Central Administrative Tribunal - Chandigarh
By : Mr. A.K. Vashista vs Rajesh Kumar & Others (Civil Appeal No. ... on 24 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
(CIRCUIT BENCH: SHIMLA)
O.A.No.371-HP-2012 Decided on : 24.12.2013
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MS. RAJWANT SANDHU, MEMBER (A)
Gian Singh Verma son of late Shri S.R. Verma, resident of Village Ragyan, Post Office Bhont, Tehsil & District Shimla (H.P).
By : Mr. A.K. Vashista, Advocate.
Applicant
1.Union of India through Secretary Defence, New Delhi.
2.Deputy Chief of Army Staff (Inter Services & Training), Integrated Head Quarter of Ministry of Defence (Army), South Block, New Delhi.
3.Director General of Staff Duties, Integrated Headquarter of Ministry of Defence (Army) South Block, New Delhi.
4.General Officer, Commanding-in-Chief, Army Training Command, Shimla (H.P).
5.Shri Rakesh Kumar, Stenographer, O/o I.F.A., Army Training Command, Shimla (H.P).
By : Mr. K.S. Rathore, Advocate for Respondents No.1-4.
Mr. Virender Sharma, Advocate, for Respondent No.5.
Respondents
O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)
1. The applicant has filed this Original Application challenging the order dated 28.9.2012 vide which his representation for grant of benefit of judgment dated 27.04.2012 in the case of U.P. Power Corporation Limited Versus Rajesh Kumar & Others (Civil Appeal No. 2608 of 2011) declaring that there cannot be any reservation in promotion with consequential seniority unless quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe Communities in public services is acquired, as held in the case of M. Nagaraj v. Union of India, 2007(4) SCT, 664, has been rejected on the sole premise that the said decision applicable to the U.P. State Government only. In case of Central Government employees, a notification for implementation of Honble Supreme Court order is notified by Nodal Agency i.e. DOP&T and since notification has been issued on the subject matter, it is not feasible to comply with the dictum of Honble Supreme Court.
2. The law on reservation in promotion is well settled. In the celebrated case of M. Nagraj Vs. Union of India etc. 2007(4) SCT, 664, it has been held by the Constitution Bench of Honble Supreme court that unless there is a specific provision in the rules for grant of seniority on accelerated promotions, the catch-up-principle has to be applied to restore the seniority of the general category candidates who are promoted subsequently. It has been further held that it would be mandatory on part of the State Government to undertake proper exercise in case any rule was required to be framed by it to extend the benefit of enabling provision in the Constitution by way of 77th and 85th amendment i.e for reservation in promotion with consequential seniority. Hence to grant such benefit under Article 16(4-A) and for the purpose of compliance with Article 335 of the Constitution of India the respective State Government has to quantify the figures of Scheduled Castes and Scheduled Tribes candidates to enable it to arrive at a decision about the level of reservation in matter of promotion etc. and State has also to show that it had to pass such orders for compelling reasons, such as, backwardness, inadequacy of representation of a caste in public employment and over all administrative inefficiency.
3. In the case of Suraj Bhan Meena & Another Vs. State of Rajasthan & Others (SLP no. 6385 of 2010) decided on 7-12-2010, the Honble Apex Court dealt with the question, as to whether the conditions enumerated in M. Nagarajs case (supra) applied to cases of seniority and promotion after 17-6-1995 from which date amendment was declared to be valid. The Honble Supreme Court has held that the State is not bound to make reservation for SC and ST in matter of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for purpose of compliance with Article 335 of the Constitution of India. Honble court upheld the quashing of the notifications dated 28-12-2002 and 25-4-2008 issued by State of Rajasthan providing for consequential seniority and promotion to members of SCs and STs in the light of fact that the exercise enumerated in the M.Nagarajs case had not been carried out before granting benefit of reservation in matter of promotion and consequential seniority to the reserved categories.
4. Honble High Court of Punjab and Haryana in CWP No. 13218 of 2009 (Lachhmi Narain Gupta & Others Vs. Jarnail Singh and Others), decided on 25.7.2011 has quashed the action of authorities in providing reservation in promotion w.e.f. 2.7.1997, as no exercise has been carried out by the relevant dispensation in providing reservation in view of the various judgments of the Honble Supreme Court of India.
5. The issue was again thrashed by a Bench of this Tribunal in O.A.NO. 38/CH/2011 - Rajesh Rai & Another Vs. Union of India & Others, decided on 02.05.2012, holding as under :-
4. There can be no dispute about the contours of the law laid down by the Honble Apex Judicial Dispensation in M. Nagraj case. There was a categorical pronouncement therein that the reservation in promotion will be available to the members of the SC/ST only if the relevant exercise has been undertaken by the competent authority to conclude that there are compelling reasons for reservation concerning backwardness of Scheduled Caste category which would warrant grant of promotion to the Members of the Scheduled Castes/Scheduled Tribes; and (b) the grant of promotion to them would not in any way adversely affect the administrative efficiency and working of the office.
5. The applicants herein made a precise averment in the course of para 4 (12) to the effect that no exercise has been undertaken by the respondent- State as directed by the Honble Supreme Court in the case of M. Nagrajs case. The further averment, in the course of that para, is extracted hereunder:-
Even after the judgment in the case of M. Nagraj, referred to above, and issuance of the above directions, the State has failed to conduct any exercise in terms of the aforesaid judgment. It has not been determined whether the reservation created in terms of the Article 16(4) of the Constitution of India through various instructions issued by the official respondents from time to time, is in consonance with the terms laid down in the case of M. Nagrajs case.
It would be pertinent to note that the view aforementioned has recently been reiterated by the Honble Apex Court in the case of U.P. Power Corp. Ltd. Vs. Rajesh Kumar & Others (C.A. No. 2608 of 2011).
6. The corresponding para of the written statement does not controvert the factual accuracy of that averment. Apart there from, the applicant also resorted to the RTI Act to ascertain the relevant information (Annexure A-20). The response offered by the Govt. of India, Ministry of Personnel, Public Grievances & Pension, DOPT to the query raised by the applicants herein under RTI is Annexure A-21. The contents thereof are extracted hereunder:-
It is informed that in terms of RTI provisions, the CPIO is required to furnish the information that already exists. To create any information or to define or to interpret or to clarify/confirm any information is beyond the scope of RTI Act, 2005. However, it is informed that no such exercise has been conducted by this Ministry and therefore, no such data as asked for can be provided.
7. A similar query was raised to the competent quarters in the Central Excise Department to which dispensation the applicants belong. The query raised is apparent from Annexure A-10; while the response offered thereto is Annexure A-12. It would be apparent, from a conjunctive perusal thereof, that the queried quarters were not in a position to assert that the relevant exercise had been undertaken.
8. An identical controversy came up before the Punjab & Haryana High Court in CWP No. 13218 of 2009(O & M) titled Lachhmi Narain Gupta and Others Vs. Jarnail Singh and Others. The High Court also recorded a finding favourable to the applicants therein. The relevant instructions dated 10.08.2010 (Annexure P-16 therein) were quashed as those were in direct conflict with the view taken by the Constitution Bench in M. Nagrajs case and Suraj Bhan Meenas case. The learned DB of the High Court categorically pointed out thatthe seniority and promotion of the Income Tax Inspectors shall be made without any element of reservation in promotion.
9. On point of fact, learned counsel for the respondents very fairly states that the respondents therein have gone in for an SLP but no stay has come to be granted therein qua the view obtained by the High Court in CWP NO. 13218 of 2009.
10. In view, thus, of the above, the O.A. shall stand allowed. We would quash O.M. dated 11.07.2002 (Annexure A-1) and also O.M. dated 10.08.2011 (Annexure A-2) which are found to be in total discordance with the view obtained on the judicial side by the Honble Apex Judicial Dispensation.
11. It is to state the obvious that since the applicant belongs to an All India cadre, it shall be incumbent upon the respondents to implement this judgment qua the applicants herein viz a viz the dispensation in entirety.
6. In the background of law discussed above, we would proceed to discuss the facts of this case. The applicant joined as Stenographer Grade-III in Army Training Command on 17.6.1995. He came to be promoted as Stenographer Grade II and then as Stenographer Grade-I on 27.3.2006. On completion of 3 years of service he became eligible to be considered for promotion to the post of Private Secretary, which well vacant on promotion of Sh. Ajay Kumar as PPS on 1.1.2012. The case of the applicant, who belongs to general category, was sent to the higher authorities but it was turned down on the premise that the 7th point is meant for SC quota and as such applicant cannot be promoted. However, based on decision in the case of Rajesh Kumar (supra) of Honble Apex Court, the representation filed by applicant for treating the relevant vacancy as un-reserved stands rejected vide the impugned order.
7. In the reply filed by respondents No. 1-4 it has been vehemently stated that the 7th point is reserved for SC Community and that the decision in the case of Rajesh Kumar (supra) is applicable to the concerned dispensation only and cannot be applied to the respondent department in the absence of any notification in that behalf from the department competent in that behalf.
8. The factual as well as legal position is not in dispute at all. The only objection taken by the respondents is that the concerned competent department has not issued any notification for implementation of decision in the case of Rajesh Kumar (supra). It is not in dispute that a co-ordinate Bench of this Tribunal has quashed the O.M. dated 11.07.2002 and also O.M. dated 10.08.2011 issued by the DoPT on promotion as the same were found to be in total discordance with the view obtained on the judicial side by the Honble Apex Judicial Dispensation, in the case of Rajesh Kumar etc. (supra). In other words the settled proposition of law is that a view taken by administrative authorities would have to give way to a judicial pronouncement and the law discussed above goes to indicate that there cannot be any reservation in promotion or seniority unless relevant exercise is carried out, which as per stand of DoPT itself, is yet to be carried out. In that view of the matter the present Original Application succeeds. Impugned order dated 28.9.2012 is quashed and set aside. The respondents are directed to consider the case of the applicant for promotion to the post of Private Secretary by treating the relevant point as un-reserved and if found fit promote him as per rules and law. The needful be done within a period of three months from the date of receipt of copy of this order.
9. The parties are left to bear their own costs.
(SANJEEV KAUSHIK) MEMBER(J) (RAJWANT SANDHU) MEMBER (A) Place: Shimla Dated: 24.12.2013 HC*