC/ST candidates appointed by promotion on their own merit and seniority and not on account of reservation or relaxation of qualification will be adjusted against the unreserved points of reservation roster, irrespective of the fact whether promotion was made by selection method or non selection method with a direction that this shall take effect from 2 July 1997, (the date on which the post based reservation was introduced).
The Supreme Court in the case of K. Manorama Vs. Union of India represented by General Manager, South Eastern Railways and others (2010) 10 SCC 323 held as follows:-
"........Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field 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 the promotions effected on the basis of seniority-cum-suitability...."
Since the office memorandum dated 10 August 2010, issued by the Department of Personnel and Training as well as the order dated 01 September 2010, issued by the Railway Board was in direct conflict with the judgment rendered by the Supreme Court in K. Manorama (supra), the matter questioning the office memorandum dated 10 August 2010, issued by the Department of Personnel and Training was agitated before the Punjab and Haryana High Court, The Court considered the question of reservation in its judgment dated 15 July 2012 passed in Civil Misc. Writ Petition No. 13218 of 2009 (O & M), Lachhmi Narain Gupta and others Vs. Jarnail Singh and others. The Court held that the Circular dated 10 August 2010 was in direct conflict with the view taken by the Constitution Bench of the Supreme Court in the case of M. Nagraj and others Vs. Union of India and others AIR 2007 SC 71 and Suraj Bhan Meena Vs. State of Rajasthan (2011) 1 SCC 467.
In the case of M. Nagraj (supra) the Constitution Bench of the Supreme Court observed as follows:-
"Reservations in promotions even by Selection method cannot be automatic or resorted to mechanically, in the event, if any, government proposes to make reservation in promotion, it must first conduct an exercise in the nature of survey and collect quantifiable data to satisfy the Court that there was indeed a compelling need to resort to reservation on the grounds of lack of, or inadequate, representation or the class or community sought to be given the benefit of reservation, whereas in the case on hand no such exercise has been conducted by the petitioner".
Learned counsel for the petitioner has, however relied on Article 16(4-A) of the Constitution of India. Article 16(4-A) provides that nothing in this article shall prevent the State from making any provision for reservation or classes of posts in the services under the State in favour of the Schedules Castes and the Scheduled Tribes which, in the 20 opinion of the State, are not adequately represented in the services under the State.
The constitutional validity of Articles 16(4-A) & 16 (4-B) were challenged before the Supreme Court in M. Nagraj (supra). The principles laid down by the Supreme Court have subsequently been followed by the Supreme Court in several cases including U.P. Power Corporation Ltd. Vs. Rajesh Kumar and others (2012) 7 SCC 1. The Supreme Court laid down the following principles:-..............
(i) to (x)........
The petitioners continued with the policy of reservation in promotions as is clear from the letter dated 07 January 2014 and have not followed the conditions laid down by the Supreme Court in M. Nagraj (supra). The petitioners have made an attempt to protect the order of promotion only on the basis of the Bill proposed for amendment of Article 16(4-A) of the Constitution of India. This is not permissible so long as the Constitution is not amended. The policy adopted by the petitioners is in violation of the principles laid down by the Supreme Court in M. Nagraj (supra). The Tribunal has, therefore, interfered with the promotion orders issued by the Department and has set-aside the same with directions to the respondents to undertake a fresh exercise strictly in accordance with the principles laid down by the Supreme Court. We find no good reason to interfere with the order passed by the Tribunal. The writ petition is, accordingly, dismissed."
27. In the light of the judgment dated 04.12.2014 passed in Writ-A No. 64791 of 2014, another Writ-A No. 25200 of 2015 "Union of India and 3 others Vs. Sunil Kumar Rajpoot and 19 others" filed in respect of O.A. No. 1502 of 2012 by Union of India also dismissed by D.B. on 04.05.2015. The W.P.-A 16316 of 2014 and 16319 of 2014 filed in respect of O.A. No. 1689 of 2013 and O.A. No. 145 of 2013 were also dismissed by Allahabad High Court on 09.12.2014. The Review application filed on behalf of private respondents of reserve category in O.A. No. 1502 of 2012 was also dismissed by CAT Allahabad on 18.02.2015. It is stated in para 4.25 of O.A. that the Railways have filed SLP before Hon'ble Supreme Court against the orders passed in writ petitions arising from the order dated 15.11.2014, but only notices have been issued without granting any Stay order.
27.1. The O.A. No. 633 of 2014 was filed before C.A.T. Allahabad relating to issue of applying the principle of reservation in promotions to the post of Loco pilot (Goods/Diesel) in Allahabad Division of NCR was also allowed by D.B. of CAT on 31.03.2015 by following the Judgment dated 15.11.2014 passed in O.A. no. 1502 of 2012 and other connected matters. The Tribunal said in para 4:-
".......consequently the impugned panel dated 05.05.2014 (annexure-1) is set aside. The respondents are directed to take a decision in the matter in strict compliance of principle laid down by the Apex court, as broadly brought out in paragraphs No. 24, 25, 26 and 27 of the order dated 15.11.2014."21
28. The impugned action of the respondents to apply the principle of reservation to promotions even by Non-Selection Method, to a Non-Selection post such as that of Loco Pilot (Passenger), is based upon RBE No. 126/2010, dated 01.09.2010, which itself was based upon DOPT O.M. dated 10.08.2010. However, the High Court of Punjab and Haryana at Chandigarh, while dealing, inter alia, with the question of reservation in promotions, delivered a comprehensive and well-considered Judgement dated 15.07.2011 in Civil Writ Petition No. 13218 of 2009 (O&M) "Lachhmi Narain Gupta and others Vs. Jarnail Singh and others", quashing the D.O.P.&T O.Μ. dated 10.08.2010 [which had formed the basis of RBE No. 126/2010 dated 01.09.2010 (supra)] on the ground that the same was in direct conflict with the view taken by the Constitution Bench in M. Nagraj's case and Suraj Bhan Meena's case. The court followed the Apex Court's dictum in the case of M. Nagaraj's case (supra) and held as under:-
"38. When the principles laid down in the case of M. Nagaraj (supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005-(R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation In respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos. 5 and 6. The aforesaid fact has also been conceded by the respondent-Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STS In the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagaraj's case (supra) as well as in Suraj Bhan Meena's case (supra)".
29. If we see the RBE 161 of 2009 [Anx.A-1], it appear that one "scheme for filling up of vacancies as existed on 31.08.2009" also attached for showing "Revision of Classification of posts consequent upon merger of grades as a result of Implementation of Vth Central Pay Commission's Recommendations". In the aforesaid details at Sr. No. 14 the post of "Loco Pilot (Passenger) Gr. II / Motorman (5500-9000)" is mentioned. Entries are as under:-
1 S. No. TRANSPORTATION (POWER)DEPARTMENT 14 22 2 Category / Existing Scale "Loco Pilot (Passenger) Gr. II / Motorman (5500-9000)"
3 Existing mode of filling up 100% Promotion 4 Existing Classification Selection 5 Pay Band (Grade Pay) PB2 (4200) 6 Revised Position 100% Promotion Revised mode of filling up 7 Revised Position Suitability with Prescribed bench Revised Classification Mark.
8 Remarks A Candidate should Possess prescribed footplate experience.
Passing of Aptitude test, whenever prescribed and pre-promotional course / training consisting of written test, will be mandatory in case of Promotions to the post in grade pay Rs. 4200 wherever mode of promotions has been prescribed as suitability with prescribed bench mark.
30. Therefore it appear from the aforesaid details the previously classification was "Selection" but in revised classification it "Suitability with Prescribed bench Mark". In the aforesaid situation the post of "Loco Pilot (Passenger) Gr. II / Motorman (5500-9000)" will be treated as "Non-Selection post".
31. In the case of U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1 = (2012) 2 SCC (L&S) 289 = 2012 SCC OnLine SC 385 [27.04.2012] certain writ petitions were filed at the Lucknow Bench and they were being heard. They were filed at an earlier point of time and were being dealt with on merits by the Division Bench concerned. At that juncture, the Division Bench at Allahabad entertained Writ Petition No. 63127 of 2010 and decided [(2011) 3 All LJ 343]. The Allahabad Bench was of the view that without calling for a counter-affidavit from any of the respondents the writ petition could be decided. It was urged before the Lucknow Bench that the same was a binding precedent and, therefore, the Division Bench was bound to follow the same. But, the Bench hearing the writ petition declared the said decision as not binding and per incuriam as it had not correctly interpreted, appreciated and applied the ratio laid down in M. Nagaraj [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 : AIR 2007 SC 71. When the both appeals came before Supreme Court, the Court said:-
"16. We have reproduced the paragraphs from both the decisions in extenso to highlight that the Allahabad Bench was apprised about the number of matters at Lucknow filed earlier in point of time which were part-heard and the hearing was in continuum. It would have been advisable to wait for the verdict at Lucknow Bench or to bring it to the notice of the learned Chief Justice about the similar matters being instituted at both the places. The judicial courtesy and decorum 23 warranted such discipline which was expected from the learned Judges but for unfathomable reasons, neither of the courses were taken recourse to.
17. Similarly, the Division Bench at Lucknow erroneously treated the verdict of the Allahabad Bench not to be a binding precedent on the foundation that the principles laid down by the Constitution Bench in M. Nagaraj [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013 : AIR 2007 SC 71] are not being appositely appreciated and correctly applied by the Bench when there was reference to the said decision and a number of passages were quoted and appreciated albeit incorrectly, the same could not have been a ground to treat the decision as per incuriam or not a binding precedent. Judicial discipline commands in such a situation when there is disagreement, to refer the matter to a larger Bench. Instead of doing that, the Division Bench at Lucknow took the burden on themselves to decide the case."
18. In this context, we may profitably quote a passage from Shri Bhagwan v. Ram Chand [AIR 1965 SC 1767] : (AIR p. 1773, para 18) "18. ... It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."
19. In Sundarjas Kanyalal Bhatija v. Collector [(1989) 3 SCC 396 : AIR 1990 SC 261] while dealing with judicial discipline, the two-Judge Bench has expressed thus: (SCC p. 406, para 18) "18. ... One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned Single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure."
32. In S.I. Rooplal & Anr. vs. Lt. Governor through Chief Secretary Delhi & Ors (2000(1) SCC 644) the Supreme Court has held that the bench of a Tribunal is bound by the view taken by a coordinate bench of equal strength.
24Therefore in the light of aforesaid law, the decision of coordinate bench having binding effect upon subsequent bench dealing the same question. If the bench is not agree than matter should be referred to the larger Bench.
33. Applicant also filed the copy of RBE 117/2016 dated 30.09.2016 (No. 2016-E (SCT) I /25/8) in which, in the light of contempt Petition[C] No. 314 of 2016 in SLP[C] No. 4831 of 2012, upon the basis of Communication & advised of Learned Solicitor General of India, issued the instructions:-
"In view of the above assurance, received from the Ld. Solicitor General of India, it is advised that Railway Board's RBE No. 126/2010 dated 01.09.2010, is held in abeyance with immediate effect till further advice, and all further promotions of reserved category persons to unreserved posts will now be made by ignoring Railway Board's RBE No. 126/2010 dated 01.09.2010 which in turn was based upon the DOP&T's OM dated 10.08.2010 & under reference No. (i) & (ii) above. However, all promotions order henceforth shall be subject to outcome of the main SLPs and the above mentioned contempt petition which are still pending."
34. Therefore it appear from the aforesaid discussion that the post of Loco Pilot is a Non-selection post and for the aforesaid post the reservation in promotions is not available. Looking to the above mention circulars and judgments passed by CAT, High Court and Supreme Court it is established that as per present legal position stands today the RBE 77/2005 dated 06.05.2005 [Anx.A-7] and RBE 19/2009 dated 29.01.2009[Anx.A-9] stand revived and hold the field. It is clear that adjustment of SC/ST candidates against unreserved vacancies in the matter of promotion by Non-selection method is not possible and will be treated as illegal. Anx.A-7 and Anx.A-9 will be applicable to the promotion from the post of "Loco Pilot (Goods)" to "Loco Pilot (Passenger)".
35. Looking to the aforesaid conclusion it is not necessary to discuss the position of the reservation in promotion in case of "Selection method"
because the post under dispute is "Non-Selection" post. But because both parties argued upon the aforesaid issue and also cited various case laws, therefore for the purpose of academic discussion the matter may be considered.
36. In Indra Sawhney & Ors. v. Union of India & Ors.,1992 Supp (3) SCC 217, subject matter of dispute was related to the 27 per cent reservation in favour of backward classes. The Supreme Court was of the opinion that Article 16(4) of the Constitution of India does not provide for reservation in the matter of promotions. It was clarified that the judgment shall have prospective operation and shall not affect the promotions already made, whether made on regular or on any other basis. Reservation provided in the matter of promotions in the Central services or State services were directed to 25 be continued for a period of five years from the date of the judgment. By the Constitution (Seventy seventh Amendment) Act, 1995, which came into force on 17.06.1995, Article 16 of the Constitution was amended by insertion of Article 16(4-A), which then read as below:-
"Article 16(4A)-
Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State".
The amendment was made in view of the State's opinion that representation of the Scheduled Castes and the Scheduled Tribes ("SCs" and "STs") in services in the States had not reached the required level and that it was necessary to continue the existing dispensation by providing reservation in promotions. Therefore, the Government decided to continue the existing policy of reservation in promotions for the SCs and the STS, according reservation to the Statement of Objects and Reasons of the Constitution Seventy-seventh Amendment) Act, 1995.
37. In Union of India & Ors. v. Virpal Singh Chauhan & Ors., (1995) 6 SCC 684, the Supreme Court held that roster-point promotes who were given the benefit of accelerated promotion would not get consequential seniority.
38. Government was of the opinion that the concept of "catch-up" rule was not in the interest of SCs and STs in the matter of seniority on promotion, Article 16(4-A) was further amended by the Constitution (Eighty-fifth Amendment) Act, 2001 to give the benefit of consequential seniority in addition to accelerated promotion. At present, Article 16(4-A) reads as follows:-
" Article 16(4A)-
16(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State"
39. In the case of Indra Sawhney & Ors. v. Union of India & Ors.,1992 Supp (3) SCC 217, the Supreme Court also held that reservation contemplated in a year under Article 16(4) shall not exceed 50 percent. In practice, backlog vacancies were not included within the sealing of 50 percent reservation in a year. Therefore an office memorandum was issued on 29.08.1997 in which it was provided that according to "Indra Sawhney case"
26fifty percent limit applicable to the current as well as backlog vacancies. Thereafter when several representations received by Central Government than Article 16(4B) was inserted by the Constitution (Eighty-first Amendment) Act 2000. Article 16(4B) read as under:-
"Article 16(4-B):-
Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."
40. The validity of the above amendments made to Article 16 (4) was considered by five judges Constitution Bench of the Apex Court in M. Nagaraj & Others v. Union of India & Others, JT 2006 (9) SC 191 = 2006 (8) SCC 212 = 2007(1) SCC (L&S) 1013. The key issue that was identified and decided in M. Nagaraj (supra) is whether any constitutional limitation mentioned in Article 16(4) and Article 335 stood obliterated by the constitutional amendments resulting in Articles 16(4-A) and 16(4-3). Court upheld the constitutional amendments. The amendments were held to be enabling provisions. Court observed that the State is not bound to make reservation for SCs and STs in matters of promotion. However, if it wishes to exercise its discretion, the State has to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, In addition to compliance with Article 335 of the Constitution of India. The Court held that reservation in promotion per se is not unconstitutional. Therefore, it has upheld the provisions for reservation in promotion for Scheduled Castes and Scheduled Tribes with consequential seniority as contained in Article 16 (4A) and Article 16 (4B) of Constitution. But such reservation is subject to the condition that the State shall form its opinion that the Scheduled Castes and Scheduled Tribes are not adequately represented in the service. The relevant part of the Apex Court's judgment in the aforesaid case is as under:-
"122. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 SC/ST 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 of 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 27 breach the celling- limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."
41. The Supreme Court in "State of Tripura & Ors. v. Jayanta Chakraborty & Ors.[2018] 1 SCC 146" referred M. Nagaraj (supra) to a larger bench for reconsideration. Further, in State of Maharashtra & Anr. v. Vijay Ghogre & Ors.[2018]17 SCC 261, the Court thought it appropriate that the request for reconsideration of the judgment in M. Nagaraj (supra) should be heard by a constitution bench.
42. The request made for referring M. Nagaraj (supra) to a seven-judge bench was not entertained by 5 judges Bench of Supreme Court in judgment dated 26.09.2008 passed in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors., [2018] 10 SCC 396. In para 27 (of SCC) the court said:-
"28. Therefore, when Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament's power under Article 341 or Article 342. We are, therefore, clearly of the opinion that this part of the judgment does not need to be revisited, and consequently, there is no need to refer Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] to a seven-Judge Bench. We may also add at this juncture that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] is a unanimous judgment of five learned Judges of this Court which has held sway since the year 2006. This judgment has been repeatedly followed and applied by a number of judgments of this Court, namely:....."
However, the conclusion arrived at in M. Nagaraj (supra) relating to collection of quantifiable data showing backwardness of the SCs and the STs was held to be invalid as the same was contrary to a larger bench judgment of this Court in Indra Sawhney (supra), wherein it had been held by the Court that conditions of social and educational backwardness are presumed to be satisfied in case of SCs and STs as they are identified and grouped as such because of prior discrimination and its continuing ill effects. The Court rejected the remaining grounds of challenge to the decision in M. Nagraj (supra) and retreated that the State has to collect quantifiable data regarding inadequate representation of SCs and STs in the service of the state, if reservation is sought to be provided in promotions. Court again said in para 30 (of SCC) :-
"30. In fact, the tests laid down in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] for judging whether a constitutional amendment violates basic structure have been expressly approved by a nine-Judge Bench of this Court in I.R. Coelho v. State of T.N. [I.R. Coelho v. State of T.N., (2007) 2 SCC 1] (see paras 61, 105, and 142). The entirety of the decision, far from being clearly 28 erroneous, correctly applies the basic structure doctrine to uphold constitutional amendments on certain conditions which are based upon the equality principle as being part of basic structure. Thus, we may make it clear that quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] on the inadequacy of representation, which can be tested by the courts. We may further add that the data would be relatable to the cadre concerned."
43. In the above case of Jarnail Singh {Supra} the Supreme Court observed;-
"34. We have already seen that, even without the help of the first part of Article 16(4-A) of the 2012 Amendment Bill, the providing of quantifiable data on backwardness when it comes to Scheduled Castes and Scheduled Tribes, has already been held by us to be contrary to the majority in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] . So far as the second part of the substituted Article 16(4-A) contained in the Bill is concerned, we may notice that the proportionality to the population of Scheduled Castes and Scheduled Tribes is not something that occurs in Article 16(4-A) as enacted, which must be contrasted with Article 330. We may only add that Article 46, which is a provision occurring in the Directive Principles of State Policy, has always made the distinction between the Scheduled Castes and the Scheduled Tribes and other weaker sections of the people.
35. The learned Attorney General also requested us to lay down that the proportion of Scheduled Castes and Scheduled Tribes to the population of India should be taken to be the test for determining whether they are adequately represented in promotional posts for the purpose of Article 16(4-A). He complained that Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] ought to have stated this, but has said nothing on this aspect. According to us, Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1] , there may be certain posts right at the top, where reservation is impermissible altogether. For this reason, we make it clear that Article 16(4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. For this purpose, the contrast of Articles 16(4-A) and 16(4-B) with Article 330 of the Constitution is important."29
36. Thus, we conclude that the judgment in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1] is held to be invalid to this extent".
44. When some High Courts have dealt with matters where reservation in promotions provided by the Central Government and the State Governments to SCs and STs have been assailed as being Voilative of the law laid down by Supreme Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] than matter reached to the Supreme Court in Jarnail Singh v. Lachhmi Narain Gupta, (2022) 10 SCC 595 : 2022 SCC OnLine SC 96 = 2022 LiveLaw (SC) 94 (decided on 28.01.2022). A direction was given to the Advocates-on-Record appearing for each State to submit a note to the learned Attorney General for India, identifying the issues involved in their respective cases. The learned Attorney General for India was requested to hold a conference with the counsel appearing in the matters to finalise the issues for determination and a list of issues with reference to each State was directed to be prepared thereafter. A note was submitted by the learned Attorney General formulating issues that arise for our consideration. Court was informed that the cases in this batch of matters can be bifurcated into eleven categories. The learned counsel appeared for the parties were requested to make submissions on the issues that had been identified by the learned Attorney General. After considering the issues identified by the learned Attorney General and other learned counsel and after hearing them, the following six points were formulated in para 11 by the Three Judges Bench for determination:-
(1) What is the yardstick by which, according to M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&) 1013] , one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment? (2) What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected? (3) Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Article 16(4-A)?
(4) Should there be a time period for reviewing inadequacy of representation?
(5) Whether the judgment in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] can be said to operate prospectively?30
(6) Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by this Court in B.K. Pavitra v. Union of India [B.K. Pavitra v. Union of India, (2019) 16 SCC 129] ["B.K. Pavitra (2)"]?
The bench referred the various judgments and held in para 67 onward:-
"67. Collection of quantifiable data for determining the inadequacy of representation of SCs and STs is a basic requirement for providing reservation in promotions, as laid down by this Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . The unit for the purpose of collection of data is a cadre, according to M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] . For the purpose of collection of quantifiable data for providing reservation in promotions, the entire service cannot be taken to be a unit and treated as a cadre, as already stated. The structure of services in the State of Karnataka is along the same lines as that of services in the Central Government. Services are divided into "groups", which are further bifurcated into cadres. There is no confusion that a cadre is not synonymous with a "group".
68. The first term of reference for the Ratna Prabha Committee was to collect data cadre-wise. The conclusion of this Court in B.K. Pavitra (2) [B.K. Pavitra v. Union of India, (2019) 16 SCC 129] that the expression "cadre" has no fixed meaning in service jurisprudence is contrary to the judgments of this Court, which have been referred to above while answering Point 2. In clear terms, M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] held that the unit for collection of quantifiable data is cadre, and not services as has been held in B.K. Pavitra (2) [B.K. Pavitra v. Union of India, (2019) 16 SCC 129]. Article 16(4-A) of the Constitution enables the State to make reservation in promotions for SCs and STs, which are not adequately represented in the services of the State. However, the provision for reservation in matters of promotion is with reference to class or classes of posts in the services under the State. That "groups" consist of cadres is a fact which was taken into consideration by this Court in B.K. Pavitra (2) [B.K. Pavitra v. Union of India, (2019) 16 SCC 129] . The conclusion that the collection of data on the basis of "groups" is valid, is contrary to the decisions of this Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] .
69. The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a "group", which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate 31 for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a "group", is the unit and the data has to be collected with respect to each cadre. Therefore, we hold that the conclusion of this Court in B.K. Pavitra (2) [B.K. Pavitra v. Union of India, (2019) 16 SCC 129] approving the collection of data on the basis of "groups" and not cadres is contrary to the law laid down by this Court in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] .
70. It is made clear that we have not expressed any opinion on the merits of any individual case as we have only answered the common issues that were formulated after hearing the parties."
45. Again in its judgment in Suraj Bhan Meena and Another v. State of Rajasthan and Others (2011) 1 SCC 467, the Apex Court reiterated the conditions precedent for reservation, of posts in promotion as inadequacy of representation of members of SCs and STs and ascertainment of the necessity of such reservation. Further, the said judgment held the notifications providing for promotion of members of SCs and STs with consequential seniority issued by State Government without first acquiring quantifiable data regarding inadequacy of representation of SCs and STs in public services has been rightly set aside by High Court.
46. In U.P. Power Corporation Ltd. v. Rajesh Kumar & Others, 2012 (4) SCALE 687 = (2012) 7 SCC 1 = (2012) 2 SCC (L&S) 289 = 2012 SCC Online 385 decided on 27.04.2012, the Apex Court has held that fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj's case (supra) is a categorical imperative. The relevant part of the said judgment is as under:-
"41. As has been indicated hereinbefore, it has been, vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (11) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation In promotion with consequential seniority and have given the stamp of approval to the Act 32 and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent, have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein."
47. A Full Bench of CAT [Principle Bench Delhi] also 'considered the issue in order dated 02.12.2010 passed in All India Equality Forum and Others v. Union of India and Others OA No. 2211/2008. The said order has also directed the Respondent Railways therein not to give accelerated promotion and consequential seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which Article 16(4A) of the Constitution is to operate, are complied with. Court observed:-
"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 compliance of pre-conditions, as no 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 riot 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 33 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".
48. The issue of reservation was also involved and dealt in O.A. No. 755 of 2012 [along with O.A. No. 2058 of 2012, 3603 of 2012 and 2483 of 2013] decided by D.B. of Principle Bench CAT Delhi on 22.04.2014. The orders of promotions passed following the policy of reservation in promotion, without satisfying the criteria laid down by the Supreme Court have been set aside. The tribunal referred the cases of M. Nagraj (Supra), Suraj Bhan Meena (Supra), U.P. Power Corporation Ltd. (Supra), All India Equality Forum and others Vs. U.O.I. and others, O.A. No. 2211 of 2008 decided by Full Bench of CAT Delhi on 02.12.2010, Laxmi Narayan Gupta Vs. Jarnail singh etc. CWP No. 13218 of 2009 (O&M) decided by Punjab & Haryana High Court on 15.07.2011(Supra), and K. Manorama Vs. U.O.I. (Supra) and held in para 20 and 21 as under :-
"20. The Apex Court has also considered the questions (i) when a Scheduled Caste candidate competes for a non-reserved post and is selected whether he should be counted against the quota reserved for Scheduled Castes or not and (ii) when the senior-most among eligible candidates belongs to a Scheduled Caste, on being promoted, whether he should be treated as an open category candidate or to be counted against the quota for Scheduled Caste in its judgment in K. Manorama Vs. U.O.Ι. represented by General Manager, Southern Railway and Others 2010 (10) SCC 323 [decided on 29.09.2010. The Apex Court has categorically stated that "the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field 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".
21. In view of the above facts and law laid down by the Apex Court and followed by different High Courts and Benches of this Tribunal all these Original Applications are allowed. Consequently, (1) the impugned order dated 30.12.2011 in OA No. 755/2012 is quashed and set aside. We also direct the Respondents to fill up the vacancies of Passenger Guards strictly in accordance with the seniority subject to the rejection of unfits without allowing reservation.
34(ii) the impugned panel dated 28.12.2010 in OA No. 2058/2012 is quashed and set aside to the extent that the Applicants' names have not been included therein. We also quash 'and set aside the order dated 25.04.2012 rejecting the claims of the Applicants for interpolation in the aforesaid panel dated 28.12.2010. We further direct the Respondents to fill up the vacancies of Loco Pilots Goods strictly in accordance with the seniority subject to the rejection of unfits without allowing the reservation.
(iii) the impugned order dated 16:10.2012 In OA No. 3603/2012 is quashed and set aside to the extent that the vacancies of Mail Train Loco Pilots have been filled by promoting junior staff belonging to SC/ST category in violation of the law laid down by the Supreme Court. We also direct the respondents to fill up the vacancies of Mail Train Loco Pilots strictly in accordance with the seniority subject to the rejection of unfits without allowing any reservation.
(iv) the impugned order dated 09.07.2013 in OA No.: 2483/2013 is quashed and set aside to the extent that the vacancies of Loco Pilot Passengers have been filled up by reservation as in (OA No.3603/2012)."
49. Another D.B. of CAT Delhi in Shiv Dayal Sharma Vs. U.O.I. etc. decided on 25.04.2014 also taken the same view and said:-
"10. In view of the above facts and law on the subject, we allow this OA. Consequently, the Impugned order No.561E/ET- 3/ Passenger Guard / Promotion /12 dated 07.05.2013 passed by the Divisional Personnel Officer, North Central Railway, Allahabad is quashed and set aside to the extent that the Respondents have issued the aforesaid panel following reservation policy without fulfilling the conditions prescribed by the Apex Court in M. Nagarajs case (supra). We also direct the Respondents that till those conditions are fulfilled, they shall grant promotions without following reservation for SC/ST candidates. The Respondents shall also consider the Applicants for promotion to the post of Passenger Guards from the due date with all consequential benefits except back wages."
50. In the case of S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 = (2016) 1 SCC (L&S) 76 = 2015 SCC OnLine SC 764 [Dt. 27.08.2015] the Common issues "In the absence of policy decision taken by the State / rules framed pursuant to the enabling provision of Article 16(4-A) of the Constitution of India, whether a reserved category candidate promoted on the basis of reservation earlier than his senior general category candidate in the feeder category can claim consequential seniority in the promotional post?"
was involved. In para 9 Court said:-
"9. The concept of the "catch-up rule" and "consequential seniority" is judicially evolved concepts to control the extent of reservation. The 35 question of reservation and the associated promotion and the consequential seniority have been the matter of discussion in various decisions of this Court. The matter regarding reservation in promotions was considered by a nine-Judge Bench of this Court in Indra Sawhney v. Union of India [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , and this Court held that the reservation under Article 16(4) of the Constitution of India is confined only to initial appointment and cannot extend to reservation in the matter of promotion. In order to nullify the effect of the aforesaid dicta, there was an amendment to Article 16 by the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from 17-6-1995. Vide this amendment, after clause (4), clause (4-A) was inserted in Article 16 of the Constitution."
50.1 The Supreme Court mentioned the previous cases in paras 12 to 17 as under:-
"12. In Union of India v. Virpal Singh Chauhan [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] a question had arisen as to whether a person in SC or ST category who gets accelerated promotion because of reservation would also get consequential seniority in the higher post if he gets that promotion earlier than his senior in general category and this Court held that such an employee belonging to SC/ST category on promotion would not get consequential seniority and his seniority will be governed by the panel position. It was held as under : (SCC p. 701, para 24) "24. ... In short, it is open to the State, if it is so advised, to say that while the rule of reservation shall be applied and the roster followed in the matter of promotions to or within a particular service, class or category, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over his senior in the feeder category and that as and when a general candidate who was senior to him in the feeder category is promoted, such general candidate will regain his seniority over the reserved candidate notwithstanding that he is promoted subsequent to the reserved candidate. There is no unconstitutionality involved in this. It is permissible for the State to so provide."
13. The decision in Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] led to another Constitution Amendment and Parliament enacted the Constitution (Eighty-fifth Amendment) Act, 2001 whereby clause (4-A) of Article 16 was further amended enabling the State to make a provision for reservation in matters of promotion with consequential seniority. Amended clause (4-A) reads as under:.....
The Eighty-fifth Amendment was made effective retrospectively from 17-6-1995, that is, the date of coming into force of the original clause (4-A) of Article 16 of the Constitution of India.
3614. In Ajit Singh Januja v. State of Punjab [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] , by placing reliance on the principle laid down in Indra Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and also the Constitution Bench judgment in R.K. Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , a three-Judge Bench accepted the principle of the "catch-up rule" as laid down in Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] observing that the balance must be maintained in such a manner that there was no reverse discrimination against the general category candidates and that any rule/circular or order which gives seniority to the reserved category candidates promoted at the roster point would be violative of Articles 14 and 16 of the Constitution of India.
15. In Jagdish Lal v. State of Haryana [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] , another three-Judge Bench opined that seniority granted to the Scheduled Caste and Scheduled Tribe candidates over a general category candidate due to his accelerated promotion does not in all events got wiped out on promotion of general category candidate.
16. In Ajit Singh (2) v. State of Punjab [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , the Constitution Bench was concerned with the issue whether the decisions in Virpal Singh Chauhan [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ajit Singh Januja case [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] which were earlier decided to the effect upholding the "catch-up rule", that is, the seniority of general category candidates is to be confirmed or whether the later deviation made in Jagdish Lal case [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 :
1997 SCC (L&S) 1550] against the general category candidates. In Ajit Singh (2) case [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 :
1999 SCC (L&S) 1239] , inter alia, the following points arose for consideration:
(i) Can the roster-point promotees count their seniority in the promoted category from the date of their continuous officiation vis-à-vis general candidates who were senior to them in the lower category and who were later promoted to the same level?
(ii) Have Virpal [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ajit Singh [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] been correctly decided and has Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] been correctly decided?
(iii) Whether the "catch-up" principles are tenable?37
17. The Constitution Bench in Ajit Singh (2) case [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] held that Articles 16(4) and 16(4-A) did not confer any fundamental right to reservation and that they are only enabling provisions. Overruling the judgment in Jagdish Lal case [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] and observing that rights of the reserved classes must be balanced against the interests of other segments of society in para 77, this Court held as under : [Ajit Singh (2) case [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , SCC p. 246] "77. We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post--vis-à-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate--he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal [Union of India v.
Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 :
(1995) 31 ATC 813] and Ajit Singh [Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] have been correctly decided and that Jagdish Lal [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] is not correctly decided. ....."
50.2. In the aforesaid S. Panner Selvam case (Supra) the Court placed reliance upon Nagraj Case (Supra) and observed in para 36:-
"36. In the absence of any provision for consequential seniority in the rules, the "catch-up rule" will be applicable and the roster-point reserved category promotes cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4-A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotes and the judgment of the Division Bench cannot be sustained."
51. In the case of Union of India v. Pushpa Rani, (2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851 : 2008 SCC OnLine SC 1145 [Dt. 29.07.2008] the Court define the word "Cadre" and mentioned various case laws in the following words:-
"20. In view of the pronouncement of the Constitution Bench, there cannot be any doubt that the Railway Board and General Managers are empowered to frame rules for regulating the recruitment and conditions of service of the employees.
21......38
22. A conjoint reading of Para 103(7) of the Code, Para 103(iii) of the Railway Establishment Manual and Circular R.B.E. No. 113/97 makes it clear that in the Railways, the term "cadre" generally denotes the strength of a service or a part of a service sanctioned as a separate unit. However, for the purpose of roster, a wider meaning has been given to the said term so as to take within its fold the posts sanctioned in different grades. The reason for giving this enlarged meaning to the term "cadre" is that posts in the railway establishment are sanctioned with reference to grades. Even temporary, work-charged, supernumerary and shadow posts created in different grades can constitute part of the cadre.
23. In the service jurisprudence which has developed in our country, no fixed meaning has been ascribed to the term "cadre". In different service rules framed under proviso to Article 309 of the Constitution as also rules framed in exercise of the powers of delegated legislation, the word "cadre" has been given different meaning.
24. In A.K. Subraman v. Union of India [(1975) 1 SCC 319 : 1975 SCC (L&S) 36] a three-Judge Bench of this Court while interpreting the provisions contained in Central Engineering Service, Class I, Recruitment Rules, 1954, observed as under: (SCC p. 328, para 20) "20. ... The word 'grade' has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts."
26. In State of Maharashtra v. Purshottam [(1996) 9 SCC 266 : 1996 SCC (L&S) 1225] it was held that "cadre" means unit of strength of a service or a part of it as determined by the employer.
25. In Chakradhar Paswan (Dr.) v. State of Bihar [(1988) 2 SCC 214 :
1988 SCC (L&S) 516 : (1988) 7 ATC 104] it was observed as under:
(SCC pp. 215-16) "In service jurisprudence, the term 'cadre' has a definite legal connotation. It is not synonymous with 'service'. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the service. The first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. Therefore, for the first vacancy of the Deputy Director (Homeopathic), a candidate belonging to the Scheduled Caste had therefore to compete with others."39
27. The argument of Shri Sushil Jain that Para 4(b) of Circular R.B.E. No. 113/97 dated 21-8-1997 is ultra vires the definition of the word "cadre" contained in Para 103(7) of the Code completely ignores the stark reality that in the railway establishment the posts are sanctioned with reference to grades which term means sub-division of a class, each bearing a different scale of pay. Therefore, the posts sanctioned in different grades would constitute independent cadres and we see no reason why a restricted meaning should be given to the term "cadre" for the purpose of implementing the roster."
52. If in the light of aforesaid established law from M. Nagraj's case and later on various other cases stated above then it is found that the respondent Nos. 1 to 5 said in their counter affidavit that assessment sheets (CR-1) prepared by the Railway Administration and the vacancies have been divided according to that UR-68, SC-15 and ST-16 out of total 99 posts. In Para-8 of the counter affidavit, the respondents mentioned as under:-
"That, from bare perusal of assessment sheet, 16% posts are available in favour of ST although no person is working in this cadre for which promotions are going to be made. The railway administration considered the claim of ST about grant of benefit of reservation in present matter while adequate representation of SC are available in present cadre of Loco Pilot (Passenger) but person belonging to ST are not available. Hence, railway administration has decided to give benefit of reservation to ST upto the extent of 16 persons although only 13 persons are working of ST in present division as Loco Pilot (Passenger) and allied categories. Hence, the contention of applicants that railway administration has not considered question of inadequacy of representation before consideration of claim of promotion of ST is not correct."
53. It is said in Para-21 that as per Chapter-IX (9.1) of Government of India Grosser on reservation for SC and ST the percentage of reservation in favour of SC and ST are 15% and 7-1/2% respectively in promotion to non-selection post is to be maintained.
54. The aforesaid contention of the respondents is not acceptable. It is clear from the aforesaid discussion that the reservation and promotion are not available in the non-selection post. The exercise as accepted by M. Nagraj's case and other cases has not been done. The pleadings of the respondents show that the required exercise has not been completed by the State. Therefore, the contention of the respondents cannot be accepted that they are justified for dividing the 99 posts between UR, SC and ST.
55. Therefore, it appears that DoP&T letter (Annexure A-4) was issued on 11.07.2002 and by following the aforesaid letter the Railway Administration issued the letter dated 07.08.2002 (Annexure A-5) and 20.06.2003 (Annexure A-6). The DoP&T again clarified their letter (Annexure A-4) by memo dated 31.01.2005 (Annexure A-7) following which, the Railway 40 again issued the memo dated 06.05.2005, RBE-77/2005 (Annexure A-8) and RBE-19/2009 dated 29.01.2009 (Annexure A-9). The Annexure A-7 set aside by the Chennai Bench of the CAT and the order was confirmed by the High Court of Madras. Thereafter, the DoP&T withdrew the memo and issued Annexure A-10 on 10.08.2010. After Annexure A-10, The Railway withdrew the memo Annexure A-8 and A-9, but after the judgment of Punjab and Haryana High Court, in the present position, the memo Annexure A-8 and A-9 survived. As per the revised classification annexed (Annexure A-1), the post of Loco Pilot (Passenger) is a non-selection post for which the reservation in promotion is not permissible. Even for the sake of argument, if the post is treated as a selection post even then the complete exercise as expected from the Supreme Court in M. Naragraj and the other subsequent cases has not been completed. Therefore, at present the Railway cannot grant the reservation in promotion for the aforesaid post.
56. Therefore, the Original Application is allowed and the respondents are directed:-
(i) To make proposed promotion strictly on the basis of seniority-cum-suitability, as per the seniority as on 01.02.2015 reflected by letter dated 17.02.2015.
(ii) The respondents will make the proposed promotion on the basis of RBE 77/2005 dated 06.05.2005 (Annexure A-8) and RBE-19/2009 dated 29.01.2009 (Annexure A-9) and not on the basis of RBE-126/2010 dated 01.09.2010 (Annexure A-11).
(iii) The promotion can be granted strictly on the basis of seniority-cum-suitability as per the seniority of the candidates irrespective of their caste/tribe status.
(iv) Both parties shall bear their own costs.
57. All pending M.As, if any, shall be treated as disposed of. Registry will take appropriate action in this regard for removing the M.As.
(Dr. Sanjiv Kumar) (Justice B.K. Shrivastava)
Member (A) Member (J)
Sushil