Sirshendu Bag vs M/O Communications on 24 April, 2025

[Cites 18, Cited by 0]

Central Administrative Tribunal - Kolkata

Sirshendu Bag vs M/O Communications on 24 April, 2025

1 oa. 350/00128/2015

CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA

No. O.A. 350/00128/2015 Heard on: 21.03.2025
Date of Order: 24.04.2025

Present :Hon'ble Ms. Urmita Datta (Sen), Judicial Member
Hon'ble Mr. Anindo Majumdar, Administrative Member

1. Sirshendu Bag, son of Haripada Bag, aged
about 34 years, residing at BH-53,
Annapurna Apartment, Flat No.3C, Palpara,
Krishnapur, Kolkata 700102, Junior
Accounts Officer, Posted at ITPC, Kolkata
(DC).

2. Santanu Basu, son of Pradip Kumar Basu,
aged about 30 years, residing at Flat No:
28/5G, Genexx Valley, Joka, Diamond
Harbour Road, Kolkata - 700104, Junior
Accounts Officer, Posted at ITPC, Kolkata
(DC).

3. Tamaghna Kumar Ghosh, son of Sailesh
Kumar Ghosh, aged about 30 years, residing
at Olaichanditala, Aambagan Colony,
Hooghly-712103, Junior Accounts Officer,
Posted at ITPC, Kolkata (DC).

4. Prerana Bhowmik, daughter of Monoj Kanti
Bhowmik, aged about 28 years, residing at
43/1, Ashokgarh, (ground floor), Kolkata-
700108, Junior Accounts Officer, Posted at
ITPC, Kolkata (DC).

5. Ranjit Saha, son of Parameshwar Prasad
Saha, aged about 27 years, residing at
Ghoshpara, Kestopur, Baguiati, Junior
Accounts Officer, Posted at ITPC, Kolkata
(DC).

.........Applicants

-Versus-

1. Union of India, service through the Secretary,
Ministry of Telecommunication, Bharat
Sanchar Bhaban, Janpath, New Delhi-
110001.

2. Bharat Sanchar Nigam Limited, service
through the Chairman-cum-Managing
Director, Bharat Sanchar Bhaban, Harish
Chandra Mathur Lane, Janpath, New Delhi
110001.

Digitally signed by Shantanu Pramanik

Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65=
133598026844054409pZp0Sk77DU2VN1, Phone=
495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc
937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER=
1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938
da0637e, CN=Shantanu Pramanik

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3. The Director (HRD), Bharat Sanchar Nigam
Limited, Bharat Sanchar Bhaban, Harish
Chandra Mathur Lane, Janpath, New Delhi -
110001.

4. Chief General Manager, I.T. Project Circle,
RTTC Bldg, G-Block, Plot No. 121 & 122,
MIDC, Chinchwad Pune -411019.

5. General Manager, I.T. Project Circle, Kolkata
(DC), Salt Lake, Telephone Exchange,
Lalkuthi, 3rd Floor, Block DE, Kolkata-
700064.

6. The Assistant General Manager (SEA), Bharat
Sanchar Nigam Limited corporate office at 7th
floor, Bharat Sanchar Bhaban, Harish
Chandra Mathur Lane, Janpath, New Delhi-
110001.

7. Ashok Kumar Nayak, Junior Accounts
Officer, Bharat Sanchar Nigam Limited,
Orissa, service through the Chief General
Manager, BSNL, Orissa Circle, Bhubaneswar-
751001.

8. Sujit Kumar Sukla, Junior Accounts Officer,
Bharat Sanchar Nigam Limited, Orissa,
service through the Chief General Manager,
BSNL, Orissa Circle, Bhubaneswar- 751001.

9. Rajiv Biswas, Junior Accounts Officer, Bharat
Sanchar Nigam Limited, Kolkata, service
through the General Manager, BSNL, Kolkata
Circle, Telephone Bhawan, Kolkata- 700001.

............Respondents

10. PHAOREI MUNGREI
11. ELAMATHI N
12. ZOLE YOGESH RAMESH
13. Rajeswari J
14. ALIPTA SARKAR
15. BIRAJ MOHAN ROY
16. KARTICK CHANDRA SAHA
17. ALOK KUNAL
18. SANTOSH KUMAR HALDER
19. SADASIVAMG
20. Rathod Vijay Kumar Balubhai
21. KASHMIRSINGH A MEHRA
22. LAXMIPRIYA BEHERA
23. Parmar Abhijeet Manojkumar
24. SAMIT DAS
25. BHUPEN MALAKAR
26. SUMONA BHATTACHARJEE
27. SANJIT KUMAR MALAKAR
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28. KAPADIA KALPESH M
29. MUTHUKUMAR S
30. VIJAYA SEKHAR MATTA
31. RATAN KUMAR SHARMA
32. KALYAN KUMAR NIRATI
33. Tapan Sarkar
34. Ajit Kumar Barman
35. DEBASISH BHOWMIK
36. KHAGESWAR MAJHI
37. ANUPAMA DATTA
38. SIKHASREE DAS
39. BARAPATRE
CHANDRASHEKHAR
RAMKRISHNA
40. ANJANA UPADHYAY
41. VIMAL SATISH KANAPALA
42. CHIRANJIB BARMA
43. KAMALADEVI S
44. Ramesh T
45. BIMAL BARMAN
46. PREETI CHAUHAN
47. SIDDHARTHA ROKA
48. DHRUBAMANI DAS
49. PAWAN KUMAR
50. RATAN KR BARO
51. TABA SANY
52. Goswami Shilkumar Ramesh
53. PREETESH GANGADHAR
SHINDE
54. SAMARENDRA NATH MONDAL
55. PERIASAMY R
56. KATARIYA CHANDRAKANT H
57. Goutam Kumar Mondal
58. VINOD KUMAR SANDHE
59. RAVI CHOUHAN
60. SUBIR CHANDRA MANDAL
61. SACHIN TANWAR
62. T V SRINIVASA RAO
63. Avneet Kaur Lehra
64. ARJUN GOHIL
65. DEEP KUMAR
66. Amar Sardar
67. Guttala A Karuna Prasad
68. MINTU SARKAR
69. BINESH BABU P
70. MUKESH N S
71. LASIT SONOWAL
72. HARI CHARAN DAS
73. BAMANDLAPALLY RAJU
74. PARESH CHANDRA PATRA
75. TARUN KUMAR MONDAL
76. PRASANTA KUMAR HALDAR
77. TSHERING DOMA LEPCHA
78. ANITA
79. R V SHUMJU RAMACHANDRAN
80. VIRENDRA KUMAR
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81. DEBASHIS BISWAS
82. DEEPA MURMU
83. SUSHILA SINGH
84. SAMPATHKUMAR A
85. SHAILENDRA SINGH
86. VIJAYAN N
87. SUMNIMA ZIMBA
88. ANCY VARGHESE
89. PINTU SARADAR
90. KAMAL KISHORE
91. DHOBLE VIJAY MOHAN
92. VIKAS KUMAR
93. SURYAKANT SINGH RAI
94. GNANALAKSHMI S
95. KIRAN KUMAR KANCHARLA
96. PRATAP KUMAR ROY
97. CHATAR SINGH
98. ASHIT KR SAHA
99. Shanmugam Padmaja
100. T. Inato Achumi
101. Archanaa Ma
102. Anand Kumar M
103. Poonam
104. Avani Bhalchandra Parmar
105. Sunil Kumar Solanki
106. Suresh Kumar S
107. Abhilash KK
108. Vikesh Ramesh Satpute
109. Thiyagarajan M
110. Sreekumar J R
111. Heera Lal
112. Aradhana Chauhan
113. Prasantha Kumar Kapa
114. Jadhav Anil Hiraji
115. Mool Raj
116. Dariel Vernon Rynjah
117. Chiranjib Sadhak
118. Megha K R
119. Sailen Kumar Majumder
120. Jyotihndra Kumar Gautam
121. Ashish Kumar Kulla
122. Ashim Chowdhury
123. Chankya Umangkrushna
124. Amber Singh
125. Madhu Tanwar
126. Parthiban M
127. Aswani Kumar
128. Selladurai G
129. Shailender Kumar
130. Sundeep Sukhdev Satpute
131. Baisakhi Roy
132. Rajesh Dahanga
133. Kanika Basumatary
134. N Madan Kumar
135. Nitaben Pravinbhai Dave
136. Soundarapandian S
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137. Amarjeet
138. Kiran Arak
139. Guntiwar Rahul Nathoo
140. Gaurav
141. Sushil Kumar
142. Parmar Sunil Kumar T
143. Dhanushkodi M
144. Parmar Anurag M
145. Debasish Saha
146. Panneerselvam S
147. Sunil Kumar
148. Yogesh Verma
149. Kirty Kaur
150. Anish T O
151. Shweta Mandal
152. Bhagawati Thapa Singh
153. Potnuru Rajesh
154. Chikode Rajendra Vasantrao
155. Satendra Singh
156. Sahadeb Halder
157. Thanglenjohn Misao
158. Rosila Khyriem Basan
159. Ambethkar V
160. Jadence Kupar Thabah
Synthiang
161. Vinay Kumar
162. Mohinder Paul
163. Lanuzulu
164. Jitu Das
165. Sandeep
166. Shobhna Chowdhary
167. Prem Chand Das
168. Begari Srinivas
169. Navjosh Kaur
170. Pradeep Kumar
171. Dharam Singh
172. Om Prakash
173. Prasanta Majumder
174. S W Raingam
175. Vung Lun Ching
176. Raju Biswakarma
177. Rammehar Mehla
178. Madhu Nath
179. Dharamjeet Ram
180. Deivanai S
181. Shishu Ranjan Pallab Baskey
182. Raymon Nongkhlaw
183. Santoshi Daimary
184. Shiluenla Imsong
185. Abdul Saleem K.P
186. Gaurin Doley
187. Daleep Chand
188. Indalyne Sungoh
189. Sreedhara K
190. Chongboi Kuki
191. Pashupati Hembram
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192. Malti Devi
193. Thongyalo Apon
194. Khmihlang Nongsteng
195. Manjulata Ho
196. Bidyut Chandra Mandal
197. Achyutananda Nayak
198. Deepak Kumar Kethonia
199. Prakash Tukaram Surkule
200. Ashok Lama
201. SK. Sailor
202. Anil Ghanshyam Sahara
203. Ravole Solo
204. Sekar P
205. Hari Prakash Verma
206. Ashok Kumar Nimje
207. Khupneichung Karoung
208. Sukadev Balu Shilkande
209. Birendra Kishan
210. F Lallianchhuma
211. Ram Pariksha Prasad
212. Narayan Ganapayya Gond
213. Kamlesh Kumar Meena
214. Satish Kumar
215. Sita Ram Meena
216. Srikanta Sardar
217. Yog Raj
218. Nayana Ramdas Bhojane
219. Dawin Kumar Ekka
220. Naresh Kumar
221. Rivalencia Stoder Langstieh

For the Applicant : Mr. S. K. Dutta, Counsel
Mr. B. Chatterjee, Counsel

For the Respondents : Mr. S. Panda, Counsel
Mr. S. S. Roy, Counsel

ORDER

Per Ms. Urmita Datta (Sen), Judicial Member:

The applicants are aggrieved and dissatisfied with their supersession in the matter of promotion to the posts of Accounts Officer by their juniors. The applicants have preferred this O.A. seeking the following reliefs:

"8(a) The cause of action and the redressal being the same the applicants pray for leave to file one original application in accordance with provisions of Rule 4(5) (a) of Central Administrative Tribunal (Procedure) Rules, 1987.

Digitally signed by Shantanu Pramanik

Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 7 oa. 350/00128/2015 ( b) As per the leave granted by the Hon'ble Justice A. K. Patnaik (Judicial Member) sitting with Hon'ble Jaya Das Gupta (Member Admn.) on 08.06.15, I amend the prayer that is respondents to forthwith promote the applicants to the post of Accounts Officer w.e.f.16.01.2015 and also quashed and set aside the order dated 16.1.15 promote the other junior Accounts Officer strictly following the principle laid down by the Hon'ble Apex Court as reported in 2007(4) SCT 664 and also maintain the seniority as prepared and published by the respondents as per the gradation list of JAO and also revert the juniors and fix the seniority of the applicants as Accounts Officer from the date from which the juniors has been promoted with all consequential service benefits.

( c) Any further order or orders as your Lordship may deem fit and proper."

2. The applicants have alleged that their juniors (the private respondents herein) have been promoted to the posts of Accounts Officer ahead of them on the ground that they belong to Scheduled Caste Community but such reservation in favour of his juniors has been made without following the principle of law as laid down by the Hon'ble Supreme Court in the case of M. Nagraj vs. Union of India & Others that inadequacy of representations of Scheduled Castes and Scheduled Tribes in service may be a ground for giving preference to a Scheduled Caste and a Scheduled Tribe, but no such reason and/or no such conclusion has been arrived at and as such, the impugned promotion Order is bad in law.

The applicants would heavily rely upon a decision of the Chandigarh Bench of this Tribunal in O.A. No.647/HR/2012 dated 21st March, 2013 is squarely applicable to their case. The Chandigarh Bench has held as under:

"7. The view by the Hon'ble Apex Court in M. Nagraj's case was categorical in announcing that reservation in promotions could be validly given only after the competent authority had obtained the quantifiable data to record a finding that the reserved category candidates were not adequately represented in the services. Since that exercise yet in the BSNL dispensation is yet to conclude, we cannot validate the declaration on the part of the competent authority in applying the rule of reservation.......................

Digitally signed by Shantanu Pramanik

Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 8 oa. 350/00128/2015 xxxxxxxxx

10. We find ourselves in the agreement with the plea canvassed on behalf of the applicants. It being the presently conceded position that the exercise reportedly underway at the hands of the BSNL for obtaining quantifiable data is yet to conclude, the competent authority cannot be allowed to apply the rule of reservation in promotion on the basis of the official documentation based information obtained under the RTI Act, the applicants have been able to prove that there are adequate number of vacancies which puts them within the zone of consideration. Even, if, however, it is assumed for the sake of arguments that the applicants are not the immediately affected employees, their locus to obtain invalidation of the impugned view cannot be challenged just because few persons high up in the seniority have opted to refrain from raising a challenge thereto.

11. In reiteration, thus, of the view obtained in O.A. No. 308/CH/201, we would allow the OA by categorically holding that the BSNL dispensation is not entitled to presently make reservation in promotions in view of the non-compliance with the view obtained by the Hon'ble Apex Court in M. Nagraj's case (supra).

12. The parties shall bear their own costs of the cause in the facts and circumstances of the case."

In the case of M. Nagraj the Hon'ble Supreme Court was pleased to observe as follows: -

"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 breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. 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 (Eighty-Fifth Amendment) Act, 2001".

Referring to the above, it was canvassed that the said decision of the Hon'ble Supreme Court in the case of M. Nagraj was considered by the Hon'ble Supreme Court out of the two reference orders, the first by a two Judge Bench referred to in a second Digitally signed by Shantanu Pramanik Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 9 oa. 350/00128/2015 reference order dated 15.11.2017, which is by a 3 Judge Bench, on the correctness of the decision in M. Nagraj Vs Union of India, in Jarnail Singh & Others Vs. Lachhmi Narain Gupta & Others, along with other Special Leave Petitions and Civil Appeals. The Hon'ble Apex Court by its Judgement and Order dated 26th September, 2018 was pleased to hold as follows:

"It can be seen that when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is mandated by the Constitution. The difference in language between this provision and Article 16(4- A) is important, and we decline the invitation of the learned Attorney General to say any more in this behalf.

Thus, we conclude that the judgment in Nagraj (supra) does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagraj (supra) 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) (supra) is held to be invalid to this extent". Applicants would argue that such 5-Judge Bench decision of the Hon'ble Supreme Court in the case of M. Nagraj still holds the field with the aforesaid conclusion of the Hon'ble Supreme Court in Jarnail Singh and as such, the respondents were to review the seniority as well as the impugned promotion in the light of the aforesaid decisions of the Hon'ble Supreme Court.

It was argued that following the said decisions of the Hon'ble Supreme Court, apart from the Hon'ble Chandigarh Bench, as stated supra, this Bench has also been pleased to pass an order dated 09.12.2016 in O.A. No.183 of 2016 marked as ANNEXURE W-1.

It has been urged that the applicants have been subsequently promoted to the post of Accounts Officer in the year 2018, but their Digitally signed by Shantanu Pramanik Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 10 oa. 350/00128/2015 claim pertains to: this the year 2015 as prayed for in this Original Application.

4. Per contra the respondents would contend as under:

That the applicants in this Original Application, on the basis of the competitive examination held on All India basis, were selected and appointed as Junior Accounts Officer. The said competitive examination was held in the year 2010 and the applicant Nos. 1, 2 and 3 were appointed on 31.01 2011. The applicant Nos. 4 and 5 were appointed on 01.11.2010 and a gradation list was prepared for Junior Accounts Officer. In the said gradation list, the position of the applicants were at Serial No 1825, 1757, 1821, 1839 and 2175 respectively whereas the private respondents, who belong to the Scheduled Castes and Scheduled Tribes community, were appointed as per the Roster point irrespective of their position in the merit list.

That in the aforesaid Gradation list, the private respondents were at serial No. 2245, 2483 and 2215 respectively.

The respondents would emphatically admit that on 16.01.2015, a promotional order was published wherein and whereby the private respondents, who were junior to the applicants in the Original Application, were promoted to the post of Accounts Officer.

The respondents would also candidly admit that a similar situation arose in Punjab where the Junior Accounts Officers had to file an Original Application before the Central Administrative Tribunal, Chandigarh Bench in O.A. No. 647/HR/2012. The said Digitally signed by Shantanu Pramanik Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 11 oa. 350/00128/2015 Original Application was finally disposed of on 21.03.2013, wherein the Hon'ble Tribunal deprecated the way by which juniors to the applicants therein were promoted only on the ground that they belong to Scheduled Caste and Scheduled Tribe community by placing reliance on the judgment of Hon'ble Supreme Court reported in 2007 (4) SCT 664 (M. Nagaraj -versus- Union of India & Ors.).

The respondents asserts that promotion to the grade of Accounts Officer has been made as per the Recruitment Rules of Accounts Officer on seniority-cum-fitness and not based on merit- cum-seniority basis as stated by the applicants. The post of Accounts Officer has been filled as per Accounts Officer's Recruitment Rules based on DOP&T guidelines. Hence, they allege that the contentions of the applicants are thoroughly misleading.

The respondents further contends that the promotion order is based on DOP&T guidelines and SC/ST candidates have been promoted based on the availability of SC/ST vacancies and the applicants herein could not be promoted due to non-availability of OC vacancies in the grade of Accounts Officer.

That in this instant case, the promotion has been done as per DOP&T guidelines on the subject and private respondents have been promoted due to availability of vacancies in their respective category and they have not superseded any of the applicants as alleged.

Digitally signed by Shantanu Pramanik Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 12 oa. 350/00128/2015 The applicants have also not produced any Administrative order to the effect that there cannot be any reservation in the promotional post (Group - B).

The respondents further avers that the applicants in this present Original Application are either not having sufficient knowledge of maintenance of roster as per SC/ST Reservation Policy nor they are aware of the present case laws of the Hon'ble Apex Court of this country.

They further submits that promotion to the grade of Accounts Officer has been given as per DOP&T guidelines on the subject and it is not in violation of Hon'ble Central Administrative Tribunal, Chandigarh Bench judgment dated 21.03.2013 since SC/ST candidates have been promoted against their available vacancies and therefore, they have not exceeded the post reserved for SC/ST candidates. Hence, points raised by the applicant are not justified and the promotion orders are based on the current Judgments of the Hon'ble Apex Court, which have already been discussed before this Hon'ble Tribunal during peremptory hearing of the case.

Therefore, the respondents conclude that the applicants have no case basing on such bald and vague grounds on which no reliance can be placed and as such it can also warrant no interference of this Tribunal in form of any relief whatsoever.

5. The Private Respondents on the other hand have placed an elaborate discussion in their counter reply as extracted hereunder:

(i) Article 46 of the Constitution which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the society and in particular, of the Scheduled Castes and shall protect them from social injustice and all forms of exploitation.

Digitally signed by Shantanu Pramanik

Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 13 oa. 350/00128/2015

(ii) The Constitution (Seventy-Seventh Amendment) Act, 1995 inserting Article 16 (4A) and the Constitution (Eighty-Fifth Amendment) Act, 2001 introduced reservation in promotion with consequential seniority to Scheduled Castes (SCs) and the Scheduled Tribes (STs).

(iii) The Constitution (Eighty-First Amendment) Act, 2000 inserted Article 16(4B) for carrying forward of unfilled reserved vacancy of SCs/STs.

(iv) The Constitution (Eighty-second Amendment) Act, 2000 - inserted proviso to Article 335 for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.

(v) The judgement of 5 judge bench of the Hon'ble Supreme Court in M. Nagaraj case on 19.10.2006 upheld the constitutional validity of the Amendment Acts.

(vi) The Nine judge bench, judgement of Hon'ble Supreme Court in Indra Sawhney case on 16.11.1992 ruled that 9(a) under Article 16(4) the State is duty bound to provide reservation; (b) SCs/STs are without a doubt backward; SCs/STs are admittedly included within the backward classes; (c) the opinion on the inadequacy of representation is a matter within the subjective satisfaction of the state and the court should show due deference to the opinion of the state; (d) The mandate of Article 335 is to take claims of SCs/STs and not to reject it in the name in maintenance of efficiency in administration.

(vii) The five judge bench of the Supreme Court in R. K. Sabharwal case that ruled on 10.02.1995 that the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. On the other hand, the reserved category candidates can complete for the non-reserve posts and in the event of their appointment to the said posts there number cannot be added and taken into consideration for working out the percentage of reservation.

(viii) Rajasthan High Court decision in Suresh Chand and Ors. v. State of Rajasthan on 14 March, 2001 that:

"28............Under Article 141 of the Constitution of India, the law declared by the Supreme Court is made binding on all Courts of India. The Courts should treat a decision of the Supreme Court as an authority not only for what it declares or decides by express enunciation but also for what follows from such declarations by clear implication by way of logical deduction....."

(Emphasis added)

(ix) A Five Judge Bench judgment of Hon'ble Supreme Court in Bharat Petroleum Corporation Ltd. Case on 25.04.2001 held that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench is binding on all courts including this court till the same is overruled by a larger Bench.

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 14 oa. 350/00128/2015

(x) The five Judge Bench of the Supreme Court in State of Maharashtra vs. Milind & Ors. on 28 November, 2000, case ruled as under:

".............It is good to proceed from precedent to precedent but it is earlier the better to give quietus to the incorrect one by annulling it to avoid repetition or perpetuation of injustice, hardship and anything ex-facie illegal more particularly when a precedent runs counter to the provisions of the Constitution........."

They would contend that the decision in M. Nagaraj case terming Articles 16(4), 16(4A) and 16(4B) as enabling provisions and consequently imposing the three conditions of quantifications backwardness inadequacy of representation and efficiency, being per incuriam and obiter dicta, unconstitutional and void ab initio, have never been enforceable in view of the constitutional provisions and laws of the land emanating from the judgements of Hon'ble Supreme Court of India

(a) 9 judge bench in Indra Sawhney case on 16.11.1992, (b) 5 judge bench in R. K. Sabharwal case on 10.02.1995, (c) 5 judge bench in Bharat Petroleum Corporation Ltd case on 25.04.2001 and in State Of Maharashtra vs. Milind & Ors case an 28 November, 2000 (d) two judge bench in Prabha Sharma case on 17.01.2017, (e) three judge bench in Gyani Chand case on 20.09.2016.

That the judgements of the Hon'ble Supreme Court of India in Indra Sawhney and R. K. Sabharwal cases (supra) cannot be negated, as the constitutional rights of the SCs/STs are guaranteed by Part III (Fundamental Rights) of the Constitution of India and the Constitutional provisions under it, e.g. Article 16 (4A) are binding upon the executive government as well as the courts of law.

They have provided a systematic examination and evaluation of the conditions laid down in the Nagaraj case in the face of judgment of the larger bench in Indra Sawhney case which need not be elaborated herein.

However, the conclusion being as under:

"The 5 judge bench in M. Nagaraj case admitted quite unequivocally that they are bound by the decision in Indra Sawhney case".

They have further referred to the following:

(i) The DOPT letter dated 21.01.2002 provides for seniority of SC/ST Government servants on promotion by virtue of rule of reservation/roster.

Digitally signed by Shantanu Pramanik

Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 15 oa. 350/00128/2015

(ii) The DOPT letter dated 29.03.2007 that "the reference to creamy layer in the concluding paragraph and other portions of the judgment does not relate to the Scheduled Castes and Scheduled Tribes".

(iii) The DOPT letter dated 13.08.1997 whereof, para 2 and 3 provides for reservation for the SCs/STs in promotion. to substantiate that the laws of the land under the Constitution of India provide for reservation in promotion with consequential seniority for SCs/STs without requiring the State for determining quantifiable date of backwardness, inadequacy of representation and efficiency in administration.

6. We have considered the rival contentions and perused the materials on record.

7. It is trite, axiomatic and settled law that "The Courts should treat a decision of the Supreme Court as an authority not only for what it declares or decides by express enunciation but also for what follows from such declarations by clear implication by way of logical deduction....."

8. In Jarnail Singh & Others Vs. Lachhmi Narain Gupta & Others decided on 26.09.18, in SLP 30621 of 2011, Hon'ble Apex Court considered the following "the learned Attorney General for India, Shri K. K. Venugopal, led the charge for reconsideration of Nagaraj(supra). According to the learned Attorney General, Nagaraj (supra) needs to be revisited on these two points. First, when Nagaraj (supra) states that the State has to collect quantifiable data showing backwardness, such observation would be contrary to the nine-Judge Bench in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, ("Indra Sawhney (1)"), as it has been held therein that the Scheduled Castes and the Scheduled Tribes are the most backward among Digitally signed by Shantanu Pramanik Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 16 oa. 350/00128/2015 backward classes and it is, therefore, presumed that once they are contained in the Presidential List under Articles 341 and 342 of the Constitution of India, there is no question of showing backwardness of the Scheduled Castes and the Scheduled Tribes all over again.

Secondly, according to the learned Attorney General, the creamy layer concept has not been applied in Indra Sawhney (1) (supra) to the Scheduled Castes and the Scheduled Tribes and Nagaraj (supra) has misread the aforesaid judgment to apply this concept to the Scheduled Castes and the Scheduled Tribes. According to the learned Attorney General, once the Scheduled Castes and the Scheduled Tribes have been set out in the Presidential List, they shall be deemed to be Scheduled Castes and Scheduled Tribes, and the said List cannot be altered by anybody except Parliament under Articles 341 and 342. The learned Attorney General also argued that Nagaraj (supra) does not indicate any test for determining adequacy of representation in service.

Hon'ble Apex Court observed, " As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) (supra), 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."

And "It can be seen that when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is mandated by the Constitution. The difference in language Digitally signed by Shantanu Pramanik Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0 17 oa. 350/00128/2015 between this provision and Article 16(4-A) is important, and we decline the invitation of the learned Attorney General to say any more in this behalf."

And finally concluded that "the judgment in Nagaraj (supra) does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj (supra) 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) (supra) is held to be invalid to this extent."

9. Considering the above legal proposition and the later DOPT circular as enumerated above, we would fail to concur with the suggestion that promotional posts ought to have been reserved for the SC/STs even in terms of M. Nagraj so long all its observations were binding on the state.

10. Accordingly, we would direct the respondents to recast the seniority and consider the promotion of the applicants against the posts of Accounts officer and pass necessary orders in accordance with law within 2 months from the date of receipt of a copy of this order. No costs.

 (Anindo Majumdar)                                                          Urmita Datta (Sen)
Administrative Member                                                       Judicial Member


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           Digitally signed by Shantanu Pramanik

Shantanu DN: C=IN, O=Personal, T=6283, OID.2.5.4.65= 133598026844054409pZp0Sk77DU2VN1, Phone= 495dab51bd16f95eab3873746237af9545f09bb4143baf81a658d7fbc 937c888, PostalCode=712223, S=West Bengal, SERIALNUMBER= 1d3af0fbe8dee56095510835a714afdf51d7f6d80c4812359eaee8938 da0637e, CN=Shantanu Pramanik Pramanik Reason: I am the author of this document Location:

Date: 2025.04.25 14:23:08-07'00' Foxit PDF Reader Version: 2024.3.0

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