Gauhati High Court
Rashmi Rekha Majumder vs The Union Of India And 23 Ors on 2 February, 2024
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GAHC010080622021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/250/2021
RASHMI REKHA MAJUMDER
W/O- SUSHANTA KUMAR MAJUMDAR, R/O- OPPOSITE ASHRAM ROAD,
H/NO. 22/A, SANTIPUR, P.O. BHARALUMUKH, GUWAHATI, DIST.-
KAMRUP(M), ASSAM.
VERSUS
THE UNION OF INDIA AND 23 ORS.
REP. BY THE SECRETARY, MINISTRY OF COMMERCE AND INDUSTRY,
GOVT. OF INDIA, UDYOG BHAWAN, NEW DELHI-110107.
2:THE EXECUTIVE DIRECTOR
THE RUBBER BOARD
(ADMINISTRATION DEPARTMENT)
MINISTRY OF COMMERCE AND INDUSTRY
P.B. NO. 1122
SUB-JAIL ROAD
KOTTAYAM-686002
KERALA.
3:THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK-II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GUWAHATI
ASSAM
4:DEPUTY RUBBER PRODUCTION COMMISSIONER
HOUSEFED COMPLEX
BELTOLA
GHY.
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5:S.S K. K. KAMALAKSHI
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
6:MARUKUTTY BABY
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
7:CL JAYMOL
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
8:VP PREMLATHA
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
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BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
9:SAIMOL EAPEN
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
10:AJAY KUMAR KANHAR
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
11:PARASURAM NAYAK
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
12:D SURESH
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
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HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
13:A R DIVYAKARAN
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
14:C R OMANA
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
15:GUTAL BARGYARI
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
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16:VALSALA MATHUKKAL
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
17:TP SHEEJA
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
18:TP SHEEJA
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
19:SHYNY K PONNAN
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
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DISPUR- 781006
GHY
ASSAM
20:DIJENDRA NATH BARO
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
21:SUDHAKAR BAPUKI TRIPUDE
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
22:M. GOPAL KRISHNAN
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
23:GAURANGA DAS
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
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CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSAM
24:K.M. SHAJI
TO BE SERVED THROUGH THE JOINT RUBBER PRODUCTION
COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK-II
1SRT FLOOR
BELTOLA
BASISTHA ROAD
DISPUR- 781006
GHY
ASSA
Advocate for the Petitioner : MR. Y S MANNAN
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WA/337/2021
PRASANTA BARUA
S/O LATE PONARAM BARUA
NEAR NAVODAYA JATIYA VIDYALA
HENGRABARI
P.O.-HENGRABARI
GUWAHATI-36
DIST- KAMRUP
ASSAM
VERSUS
UNION OF INDIA AND 12 ORS.
REPRESENTED BY THE SECRETARY
MINISTRY OF COMMERCE AND INDUSTRY
GOVT OF INDIA
UDYOG BHAWAN
NEW DELHI-110107
2:THE EXECUTIVE DIRECTOR
Page No.# 8/42
THE RUBBER BOARD (ADMINISTRATION DEPARTMENT)
MINISTRY OF COMMERCE AND INDUSTRY
P.B. NO. 1122
SUB-JAIL ROAD
KOTTYAM-686002
STATE-KERALA
3:THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
4:THE DEPUTY RUBBER PRODUCTION COMMISSIONER
RUBBER BOARDS REGIONAL OFFICE
HOUSEFED COMPLEX
CENTRAL BLOCK NO. 1
3RD FLOOR
BELTOLA BASISTHA ROAD
DISPUR
GUWAHATI-781006
ASSAM
5:P.K. RAMACHADRAN
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
6:S/S K K KAMALAKSHI
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
7:MARUKUTTY BABY
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
Page No.# 9/42
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
8:CL JAYMOL
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
9:VP PREMLATHA
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
10:SAIMOL EAPEN
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
11:AJAY KUMAR KANHAR
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
12:PARASURAM NAYAK
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
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RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
13:D SURESH
THROUGH THE JOINT RUBBER PRODUCTION COMMISSIONER
RUBBER BOARD ZONAL OFFICE
HOUSE FED COMPLEX
CENTRAL BLOCK II (FIRST FLOOR)
BELTOLA
BASISTHA ROAD
DISPUR-781006
GUWAHATI
ASSAM
------------
Advocate for : MR. Y S MANNAN
Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 12 ORS.
BEFORE
HONOURABLE THE CHIEF JUSTICE (ACTING)
HONOURABLE MR. JUSTICE KARDAK ETE
JUDGMENT
Date : 02-02-2024 [Kardak Ete, J] Heard Mr. Y.S. Mannan, learned counsel appearing for the appellants in both the Writ Appeals. Also heard Mr. D. Nath, learned Standing Counsel, Rubber Board appearing for respondent Nos.2--4 and Mr. B. Sarma, learned counsel appearing for the private respondents.
2. These two intra Court Appeals are directed against the common judgment and order dated 23.03.2021, passed by the learned Single Judge in a batch of Writ Petitions, whereby the writ petitions of the appellant Smti. Rashmi Rekha Page No.# 11/42 Majumder have been dismissed and partly allowed the writ petition of appellant Sri Prasanta Barua. Writ Appeal No.250/2021 is preferred by Smti. Rashmi Rekha Majumder (Writ Petitioner in WP(C) No.7777/2016, WP(C) No.3717/2016 & WP(C) No.6901/2014). Writ Appeal No.337/2021 is preferred by Sri Prasanta Barua (Writ Petitioner in WP(C) No.5815/2014), being partially aggrieved by the impugned judgment and order dated 23.03.2021, passed by the learned Single Judge. As both the Appeals are preferred against the common judgment and order and are analogous, same are being dispose of by this common judgment.
3. The factual background leading to filing of the present case, in brief, may be narrated as under:-
The appellants/writ petitioners were appointed as Junior Field officer (in short 'JFO') and subsequently to the post of Field officer (in short ' FO') and they have become eligible for promotion to the next higher grade of Assistant Development Officer (in short 'ADO') and were accordingly promoted to ADO. The private respondents and others who were junior to the appellant/writ petitioner- Smti. Rashmi Rekha Majumder, were promoted and en-bloc placed above the appellant/ writ petitioner. It is projected that the appellants/writ petitioners were deprived of being considered for promotion to the post of Development Officer (in short 'DO') from the post of ADO. It is projected that the respondent No.1, published the Gradation List of employees as on 31.03.1994 and thereafter on 31.12.1998. Thereafter, the Gradation List of the employees was published on 31.12.2006. It is contended that in between 31.12.1998 and 31.12.2006, no Gradation List was published. The grievance of the appellants/writ petitioners is that the respondent authorities did not convene any Departmental Promotion Committee ( in short DPC ) meeting from June, Page No.# 12/42 2006 to November, 2009 and during this period, twenty six vacancies arose in the rank of ADO. It is projected that in the year 2012 total six vacancies of DO were fixed. In the year 2013, twelve vacancies in total were there. The grievance of the appellants/writ petitioners is that according to the relevant circular of the Department of Personnel and Training (in short 'the DoPT') bearing O.M. No. F.22011/5/86-Estt.D, dated 10th March, 1989, the DPC is required to consider year wise vacancy position. However, the DPC had considered vacancies which arose in 2012, 2013 and 2014 and thereby the zone of consideration was extended and larger number of reserved category candidates, who were junior to the appellants/writ petitioners were considered for promotion. It is contended that the six vacancies for the year 2012 was inclusive of two vacancies for SC and four vacancies for ST and therefore, it is projected that as no more SC or ST candidates were in the zone of consideration, four posts were to be filled up with general candidates in order of seniority. It is projected that for the year 2012 as both backlog vacancies of SC were filled up, there was no backlog for SC and there was only four backlog for ST candidates. Similarly, for the year 2013, it is projected that out of 12 vacancies, only one candidate was for ST which fell within the zone of consideration and no SC candidate would fall on that zone. Accordingly, it is projected that nine vacancies could be filled up for general candidate, two of SC and one of ST candidates and resultantly, as one ST post was filled up, the backlog position would be two for SC, three for ST and one for general (short fall) and therefore, the vacancy position was not required to be filled up and was required to be kept as backlog vacancies. In connection with the year 2014, it is projected that out of six fresh vacancies, five was for general, one for SC and none for ST candidates and the backlog vacancies would be two for SC and Page No.# 13/42 four for ST and therefore, as no SC/ ST candidates fell within the zone of consideration, five posts were to be filled up with general category and one post was required to be kept as vacant. Therefore, it is projected that after promotion to the post of DO in the year 2014, the position of backlog vacancies would be four for ST and two for SC in 2013 and there would be a short fall for one post for the year 2014, were all the posts already kept vacant.
The Appellant Prasanta Barua challenged the promotion of the private respondent therein, namely, D. Suresh, ADO, to the post of DO and accordingly, challenged the O.M. dated 12.08.2014 for promoting the private respondent Nos.5 to 13 and the O.M. dated 29.10.2014, promoting respondent No.13 to the rank of DO with all consequential benefits. The appellants/writ petitioners had also prayed for considering the case of the petitioners for promotion to the rank of DO in accordance with their position in the gradation list of 31.12.2006 published vide O.M. dated 27.02.2008. The appellants have challenged the impugned O.M. dated 04.12.2009 by which private respondent Nos.5 to 23 were promoted to the rank of ADO and prayed for a direction to the respondent authorities to place the appellants/writ petitioners above the private respondents in the seniority list of ADO. The petitioners had also prayed for directing the respondent authorities to review the representation of reserve category persons basing on quantifiable data in the cadre of ADO and DO and to grant further promotion on the said rank with all consequential benefits. Challenged had also been made against the impugned order of O.M. dated 14.06.2016 and the impugned order of O.M. dated 16.12.2016 by which private respondents were promoted to the rank of ADO and DO with all consequential benefits and for a direction to the respondent authorities to place the petitioner above the private respondents in the seniority list of ADO. It is the case of the Page No.# 14/42 appellants/petitioners that the O.M. on reservation for SC/ST and other backward classes in service issued by the DoPT, Govt. of India, the O.M. dated 10.03.1989, O.M. dated 30.01.2015 and O.M. dated 06.01.2006 which contains guidelines for the DPCs and procedure to be adopted in conduct of DPC, have not been followed. According to the appellants/writ petitioners, the DPC ought to have considered year wise vacancies and if any vacancies arose after the last DPC, it was required that supplementary DPC shall be constituted for making selection. It is also the case of the appellants/writ petitioners that without the gradation list being finalized, the DPC ought not have considered the promotion of the various candidates to the promotional post of ADO and DO. It is also contended that as per O.M. dated 10.03.1989 the vacancies of various periods cannot be clubbed together. It is also contended that persons promoted in the post of ADO and DO, superseding the appellants/writ petitioners were not even born in the Gradation List being Gradation Lists of 1998, 2006 and 2009.
4. Submissions of the learned counsel for the Appellant in WA 250/2021:
Mr. Y.S. Mannan, learned counsel for the appellant submits that appellant- Smti. Rashmi Rekha Majumder- was appointed on 01.03.1989 as the JFO. As per the Gradation List published on 31.03.1994, she was at Sl. No.31, whereas the private respondents were at Sl. No.63, 89, 91, 105, 109 and 125 respectively. On 16.04.1996, she was promoted to the post of FO and on 31.12.1998, the Gradation List in the cadre of FO was published, wherein the present appellant/writ petitioner was at Sl. No.151 and the name of private respondent Nos.5--12 did not appear in that Gradation List. In the next Gradation List published on 31.12.2006, the name of the appellant/writ petitioner was at Sl. No.3 and the private respondents were enlisted in between Page No.# 15/42 Sl. No.49--139 and thereafter no Gradation List was published.
Mr. Mannan, learned counsel submits that in between 2006 to 2008, though there were six (6) vacant posts of ADO from FO but no DPC was held during these period to fill up the six vacant posts of ADO. In the year 2009, another 20 (twenty) fresh vacancies arose in the cadre of ADO and in the same year, on 19.10.2009, the DPC was held for promotion to 26 (6+20) posts of ADO, by violating the norms of DoPT. In the merit list, present appellant/petitioner stood at Sl. No.1 and the private respondents found place in the extended zone of consideration. On 04.12.2009, the impugned promotion order was issued filling up the 26 posts of ADO, wherein the private respondents were placed en block above the appellant/petitioner, who stood at Sl. No.1 in the merit list of the DPC held on 19.10.2009. Moreover, the appellant was much senior in the feeder cadre of FO than the private respondents. Therefore, the Roaster Point seniority awarded to the private respondents is in violation of the mandates of the Hon'ble Apex Court as well as gross violation of the DoPT Rules. Moreover, the appellant had no access to scrutiny of the DPC proceeding and to know about the illegality done, till the next promotion to the post of DO given in the year 2014.
It is further submitted by Mr. Mannan, learned counsel, that in the year 2014, another DPC was held for 24 posts of DO, out of which 6 vacancies of the year 2012, 12 vacancies of the year 2013 and another 6 vacancies of the year 2014 respectively, clubbing all the 24 posts together, in violation of the rules and thus many undeserved candidates got promotion to the DO including some promotees who were promoted in the year 2009 and junior in the feeder cadre. On 12.08.2014, the promotion order to the post of DO was issued from the post Page No.# 16/42 of ADO and it came to the knowledge of the appellant/petitioner that some of the promotees who were junior to her in the feeder cadre and promoted to the ADO on the same date were given promotion to the post of DO superseding her. On 29.10.2014, one promoted DO expired and in his place, without holding any DPC, another person i.e. respondent No.13-Mr. D. Suresh was given promotion in violation of the Rules, which was later on set aside by the Hon'ble High Court.
It is submitted by Mr. Mannan, learned counsel, that on 31.12.2021, the Gradation List of DO was published, wherein the appellant/petitioner was placed at Sl. No.35 and the private respondent No.12, 14, 16, 17 were placed at Sl. No.2, 3, 4 and 7 respectively but the same has not considered by the Hon'ble Single Judge, while passing the impugned judgment and order dated 23.03.2021.
Mr. Mannan, learned counsel submits that the finding of the learned Single Judge is not sustainable as because there was no question of challenging the DPC of 2009, as the appellant had no access to inspect the internal documents of the Rubber Board at the relevant point of time. In fact, the appellant came to know about the DPC meeting of 2009, only after going through the affidavit-in- opposition filed by the Rubber Board in the Writ Petition filed by the appellant/petitioner in the year 2014.
It is submitted by the Mr. Mannan that she was affected by the promotion of her juniors from ADO to DO in the year 2014 and the respondent Rubber Board had wrongly placed her junior incumbents above her, while issuing the impugned promotion order dated 04.12.2009. In the said promotion order, some private respondents illegally got entry in the extended zone of consideration and Page No.# 17/42 thus got opportunity to supersede the appellant who was placed at Sl. No.1 of the DPC minutes. Thereafter, in the year 2014, in an arbitrary manner, promotions were given to the private respondent from the post of ADO to the post of DO. Therefore, there was no time bar for filing the Writ Petition in the year 2014, even challenging the impugned Office Memorandum dated 04.12.2009.
As regard the finding of the learned Single Judge regarding challenge to the DPC held on 2014 for filling up the post of DO, the appellant submits that the DPC minutes being internal documents, there is no scope for the appellant to challenge the same and therefore, the learned Single Judge's finding in this regard is erroneous and not sustainable in the eye of law. Moreover, although the learned Single Judge mentioned about the plea taken on behalf of the Writ Petitioner in respect of difference between shortfall of reservation and number of backlog reserved but in the impugned judgment and order dated 23.03.2021, the learned Single judge has restricted himself to discuss the case of the writ petitioner on that point, on the ground that the DPC was not challenged in all the Writ Petitions and as such the impugned judgment and order dated 23.03.2021 is liable to be set aside.
It is further argued by Mr. Mannan, learned counsel, that the detail explanation about the treatment of backlog reserved vacancies of Scheduled Caste (SC), Scheduled Tribes (ST) and Other Backward Communities (OBC) as a distinct group and non-applicability of 50% ceiling thereon is given in the O.M. dated 15.07.2008, published by DoPT. As per the said Rules, the treatment of backlog reserved vacancies of SC and ST would be treated as a separate and distinct group and would not be considered together with the reserved Page No.# 18/42 vacancies of the year in which they are filled for determining the 50% ceiling reservation. Therefore, the 50% ceiling will apply on the number of vacancies arising in the current year and the backlog reserved vacancies of SC, ST and OBC category candidates, in case of promotion of earlier years would be treated as separate and distinct group and would not be considered together with the reserved vacancies of the year in which they are filled for determining the ceiling of 50% reservation on total number of vacancies of that year. But the learned Single Judge failed to adjudicate the issue, on the light of the explanation backed by the O.M. dated 15.07.2008 and the wrong explanation put forwarded by the respondent Rubber Board authorities has been appreciated and as such the impugned order is bad in law and liable to be set aside and quashed.
5. Submissions of the learned counsel for the Appellant in WA 337/2021:
Mr. Y.S. Mannan, learned counsel, submits that the respondent authorities did not hold any DPC in the year 2006, 2007 and 2008, although there were six (6) vacant post of ADO. In the year 2009, twenty (20) more vacancies occurred in the cadre of ADO. Accordingly, in 2009, the DPC for the promotion to the cadre of ADO was held by clubbing the vacancies of the years 2006--2009, which comes to twenty six (26) and on 04.12.2009, the order for promotion for 26 vacancies were made and the private respondents were placed en-block over Smti. Rashmi Rekha Majumder, who is senior to the private respondents in the cadre of FO. The appellant was promoted to the post of ADO, prior to the promotion effected on 04.12.2009 but no Gradation List was published after the said promotion.
Page No.# 19/42 It is submitted by Mr. Y.S. Mannan, learned counsel, that out of the twenty (20) fresh vacancies, only ten (10) posts can be filled up by way of reservation. Moreover, considering the six (6) vacancies from the year 2006 to 2008, three (3) posts can only be filled up by reservation and the remaining 13 posts required to be filled up by General category candidates. But in the instant case, nineteen (19) posts were filled up by the Reserved category candidates, which is against the settled position of law.
It is further submitted that in the DPC held on 19.10.2009, Smti. Rashmi Rekha Majumder was at Sl. No.1 in the merit list and the private respondents were far below at Sl. No.47 onwards and in the extended zone in the order of seniority of promotion and if clubbing of vacancies were not done that the zone of consideration would be less and considering the twenty fresh vacancies of 2009, the extended zone of consideration would be 20x5=100. Said extended zone of consideration guideline was formulated by an Office Memorandum dated 06.01.2006. Even if clubbing together vacancies are considered, the extended zone would be 26x5=130. Therefore, the candidates at Sl. No.139, 146, 156 and 157 of the Gradation List of FO could not have been promoted and put at Sl. No.19, 6, 11 and 15 of the promotion order dated 04.12.2009, that too above Smti. Rashmi Rekha Majumder.
The further submission of the learned counsel is that it is the case of the appellant/petitioner that on 12.08.2014, notification for promotion to the post of DO was issued and as there was no Gradation List in the cadre of ADO, the appellant/petitioner was not promoted and the private respondents were promoted, who were much junior to him. On 29.10.2014, one Office Memorandum was issued, promoting one D. Suresh as D.O., without any D.P.C., Page No.# 20/42 whose promotion was set aside by this Court vide order dated 23.03.2021. On 31.12.2021, the Gradation List of DOs was published, wherein the appellant/petitioner was at Sl. No.24 and Smti. Rashmi Rekha Majumder was at Sl. No.35, whereas the respondent No.7 and respondent No.13 were placed at Sl. No.1 and at Sl. No.2 respectively. This Gradation List shows that the persons much junior to the appellant as well as Smti. Rashmi Rekha Majumder have superseded them but the learned Single Judge did not consider those issued raised by the appellant/petitioner. As per the learned counsel for the appellant/petitioner, the learned Single Judge held that the DPC having not been challenged, the relief sought for in a belated stage cannot be considered, which, according to learned counsel is unsustainable.
6. In support of his submissions, the learned counsel for the appellant/petitioner has relied upon the following case laws:
(i) Union of India and others vs.Vipinchandra Hiralal Shah, reported in (1996) 6 SCC 721 (para 7, 11 & 13),
(ii) Vijay Singh Charak vs.Union of India and others, reported in (2007) 9 SCC 743.
(iii) Jagdish Prasad vs.State of Rajasthan and others, reported in (2011) 7 SCC 789.
(iv) Bimlesh Tanwar vs. State of Haryana and others, reported in (2003) 5 SCC 604.
(v) Deba Kumar Dutta vs. State of Assam and others, reported in 2011 (3) GLT 387, &
(vi) Manoj Parihar and others vs.State of Jammu & Kashmir and others, reported in 2022 (O) Supreme (SC) 556.
(vii) Ajit Singh (2) v. State of Punjab, reported in 1999 (7) SCC 209.
Page No.# 21/42
(viii) U.P. Power Corporation Limited v. Rajesh Kumar and others, reported in 2012 (7) SCC 1.
7. Submissions of the Respondent Nos.2--4 in both the Appeals:-
On the other hand, Mr. D. Nath, learned Standing Counsel, Rubber Board appearing for respondent Nos.2--4 submits that the learned Single Judge has rightly dismissed the Writ Petitions on the ground of delay following the ratio laid down by the Hon'ble Apex Court in the case of P.S. Sadasivaswamy vs. State of Tamil Nadu reported in AIR 1974 SC 2271, in as much as the promotion given by the O.M. dated 04.12.2009 has been challenged in the year 2014. Moreover, all the incumbents who were promoted have not been made parties who are necessary parties in the Writ Petitions in as much as if the promotion order dated 04.12.2009 is interfered with in any manner, all of them will be affected.
Mr. Nath, learned counsel, while referring to their affidavit-in-opposition, submits that the promotion process of 2009 to the cadre of ADO has been as per the norms. It is submitted that by the O.M. dated 04.12.2009, 26 FOs were promoted to the post of ADO, out of which the promotees at Sl. No.1--19 were SC/ST candidates. In 2009, thirty one (31) posts of ADO were vacant and out of which, 19 was consequential vacancies, 7 were additional sanctioned posts and 5 were backlog vacancies for SC/ST candidates. In addition to the above, at that time 8 SC/ST backlog points kept unfilled in reservation roster as the said vacancies were filled by General Category candidates during the year 2005 and 2006. Apart from that there were 2 backlogs in 2003 and 3 backlogs in 2004, total 5 (five). Hence, 13 backlog SC/ST reservation vacancies/points existed. As per the SIU report of the North East Region, the strength of Technical Officers were restructured. Thus, 26 vacancies of ADOs arose at that time including Page No.# 22/42 existing, backlog and consequential vacancies. As per the Reservation Rules, the said 13 backlog reservation vacancies were taken as separate group and 50% of the 13 consequential vacancies i.e. 6 nos. also filled up by SC/ST candidates against the current year reservation and the remaining 7 were by the General Category candidates vide O.M. dated 04.12.2009. Thus, 19 FOs from SC/ST category with required experience as per the Recruitment Rules were promoted as ADO. As there was regular vacancies only in SC/ST, the 19 SC/ST candidates were promoted against SC/ST and placed above the seven unreserved promotees including the present appellant, who were promoted against deputation vacancy. At the time of convening the DPC on 19.10.2009, for the post of ADO, the number of vacancies including existing, anticipated/ deputation was assessed as 31 and as per Rules, 50 from normal zone and 19 from extended zone i.e. upto 155 (31x5 times) were taken into consideration who are eligible to be considered as per Recruitment Rules.
Mr. Nath, learned counsel, further submits that the promotion given by the O.M. dated 04.12.2009 has already been acted upon long back and therefore, the settled position in the organization may not be unsettled on the basis of a belated challenge made by the appellant in the year 2014. He submits that the process of promotion undertaken in the year 2009 to the post of ADO and the promotion process undertaken in the year 2014 for the post of DO were as per the norms and guidelines. However, as regards the statement in respect of Mr. D. Suresh/respondent No.13 in the Writ Petition is not reiterated at this stage, as this Court has already interfered with his selection and promotion as DO.
It is further submitted by Mr. D. Nath, learned counsel, that although the Gradation List of ADO has not been published before the promotion exercise in Page No.# 23/42 2009, the respondent Rubber Board is maintaining seniority list of all employees as per the establishment register and the same has been duly followed.
As regards the ground taken in the Appeal to the extent that the promotion of more than 50% reserved category candidates, extension of zone of consideration beyond permissible limit and non-maintenance of seniority list, he submits, are not correct and based on records. The promotions in question were given by following the Recruitment Rules and the relevant Reservation Policy, as existed during that time and while filling up the post earmarked for reserved category candidates, some juniors persons were promoted as they were within the zone of consideration and the same is legally permissible.
Lastly, it is submitted by Mr. D. Nath, learned counsel, that the relevant office records furnished before the Court reveals that the roster seniority has been followed for promotion to the post of ADO and the DO.
8. Submissions of the Respondent Nos.5--24:-
Mr. B. Sarma, learned counsel appearing for the private respondents, submits that at the outset, the challenge to the O.M. dated 04.12.2009, promoting incumbents to the cadre of ADO and the O.M. dated 12.08.2014, promoting incumbents to the cadre of DO are not maintainable for non-joinder of necessary parties. Moreover, the basic ground for challenging the above mentioned two Office Memorandums towards promoting incumbents to the cadre of ADO and DO in the Rubber Board is in violation of the procedure established by law providing for reservation in promotion. It is the settled principle of law that any order affecting a party to a proceeding has to be Page No.# 24/42 afforded an opportunity to defend him or her and place his side of the matter but having not been done, the challenge to the O.Ms. dated 04.12.2009 and 12.08.2014 is not maintainable in law.
It is further contended that the challenge made to the O.M. dated 04.12.2009 is barred by extreme delay and latches in approaching this Court by the appellants/writ petitioners in as much as the promotion to the cadre of ADO was affected on 04.12.2009 and the appellants/writ petitioners have approached this Court ventilating their grievances against the promotion order dated 04.12.2009 in the year 2014 i.e. after five years from the date of effecting the promotion. If at this juncture the said promotions are interfered with, it would unsettle the settled position in hierarchical set up of posts in the Rubber Board and would result in a catastrophe in the overall administration in the organization. As such, the Hon'ble Single Judge has rightly refused to interfere with the promotion that were affected on 04.12.2009, as per the various decisions of the Hon'ble Apex Court, wherein it was held that challenge to a promotion order needs to be made within a year of effecting the promotion and there is no infirmity in the said finding/decision of the Hon'ble Single Judge.
It is further submitted by Mr. B. Sarma, learned counsel, that the appellant/writ petitioner, Rashmi Rekha Majumder has no cause of action to challenge the promotion orders that were affected on 04.12.2009 in as much as she herself is a beneficiary of the said O.M. dated 04.12.2009 and she at best claim for conferring her the seniority above the incumbents at Sl. No.1--19 of the said Office Memorandum, whereby the incumbents were promoted to the post of ADO. Furthermore, the appellant/writ petitioner has no chance to be promoted to the cadre of DO ahead of the incumbents at Sl. Nos.17--24 of the Page No.# 25/42 O.M. dated 12.08.2014 in as much as the incumbents at Sl. Nos.1--16 of the same O.M. dated 12.08.2014 are all General Category candidates who are admittedly senior to the appellant/writ petitioner and she cannot in any way supersede them in the cadre of DO. In that view of the matter, any examination of the contention raised by the appellant/writ petitioner in the instant case, he submits would merely be an academic exercise and no relief would be available to the appellant/writ petitioner, and in any event no interference is called for by this Court to the O.M. dated 04.12.2009 and 12.08.2014 respectively and prays for dismissal of the Appeal.
9. We have considered the submissions advanced by the learned counsel for the parties and carefully examined the materials on record. We have also peruse the impugned judgement and order dated 23.03.2021 passed by the learned Single Judge.
10. The batch of writ petitions filed by the appellants have been dismissed on being not maintainable on the ground that the minutes of DPC has not been challenged and only the consequential orders have been challenged. The learned Single Judge also held that challenge has been made belatedly and is also hit by principle of non-joinder of necessary parties. However, the challenge to the promotion of one D. Suresh vide impugned OM dated 29.10.2014 has been sustained and set aside thereby partly allowed the writ petition 5815/2014 of appellant Sri Prasanta Barua.. Thus, we find that writ petitions have been dismissed and rejected basically on technical grounds.
11. Smti. Rashmi Rekha Majumder was appointed on 01.03.1989 as JFO. As per the Gradation List published on 31.03.1994, she was at Sl. No.31, whereas the private respondents were at Sl. No.63, 89, 91, 105, 109 and 125 Page No.# 26/42 respectively. On 16.04.1996, she was promoted to the post of FO and on 31.12.1998, the Gradation List in the cadre of FO was published, wherein the appellant was placed at Sl. No.151 and the name of private respondent Nos.5-- 12 did not appear in that Gradation List. In the next Gradation List published on 31.12.2006, the name of the appellant was placed at Sl. No.3 and the private respondents were in between Sl. No.49--139 and undisputably, thereafter, no Gradation List was published.
12. The appellant Sri Prasanta Barua was initially appointed as JFO on 15.02.1989. As per the Gradation List published on 31.03.1994, the appellant was placed at Sl. No.29 and the appellant Smti. Rashmi Rekha Majumder was placed at Sl. No.31, whereas the respondent Nos.5, 6, 7, 9, 12 and 13 were at Sl. No.63, 89, 91, 105, 109 and 125 respectively. The names of other private respondents were not included in the said Gradation List published on 31.03.1994. On 16.04.1996, the present appellant/petitioner was promoted to the post of FO. In the Gradation List of FO, published on 31.12.1998, the present appellant was placed at Sl. No.149 and appellant Smti. Rashmi Rekha Majumder was placed at Sl. No.151 but none of the private respondent's name found place in the said Gradation List. On 02.06.2006, the appellant/petitioner was promoted to the post of ADO and in the Gradation List of FO, published on 31.12.2006, the name of the appellant was at Sl. No.113 but none of the respondents' name found place therein. Thereafter, undisputedly, no Gradation List was published.
13. On consideration of the materials on record we find that the respondent authorities have not fairly followed the O.M. on reservation for SC/ST and other backward classes in service issued by the DoPT, Govt. of India, the O.M. dated Page No.# 27/42 10.03.1989 and O.M. dated 06.01.2006 and O.M. dated 30.01.2015 and which contains guidelines for the DPCs and procedure to be adopted in conduct of DPC. In our view, the DPC ought to have considered the year wise vacancies and if any vacancy arose after the last DPC, it is required that supplementary DPC be constituted for promotion. We have noticed that without the gradation list being finalized, the DPCs were conducted to consider the promotion of the various candidates to the promotional post of ADO and DO. It is also taken note that O.M. dated 10.03.1989 indicates that the vacancies of various periods cannot be clubbed together for en- bloc promotion, although it may be permissible for the arithmetic calculation only.
14. We take note that from the year 2006 to 2008, there were six (6) vacant posts of ADO from FO but no DPC was held during these period to fill up the said vacant posts of ADO. In the year 2009, 20 (twenty) fresh vacancies in the cadre of ADO and in the same year, on 19.10.2009, the DPC was held for promotion to all 26 posts of ADO., by violating the norms of DoPT. In the merit position, present appellant Smt. Rashmi Rekha Majumder appeared at Sl. No.1 and the private respondents found place in the extended zone of consideration. On 04.12.2009, the impugned promotion order was issued for 26 posts of ADO, wherein the private respondents were placed en block above the appellant Smt. Rashmi Rekha Majumder, whose name appeared at Sl. No.1 in the merit list of the DPC held on 19.10.2009, purportedly on the basis of roster point seniority. It is also not disputed that the appellant was senior in the feeder cadre of FO to the private respondents. Thus, in our view, the Roster Point seniority conferred to the private respondents for determination of seniority is in violation of the mandates of law.
Page No.# 28/42
15. In the year 2014, a DPC was held for 24 posts of DO, out of which 6 vacancies of the year 2012, 12 vacancies of the year 2013 and 6 vacancies of the year 2014 respectively, clubbing all the 24 posts together. Consequently, vide dated 12.08.2014, the promotion order to the post of DO was issued. On perusal of the record, we find that many candidates who were junior to appellants in the feeder cadre and promoted to the ADO on the same date were given promotion to the post of DO. It is reflected that on 29.10.2014, one promoted DO expired and in the said post, Mr. D. Suresh, respondent No. 13, was promoted without any DPC. It is noticed that said promotion of D. Suresh has been set aside. On the face of the record, such action on the part of respondent authorities is in clear violation of the rules/guidelines holding the field thereby many undeserved candidates have been promoted to the post of DO unfairly allowed them to march ahead of the appellants. The candidates promoted to the post of ADO and DO, superseding the appellants/writ petitioners were not even born in the Gradation List being Gradation Lists of 1998, 2006 and 2009.
16. The O.M. dated 15.07.2008 is with regard to treatment of backlog reserved vacancies SCs/STs/OBCs as a distinct group and non-applicability of 50% ceiling. On reading of the above O.M., it reflects that the backlog reserved vacancies of SCs and STs would be treated as a separate and distinct group and would not be considered together with the reserved vacancies of the year in which they are filled, for determining the ceiling of 50% reservation on total number of vacancies of that year. It is also provided that to treat the backlog reserved vacancies of OBCs also as a separate and distinct group, as that of the SCs and STs are being treated. Thus the ceiling of 50% reservation on filling of reserved vacancies, would now only apply to the vacancies which arises in the Page No.# 29/42 current year and the backlog reserved vacancies of SCs, STs and OBCs, in case of direct recruitment of backlog reserved vacancies of SCs and STs, in case of promotion of earlier years, would be treated as a separate and distinct group and would not be considered together with the reserved vacancies of the year in which they are filled, for determining the ceiling of 50% reservation on total number of vacancies in that year. Thus, there is no ambiguity in O.M dated 15.07.2008.
17. The O.M. dated 15.07.2008 also provides that there is a distinction between the short fall of reservation and number of backlog reserved vacancies in a cadre. The short fall of reservation of a particular reserved category in a cadre means the difference between the total number of reserved posts for that category in the cadre according to the post based reservation and the number of persons that categorically appointed by reservation and holding the post in the cadre. On the other hand, the backlog reserved vacancies of a category are those vacancies, which were earmarked reserved for that category in an earlier recruitment year, according to the post based reservation but remain unfilled in the previous recruitment attempt on account of non-availability of suitable candidates, belonging to that category and are still lying unfilled. It also clarifies the differences by way of illustrations.
18. The O.M. dated 10.03.1989 provides which is reproduced herein under:
"2.1.1. Selection Method: Where promotions are to be made by selection method as prescribed in the recruitment rules, the DPC shall, for this purpose of determining the number of officers who will be considered from out of those eligible officers in the feeder grade(s), restrict the field of choice as under with reference to the number of clear regular vacancies proposed to be filled in the year:
No. of vacancies. Number of officers to be considered. 1 5 Page No.# 30/42 2 8 3 10 4 3 times the number of vacancies.
2.1.3. While merit has to be recognised and rewarded, advancement in the officer's career should not be regarded as a matter of course but should be earned by dint of hard work, good conduct and result oriented performance as reflected in the annual confidential reports and based on strict and rigorous selection process and the bench mark. If candidates from SCs/STs obtain on the basis of their position in the aforesaid general list, lesser number of vacancies that are reserved for them, the differences should be made up by selected candidates of these communities in the separate Select Lists for SCs and STs respectively.
2.4.1. Where for reason beyond control, the DPC could not be held in an year(s), even though the vacancies cross during that year for year(s), even first DPC that meets thereafter should follow the following procedure:
(i) Determined the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years those officers only who would be within the field of those with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a 'Select List' by placing the select list of the earlier year above the one for the next year and so on.
2.4.2. Where a DPC has already been held in a year, and further vacancies arise during the same year due to death, resignation, voluntary retirement, etc, or because the vacancies were not intimated to the DPC due to error or omission on the part of the Department concerned, the following procedure should be followed:
(i) Vacancies due to death, voluntary retirement, new creation, etc. clearly belong to the category which could not be foreseen at the time of placing facts and materials before the DPC. In such cases, another meeting of the DPC should be held for drawing a panel for these vacancies as these vacancies could not be anticipated at the time of holding the earlier DPC. If, for any reason, the DPC cannot meet for the second time, the procedure of drawing up of year-wise panels may be followed when it meets next for preparing panels in respect of vacancies that arise in subsequent year(s).
(ii) In the second type of cases of non-reporting of vacancies due to error or omission (i.e. though the vacancies were there at the time of holding of DPC meeting they were not reported to it), it results in injustice to the officers concerned by artificially restricting the zone of consideration. The wrong done cannot be rectified by holding a second DPC or preparing a year wise panel. In Page No.# 31/42 all such cases, a review DPC should be held keeping in mind the total vacancies of the year.
2.4.3. For the purpose of evaluating the merit of the officers while preparing year wise panel, the scrutiny of the record of service of the officers should be limited to the records that would have been available had the DPC met at the appropriate time. For instance for preparing a panel relating to the vacancies of 1978 the latest available records of service of the officers either upto December, 1977 or the period ending March, 1978 as the case may be, should be taken into account and not the subsequent ones. However, if on the date of the meeting of the DPC, departmental proceedings are in progress and under the existing instructions sealed cover procedure is to be followed, such procedure should be observed even if departmental proceedings were not in existence in the year to which the vacancy related. The officer's name should be kept in the sealed cover till the proceedings are finalised.
2.4.4. While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies relate to earlier year(s)".
19. The O.M. dated 06.01.2006 provides as follows:
"Promotion by Selection 6.11. In case of promotion by selection, selection against vacancies reserved for Scheduled Castes and Scheduled Tribes should be made only from among those Scheduled Caste/Scheduled Tribe officers who are within the normal zone of consideration. Where adequate number of SC/ST candidates are not available within the normal field of choice, it may be extended to 5 times the number of vacancies and the SC/ST candidates (and not any other candidate) coming within the extended field of choice should also be considered against the vacancies reserved for them. The following instructions will apply to the filling of vacancies reserved for Scheduled Castes and Scheduled Tribes in such promotions:
(i) Scheduled Caste and Scheduled Tribe officers who are within the normal zone of consideration shall be considered for promotion alongwith others and adjudged on the same basis as others and those Scheduled Caste and Scheduled Tribe officers amongst them who are selected on that basis may be included in the general select list. If some of the SC/ST candidates so selected have been selected on their own merit in all respect and are so placed in the select list that their names fall within the number of unreserved vacancies, such candidates shall be adjusted against unreserved vacancies.
(ii) If number of candidates from Scheduled Castes and Scheduled Tribes other than the candidates selected on their own merit who are adjusted against unreserved vacancies is less than the number of vacancies reserved for them, the difference should be made up by selecting candidates of these communities who are in the zone of consideration irrespective of merit but who are Page No.# 32/42 considered fit for promotion.
(iii) If the number of SC/ST candidates found fit for promotion against reserved vacancies is still less than the number of vacancies reserved for them, the difference should be made up by selecting candidates of these communities who are in the extended zone of consideration irrespective of merit but who are considered fit for promotion.
(iv) A select list should then be prepared in which the names of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, are arranged in the order of merit and seniority according to the general principles for promotion to selection posts. However such of the SC/ST candidates who are in the extended field and get selected should en block be placed in the end by maintaining their inter se position in accordance with their gradation by the DPC. This select list should thereafter, be followed for making promotions in vacancies as and when they arise during the year".
20. On bare reading of the above Office Memorandums conjointly which regulate and provide the circumstances and criteria, ambit and methods by which the promotion should be governed, which would be become the yardstick of fairness, provides for year wise conduct of DPC, year wise vacancy has to be prepared. A select list should then be prepared in which the names of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, are arranged in the order of merit and seniority according to the general principles for promotion to selection posts. However, such of the SC/ST candidates who are in the extended field and get selected should en block be placed in the end by maintaining their inter se position in accordance with their gradation by the DPC. This select list should thereafter, be followed for making promotions in vacancies as and when they arise during the year. (Emphasis by us).
21. In our considered view, the authorities have failed to adhere to the requirements of the relevant Rules/Guidelines for promotion from the post of FO to ADO and from ADO to DO as we find that no methodology either by conducting year wise DPC or consideration of year wise vacancies appears to have been followed. We find that when the DPC was held, all the vacancies of Page No.# 33/42 all the previous years as well as the current year appears to have been clubbed together. The vacancies would be clubbed only for the purpose of calculating of arithmetic figure but ought to have been filled up in accordance with year wise vacancies and considering the officers eligible for promotion, in accordance with the relevant Rules and Guidelines. It also reveals that Seniority has been determined perfunctorily in terms of roster point which, in our view, is not permissible.
22. It is trite that the affirmative action in terms of Article 16(4) of the Constitution of India is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the Roster Point. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the Constitutional Scheme. In the present case, it is apparent that the seniority has been fixed on the basis of the Roster Point which was taken for the purpose of promotion while calculating the number of vacancies/backlogs by clubbing the vacancies of all the years when the DPC was held, which resulted in deprivation of the appellants.
23. During the course of hearing, the respondent authorities were directed to bring on the record as to whether any seniority list is maintained in absence of Gradation List and as to whether Roster Point Seniority is given to the promotees who belongs to reserved category and whether they were given promotion only to fill up the back log vacancies of reserved category candidates. Accordingly, record placed. On perusal of the record, it reveals that Roster Point Seniority was given to the reserved category candidates, while filling up the post Page No.# 34/42 in higher cadre vacated by reserved category incumbents. We find that no seniority list was prepared by the respondent authorities.
24. We are of the view that the non-adherence to the relevant Rules and Guidelines goes to the very root of the matter, where the technical considerations of non-joinder of parties and non-challenging of the DPC minutes as well as delay in filing the Writ Petitions, should pave way to the consideration on merit, which we have dealt with herein in above. More so, the cause of delay in challenging the promotion of the private respondents in the year 2009 has been explained by the appellants that it is only when promotions were made in the year 2014, the appellants/petitioners become aware of being superseded and therefore, the writ petitions were filed as and when they found themselves aggrieved by the promotion of the private respondents. Thus, we are of the view that dismissal of the writ petitions on above technical grounds is not warranted in the facts and circumstances of the present case.
25. There would be hardly any quarrel to the proposition wherein the Hon'ble Supreme Court in the case of P.S. Sadasivaswamy vs. State of Tamil Nadu reported in (1975) 1 SCC 152, held that a petition filed after 14 years challenging the promotion of another employee should not be entertained and if a person has a grievance in this regard, he must approach the court at the earliest opportunity. In our considered view, same is clearly distinguishable as in the present case the appellants/ writ petitioners have approached the court in the year 2014 immediately after they were found superseded and aggrieved. Having regard to the principle of non joinder of parties, since some of the private respondents who were junior to the appellants have been impleaded, we are of the view that said principle is not attracted, in view of the reason that the action Page No.# 35/42 of respondent authorities are found to be not in terms of relevant rules and its procedure and if any party is not impleaded his/her interest shall be protected in the facts and circumstances of the present case. That apart, no one can claim absolute right of hearing on the basis of the illegal action and order that had been occasioned on the part of authorities concerned. Therefore, the submissions of the learned counsel for the respondents have received due consideration by this court only for rejection.
26. Having regard to the submission of learned counsel for the private respondents that it would unsettle the settled position in hierarchical set up of posts in the Rubber Board and would result in a catastrophe in the overall administration in the organization, we are not persuaded by such submission in the facts of the present case as in our view settled position cannot be unsettled shall not be construed to propagate and legitimize an illegality. If seniority are assigned to person not in accordance with the rules and procedure and on that basis promotion is given, the said principle cannot be applied. Seniority not being vested right and merely a civil right an opportunity in the form of circulation of draft seniority list is a valid compliance of both principle of natural justice and law. But no seniority or gradation list was prepared prior to conduct of DPC. One cannot claim inequity and illegality. In the present case, as noted above, the requirement of rules and procedure has not been followed. In fact, no seniority list was ever prepared and if at all the seniority had been based on roster point seniority.
27. Now, we would refer to some of the case laws of the Hon'ble Supreme Court.
Page No.# 36/42 In the case of Union of India and others vs.Vipinchandra Hiralal Shah, reported in (1996) 6 SCC 721, the Hon'ble Supreme Court has held which is reproduced here-in-under:
"11. It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst State Civil Service officers who fulfill the conditions regarding eligibility on the first day of the January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fall within the zone of consideration for selection in that year.
13. Therefore, while upholding the judgement of the Tribunal that the respondent is entitled to seek fresh consideration on the basis that the selection should be made for vacancies occurring in each year separately, but in substitution of the directions given by the Tribunal in the regard, the following directions are given :-
(1) The number of vacancies falling in the quota prescribed for promotion of State Civil Service officers to the Service shall be determined separately for each year in respect of the period from 1980 to 1986.
(2) The State Civil Service officers who have been appointed to the Service on the basis of the impugned Select List of December 1986/January 1987 and were senior to the respondent in the State Civil Service shall be adjusted against the vacancies so determined on year wise basis.
(3) After such adjustment if all the vacancies in a particular year or years are filled by the officers referred to in paragraph (2), no further action need be taken in respect of those vacancies for the said year/years.
(4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional Select List/Lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year.
(5) If the name of the respondent is included in the notional Select List/Lists prepared for any particular year/years during the period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the Service against that vacancy of that year with all consequential benefits.
(6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service officers.
Page No.# 37/42 (7) Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned Select List of December 1986/January 1987."
In the case of Vijay Singh Charak vs.Union of India and others , reported in (2007) 9 SCC 743, the Hon'ble Supreme Court has held which is reproduced here-in-under:
"11. However, the dicisions in S.H. Kasturi Rangan and Nepal Singh Tanwat (supra) do not, in our opinion, deal with the other principle laid down in the decision in Union of India v. Vipinchandra Hiralal Shah (supra), wherein it has been stated that the Selection Committee should prepare a separate Select List for each year. In our opinion, this means that there cannot be clubbing of vacancies of several years and there cannot be a common Select list for these years.
12. A Select List can only be prepared for a particular year, and only those who are eligible in that particular year alone can be considered for selection in the Select List. Even if the Select List is not prepared in that very year, it will relate back to that particular year.
13. In the present case, a Select List had to be prepared for the year 1991.Hence, only those officers who were eligible for induction into the IFS in the year 1991 could have been considered in the Select List for the year 1991 (even if it is prepared subsequent to 1991).
14. It is obvious, therefore, that clubbing is illegal. Since clubbing has been done for vacancies arising between 1991-95 in the IFS, this was clearly illegal in view of the decision in Union of India v. Vipinchandra Hiralal Shah (supra).
15. In view of the above, the appeal is allowed. The impugned judgments of the Division Bench as well as the Single Bench of the High Court are set aside. Resultantly, the impugned Select List dated 12.9.1995 is quashed. The State Government is directed to prepare a fresh Select list for each year separately considering only those persons/officers who were eligible for selection in that particular year. This exercise must be completed as expeditiously as possible. Any selection made in pursuance of the Select List dated 12.9.1995 stands quashed. Fresh selections and appointments will be made as directed above. No costs."
In the case of Jagdish Prasad vs.State of Rajasthan and others , reported in (2011) 7 SCC 789, the Hon'ble Supreme Court has held which is reproduced here-in-under:
"21. The vacancies have to be determined as per Rule 10 of the 1979 Rules, on the 1st April of every year. If any fraction of vacancies is left over, after the apportionment of vacancies in the manner prescribed, the same shall be appointed through the quota of various methods prescribed in continuous cyclic order, giving precedence to the Page No.# 38/42 promotion quota. Appointing authority has to determine yearwise vacancies of earlier years, which were required to be filled in by promotion if such vacancies were not determined and filled earlier in the year they were required to be filled in, in the subsequent years. In other words, the emphasis of the language of these rules is on yearly vacancies and they are required to be filled in with reference to each particular year. The vacancies are required to be determined and filled in as on 1st April of every year, for the vacancies occurring during the financial year, in terms of Rule 10(1)(a).
24. On reading of Rule 24 (6), 24(11) and 24 (11A) of the 1979 Rules conjointly, it is clear that promotions have to be made by the DPC by the criteria and procedure for promotion as applicable in that particular year, to which the vacancies relate. The service experience of an incumbent who has been so promoted, for promotion to higher posts for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. It also requires that pay of a person who has been so promoted shall be re-fixed at the pay scale which he would have derived at the time of his promotion, but no arrears of pay shall be allowed to him. The Government or the appointing authority has the power to order for the review of the proceedings of DPC held earlier on account of some mistake apparent on the face of the record oron account of substantial error affecting the decision of the DPC or even for any other sufficient reason like change in seniority, wrong determination of vacancies, etc.
29. In light of this, we now come to the conduct of the Government which we cannot but help to comment upon. Right from 1983-84 till 1993-94 no examination has been conducted by the appropriate authority despite the fact that they also issued notifications for holding exams on a few of these occasions. If there was a representation from the Rajasthan Transport Inspector's Union, it cannot be considered as a sufficient cause or reason for not holding the examinations for more than ten years and causing serious prejudice to the candidates who might have been sufficiently meritorious to qualify in the exams and be considered for promotion to 50% of the posts under the promotion quota. It is a matter of regret that a Government can take such a stand before a Court of law and expects the Court to accept such a submission. It is ex facie untenable. Once therules stand clear, the Authority concerned is expected to act in accordance with law and not to defeat the law. One who defeats the law by his unjustifiable and unsustainable acts is liable for the consequences of such default. We fail to understand why the Government and its entire hierarchy had shut its eyes to this gross violation of statutory rules over such a long period.
31. Even after 1993-94, the process of selection adopted by the State Government cannot be accepted. The preparation of seniority list, method of selection and clubbing of vacancies are apparently in violation of the statutory Rules as afore- noticed. The Tribunal, in its judgment, has noticed Rule 24(ii) of the 1979 Rules and observed that even if the DPC held together vacancies of several years, yet the vacancy of each year should be determined and also filled up separately. In this regard the reference was also made to the judgment of this Court in the case of Vinod Kumar Sangal v. Union of India [(1995) 4 SCC 246].
34.We also cannot ignore the fact that a Government servant gets a right, (though not indefeasible right), to be considered for promotion to the appropriate post to which he is eligible and entitled, in accordance with law. In the case of Union of India and Another Page No.# 39/42 v. Hemraj Singh Chauhan and others [(2010) 4 SCC 290] this Court while dealing with somewhat similar situation held as under:
"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act asmodel employers, which is consistent with their role in a welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."
In the case of Bimlesh Tanwar vs. State of Haryana and others , reported in (2003) 5 SCC 604, the Hon'ble Supreme Court has held which is reproduced here-in-under:
"40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law."
In the case of Manoj Parihar and others vs. State of Jammu & Kashmir and others, reported in 2022 (O) Supreme (SC) 556, the Hon'ble Supreme Court has held which is reproduced here-in-under:
"28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows:
"(i) In Union of India v. Virpal Singh [(1995) 6 SCC 684], this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level.
The Court held that the State was entitled to provide, what came to be known in popular terms as the "catch up rule" enabling the [23]senior general category candidates who got promoted later, to claim seniority over and above the roster point promotee who got promoted earlier.
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(ii) The catch up rule formulated in Virpal was approved by a three member Bench in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715]. This case came to be known as Ajit Singh (I).
(iii) But, another three member Bench took a different view in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4A) were fundamental rights, the right to promotion was a statutory right and that therefore, the roster point promotees have to be given seniority on the very same basis as those having continuous officiation in a post.
(iv) Since Jagdish Lal took a view contrary to the views expressed in Virpal Singh and Ajit Singh (I), the State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed before a Constitution Bench comprising of 5 Judges, in view of the fact that two Benches of coordinate jurisdiction (both three member Benches) had taken diametrically opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as Ajit Singh (II), in Ajit Singh v. State of Punjab [(1999) 7 SCC 209].
(v) Eventually, the Constitution Bench held in Ajit Singh (II) that the roster point promotees cannot count their seniority in the promoted category, [24] from the date of their continuous officiation in the promoted post, vis a vis the general category candidates who were senior to them in the lower category and who were later promoted. As a consequence, Virpal and Ajit Singh (I) were declared to have been decided correctly and Jagdish Lal was declared to be incorrect."
29. Thus, the principle of law discernible from all the aforesaid decisions of this Court is that the roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the interse seniority among those recruited. To put it in other words, the roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts. The position of law as discussed about could be said to be prevailing even while the High Court of Jammu & Kashmir decided by a Full Court Resolution to determine the seniority on the basis of roster points."
28. Reverting back to the present case, it is apparent that the seniority has been fixed on the basis of the Roster Point seniority which was taken for the purpose of promotion while calculating the number of vacancies/backlog by clubbing the vacancies of all the years when the DPC was held, which resulted in deprivation of the appellants. We find that the entire action of the respondent authorities in conducting the DPC by clubbing the vacancies of all the previous years and the current year without adherence to the Rules and Guidelines is illegal as such not sustainable. The respondents authorities have failed to Page No.# 41/42 adhere to the relevant rule/guidelines regulating the procedure for promotion issued vide above referred Office memorandums in conducting the DPC and its consequent promotion orders by clubbing all the vacancies of previous years and the current year, thereby placing the reserved category candidates en block above the general category candidates. Thus, in our view, such action is not sustainable.
29. In view of what has been discussed above, we find that the dismissal of the Writ Petitions on the grounds of non-challenge to the DPC minutes and non-joinder of necessary parties as well as on delay and laches by the learned Single Judge, is not sustainable and accordingly, the impugned judgement and order dated 23.03.2021 passed by the learned Single Judge is interfered with and is set aside, except the setting aside of the promotion order dated 29.10.2014 of Shri D. Suresh, respondent No. 13 herein.
30. Accordingly, writ appeals are allowed. However, considering the fact that the impugned orders of promotion of the private respondents dated 04.12.2009 and 12.08.2014, except respondent no. 13 (Shri D. Suresh) have been given effect to, at this distant point of time, we deem it appropriate to pass the following directions:-
Accordingly, the respondent authorities are directed to prepare a fresh Seniority List, placing the appellants in their respective places by giving them notional promotion, without any consequential financial benefits. It is made clear that the private respondents and other incumbents, who have already been promoted, except the respondent No.13 ( Shri D. Suresh), will not be reverted back, but they be placed in appropriate positions in the fresh Seniority List in terms of this direction.
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31. The writ appeals are disposed of in terms above. No order as to costs.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant