Central Administrative Tribunal - Jabalpur
Rakesh vs M/O Railways on 30 July, 2018
1 OA No.203/00640/2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING : BILASPUR
Original Application No.203/00640/2015
Jabalpur, this Monday, the 30th day of July, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Rakesh S/o Late R.N.Vishwakarma, presently
Working as Helper II OHE/ RPR, R/o Shanti Nagar,
Sector 3, Bihar Chhattisgarh-490021 -Applicant
(By Advocate -Shri A.V.Shridhar)
Versus
1. Union of India, through the General Manager,
South East Central Railway,
Bilaspur, Chhattisgarh-495004
2. Senior Divisional Personnel Officer,
South East Central Railway, Raipur Division,
Raipur, Chhattisgarh-492008
3. Assistant Divisional Electrical Engineer (TRD),
DRM Complex Raipur,
Chhattisgarh-492008
4. Ganvir Nitin Sawji, Working as Helper II (OHE),
O/o Senior Section Engineer,
Bhatapara, Chhattisgarh-493118
5. Amit Choudhary, Working as Helper II (OHE),
O/o Senior Section Engineer,
Bhatapara, Chhattisgarh-493118 -Respondents
(By Advocate -Shri R.N.Pusty)
(Date of reserving the order:-18.04.2018)
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2 OA No.203/00640/2015
ORDER
By Ramesh Singh Thakur, JM:-
This Original Application has been filed by the applicant challenging the notification dated 16.07.2015, whereby juniors of the applicant have been called for the Trade Test for filling up the post of Tech-Grade III (OHE) Wing by applying reservation in promotion.
2. The applicant has prayed for the following reliefs in this Original Application:-
"(8.1) That the learned Tribunal may kindly be pleased to call the entire records pertaining to the case of the applicant.
(8.2) That the Hon'ble Tribunal may kindly be pleased to quash the notification No. TRD/R/E-5/15-16/383 dated 16.07.2015 Annexure A/1.
(8.3) That, the Hon'ble Tribunal may kindly be pleased to direct the respondents to redraw the list of suitable candidates strictly in accordance with the seniority position of the applicant.
(8.4) Cost of the petition be awarded to the applicant.
(8.5) Any other relief which the learned Tribunal deems fit and proper may be awarded."
3. The brief facts of the case are that the applicant was initially appointed as Peon in the office of Senior Divisional Electrical Engineer (TRD), Raipur and thereafter vide order dated 05.04.2005, he was promoted as Trolley Man. The applicant was Page 2 of 12 3 OA No.203/00640/2015 further promoted as Senior Trolly Man in Elect/TRD Department on 29.01.2007 and vide office order dated 30.08.2012, the applicant was sent on intra Division transfer from SSE/OHE Raipur to Electrical TRD at SSE/OHE Deopt.
4. The applicant submits that the post of Sr. Trolley Man was surrendered, as a result, the applicant was declared surplus in the Electrical department. The applicant on redeployment, transferred and posted as Helper II (OHE) under SSE, Electrical (TRD) depot Raipur Division on 07.05.2013.
5. The applicant submits that his name appears at serial number 16 of the seniority list (Annexure A-2), whereas the name of private respondents Nos. 4 & 5 appears at serial number 20 & 22 respectively. However, in the suitability list at Annexure A-1, the name of private respondents Nos. 4 & 5 has been shown at serial number 18 & 19, leaving behind name of the applicant.
6. The main ground of challenge in this Original Application is that the respondents Nos. 4 & 5 were allowed to participate in the Trade Test, who are juniors to the applicant, which is a wilful deviance of the law laid down by the Hon'ble Supreme Court in the case of M. Nagaraj (infra).
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7. The respondents have filed their reply and in the preliminary submissions they submitted that the post of Technician Grade-III is a non-selection post and it is filled up with the feeder category of Helper Post. The eligibility list of 19 candidates working as Helper was made purely on seniority basis by applying the provisions contained in RBE No.126/10. The reference was made to the senior most candidates placed on the top of the seniority list of Helper-I and Helper-II according to their date of appointment. The name of the applicant was in 21st place of seniority list of Helper Grade I and II, as such, his candidature was not considered in the eligibility list for promotion to the post of Technician Gr. III.
8. The Trade Test was conducted during the period from 27.07.2015 to 30.07.2015. One unreserved candidate was remained absent and other 18 candidates were declared suitable for promotion to the post of Technician Grade III vide order dated 24.09.2015 (Annexure R-2). Based on the above suitability list, 18 candidates were empanelled vide order dated 24.09.2015 (Annexure R-3) for promotion to the post of Technician Grade III. Thereafter, vide order dated 05.11.2015, all 18 staffs have been promoted and posted to the post of Technician Grade-III.
9. The eligibility list for the promotion to the post of Technician Grade III was made out on the basis of seniority list of Page 4 of 12 5 OA No.203/00640/2015 Helper categories wherein 14 candidates have been found suitable against UR, 3 candidates were found suitable against roster point of SC and 1 candidate against the roaster point of ST vacancies. While drawing the suitability list, first preference has been given to the senior most candidates in Helper category who were placed on top of the seniority list according to their date of appointment.
10. It has been further submitted that by virtue of seniority position, one SC candidate has been considered against UR vacancy and occupied under UR vacancy. According to the above, the applicant being UR could not reach up to the vacancy position according to the seniority to be filled up under the unreserved categories. The applicant being the junior in the seniority position against the unreserved roster point and seniority of general candidates the applicant is having no locus-standi to claim for the promotion to the post of Technician Grade III.
11. It has also been submitted by the respondents that though the private respondents were placed at Serial No. 25 and 27 in Helper I and II category and are junior to the applicant, but it is also admitted fact that the private respondents have been considered for promotion to the post of Technician Gr. III against reserved roster point of vacancies. Even though if total 19 vacancies may be Page 5 of 12 6 OA No.203/00640/2015 treated to be unreserved, the applicant is having no locus standi to be considered, as he is placed at serial no.21 of the seniority list.
12. We have heard the learned counsel for the parties and carefully perused the pleadings and the documents available on record.
13. The issue involved in this Original Application is no longer res integra, as the same has already been decided by the Principal Bench of this Tribunal in Original Application No.3476/2013 (Ram Pher Yadav & others vs. Union of India and others) and other connected OAs vide order dated 22.01.2018. The order passed by the Principal Bench reads as under:
"All these batch of OAs are pertaining to the issue of reservations in promotions and hence are being disposed of by way of this common order.
2. Heard all the counsels for the parties and perused the pleadings on record.
3. In M. Nagaraj & Ors. Vs. Union of India & Others, (2006) SCC 212, the Constitution Bench of the Hon'ble Apex Court observed as under :-
"2. The facts in the above writ petition, which is the lead petition, are as follows.
Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union of India and others v. Virpal Singh Chauhan and others , Ajit Singh Januja and others v. State of Punjab and others (Ajit Singh-I), Ajit Page 6 of 12 7 OA No.203/00640/2015 Singh and others (II) v. State of Punjab and others , Ajit Singh and others (III) v. State of Punjab and others , Indra Sawhney and others v. Union of India , and M. G. Badappanavar and another v. State of Karnataka and others. Petitioners say that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, 83 OA No.3476/2013 and connected OAs violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. Petitioners say that the equality in the context of Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority. Petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). Petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. Petitioners say that in the case of Indra Sawhney5 decided on 16.11.1992, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion. Petitioners say that contrary to the said judgment delivered on 16.11.1992, the Parliament enacted the Constitution (Seventy- Seventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-Seventh Amendment) Act, 1995 is also challenged by some of the petitioners. Petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous...."
After referring to a series of authorities, the Court concluded as follows :
"121. The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.
122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to Page 7 of 12 8 OA No.203/00640/2015 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 breach the ceiling- limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (EightyFifth Amendment) Act, 2001.
125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.
4. In Suresh Chand Gutam Vs. State of Uttar Pradesh and Others, AIR 2016 SC 1321, a batch of Writ Petitions were preferred under Article 32 of the Constitution of India praying to issue a direction in the nature of mandamus commanding the respondent Government to enforce appropriately the constitutional mandate as contained under the provisions of Articles 16(4A), 16(4B) and 335 of the Constitution of India or in the alternative, for a direction to the respondents to constitute a Committee or appoint a Commission chaired either by a retired Judge of the High Court or Supreme Court in making survey and collecting necessary qualitative data of the Scheduled Casts and the Scheduled Tribes in the services of the State for granting reservation in promotion in the light of direction given in M. Nagaraj & Others v. Union of India & Others (supra). It was held as under:-
"43. Be it clearly stated, the Courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation. The Courts can test the validity of the same when they are challenged. The court cannot direct for making legislation or for that matter any kind of sub-ordinate legislation. We may hasten to add that in certain decisions directions have been issued for framing of guidelines or the court has itself framed guidelines for sustaining certain rights of women, children or prisoners or under-trial prisoners. The said Page 8 of 12 9 OA No.203/00640/2015 category of cases falls in a different compartment. They are in different sphere than what is envisaged in Article 16 (4-A) and 16 (4- B) whose constitutional validity have been upheld by the Constitution Bench with certain qualifiers. They have been regarded as enabling constitutional provisions. Additionally it has been postulated that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matter of promotions.
Therefore, there is no duty. In such a situation, to issue a mandamus to collect the data would tantamount to asking the authorities whether there is ample data to frame a rule or regulation. This will be in a way, entering into the domain of legislation, for it is a step towards commanding to frame a legislation or a delegated legislation for reservation.
44. Recently in Census Commissioner & others v. R. Krishnamurthy a three-Judge Bench while dealing with the correctness of the judgment of the high court wherein the High court had directed that the Census Department of Government of India shall take such measures towards conducting the caste-wise census in the country at the earliest and in a time-bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour, the court analyzing the context opined thus :-
"Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy-making by adding something to the policy by ways of issuing a writ of mandamus."
We have referred to the said authority as the court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued."
and accordingly, dismissed the Writ Petitions.
5. The categorical finding by the Hon'ble Apex Court in M. Nagaraj (supra), as explained in the aforesaid recent decision in Suresh Chand Gautam (supra), is that the State is not bound to make reservation for SCs/STs in matters of promotion and, however, if the State wishes to exercise the Page 9 of 12 10 OA No.203/00640/2015 discretion and make such provision, it has to collect quantifiable data showing backwardness of the Class and inadequacy of representation of that Class in public employment in addition to compliance with Article 335.
6. It is not in dispute that the respondents have not conducted the exercise as mandated by the Constitution Bench in M. Nagaraj (supra) and without conducting the same, no State/Authority can apply the rule of reservation in promotion. It is also not in dispute that the decision in M. Nagaraj (supra) is not reversed/modified/stayed in any other subsequent decision of the Hon'ble Apex Court till date. The learned counsel for respondents submits that since the issue of "whether the judgment of M. Nagaraj needs to be revisited or not" was referred to a Constitution Bench in the matter of The State of Tripura & Others Vs. Jayanta Chakraborty & Ors. in Civil Appeal Nos.4562-4564 of 2017 & batch dated 14.11.2017, the OA may be adjourned sine die till the Hon'ble Apex Court decides the said issue.
7. The Hon'ble Apex Court in its order dated 14.11.2017 in The State of Tripura & Ors. Vs. Jayanta Chakraborty & Ors. observed as under :-
"The questions posed in these cases involve the interpretation of Articles 16(4), 16(4A) and 16(4B) of the Constitution of India in the backdrop of mainly three Constitution Bench decisions - (1) Indra Sawhney and others v. Union of India and others 1992 Supp. (3) SCC 217, (2) E.V Chinnaiah v. State of A.P. and others (2005) 1 SCC 394 and (3) M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212. One crucially relevant aspect brought to our notice is that Nagaraj (supra) and Chinnaiah (supra) deal with the disputed subject namely backwardness of the SC/ST but Chinnaiah (supra) which came earlier in time has not been referred to in Nagaraj (supra). The question of further and finer interpretation on the application of Article 16(4A) has also arisen in this case. Extensive arguments have been advanced from both sides. The petitioners have argued for a re-look of Nagaraj (supra) specifically on the ground that test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney (supra) and Chinnaiah (supra). On the other hand, the counsel for the respondents have referred to the cases of (4) Suraj Bhan Meena and Another v. State of Rajasthan and others (2011) 1 SCC 467; (5) Uttar Pradesh Power Corporation Limited v. Rajesh Kumar and others (2012) 7 SCC 1; (6) S. Panneer Selvam and others v. State of Tamil Nadu and others (2015) 10 SCC 292; (7) Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others (2015) 12 SCC 308; and (8) Suresh Chand Gautam v. State of Uttar Pradesh and others (2016) 11 SCC 113 to contend that the request for a revisit cannot be entertained ad nauseam. However, apart from the clamour for revisit, further questions were also raised about application of the principle of creamy layer in situations of competing claims within the same races, Page 10 of 12 11 OA No.203/00640/2015 communities, groups or parts thereof of SC/ST notified by the President under Articles 341 and 342 of the Constitution of India."
2. Having regard to the questions involved in this case, we are of the opinion that this is a case to be heard by a Bench as per the constitutional mandate under Article 145(3) of the Constitution of India. Ordered accordingly. Place the files before the Hon'ble Chief Justice of India immediately.
3. Though the learned counsel have pressed for interim relief, we are of the view that even that stage needs to be considered by the Constitution Bench. The parties are free to mention the urgency before the Hon'ble Chief Justice of India."
8. In Ashok Sadarangani & Another Vs. Union of India (2012) 11 SCC 321, Hon'ble Apex Court held as under :-
"19. As was indicated in Harbhajan Singh's case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field."
9. As held in Ashok Sadarangani (supra), once the legal principle was decided by Hon'ble Apex Court and as long as the same is neither reversed nor modified by any other decision, the said settled principle has to be followed, irrespective of the fact that the same is pending before any higher forum or before a Larger Bench or before a Constitution Bench.
14. It is a settled principle of law that once the principle is declared by the Hon'ble Apex Court in a particular manner with retrospective implication, any contrary circulars, e.g. RBE No.126/2010, issued prior to or subsequent to the said declaration, are non-est and cannot be followed. In any event, in view of the referred categorical declaration of the law by the Hon'ble Apex Court in M. Nagaraj (supra), unless the mandatory exercise of collecting the quantifiable data is conducted, no authority or Government can follow the rule of reservation in promotions. Page 11 of 12 12 OA No.203/00640/2015 Since in the present case, no such exercise is conducted, the action of the respondents in following the rule of reservation in promotions is unsustainable.
15. Accordingly, this Original Application is allowed. The impugned suitability list dated 16.07.2015 (Annexure A-1) is quashed and set aside to the extent it pertains to private respondent Nos.4 & 5. The official respondents are directed to redraw the list of suitable candidates for grant of promotion to the post of Technician III by considering the case of the applicant, without the element of rule of reservation, and if found suitable grant him all consequential benefits, within a period of three months from the date of communication of this order. However, we make it clear that the financial benefits drawn by the respondents Nos.4 & 5 consequent to their promotion as Technician III shall not be recovered. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
rn/am
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