Central Administrative Tribunal - Hyderabad
Shri K.R. Ghanshyam vs State Of Punjab And Others Reported In ... on 21 January, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.A No. 486 OF 2006 DATE OF ORDER: THE 21ST JANUARY, 2009 Between:
Shri K.R. Ghanshyam S/o K.G. Raja Gopal UDC, National Academy of Agricultural Research Management Rajendranagar, Hyderabad. ... Applicant And
1. Union of India rep. by the Secretary Ministry of Agriculture Krishi Bhavan, New Delhi.
2. The Director General Indian Council for Agricultural Research, Krishi Bhavan New Delhi.
3. The Director National Academy of Agricultural Research Management Rajendranagar, Hyderabad ... Respondents Counsel for Applicants : Mr. M.V. Bharathi, Advocate Counsel for Respondents : Mr. N.R. Devaraj, SC for Railways Coram :
The Hon'ble Mr. Justice P. Lakshmana Reddy, Vice Chairman The Hon'ble Mr. R. Santhanam, Member (Admn.) (Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC) This is an application filed aggrieved of the filling up of a SC vacancy of Assistant by way of promotion by a UR candidate instead of filling it up by the applicant who belonged to SC category.
2. The case of the applicant is that he belongs to Scheduled Caste and he was originally appointed as Junior Clerk in 1993 and later promoted as Senior Clerk on 8.1.1999 and he became eligible for next promotion as Assistant on and from 7.1.2004 on completion of five years as Senior Clerk, and though one post of Assistant reserved for SC category in the post based roster fell vacant on account of retirement of one SC candidate by name K. Prabhudas, the respondents instead of filling of that post with the applicant who belonged to SC, filled it up with one UR candidate who belonged to OBC and that it is against the dicta of Supreme Court in R.K. Sabharwal Vs. State of Punjab and others reported in (1995) 2 SCC 745 which was followed by the Govt. of India by issuing instructions in G.I., Deptt. of Per. & Training OM No. 36012/ 2/ 96-Estt. (Res) dated 2nd July 1997 which will hereinafter be referred as `OM'. The applicant further submitted that though he made a representation for his promotion as Assistant in the SC vacancy caused due to discharge of Sri K. Prabhudas, the 3rd respondent has not taken any action and hence he had to approach this Tribunal seeking direction to respondents to consider his case for promotion as Assistant w.e.f. 22.11.04 against the post earmarked for SC category in the post based roster prepared for the Assistant posts consisting the cadre strength of `7'.
3. The respondents in their reply statement admitted that the cadre strength of Assistants is `7' and in the post based roster for this cadre of `7' one point is reserved for SC and against that post K. Prabhudas had been adjusted originally and after his discharge on 10.10.2004, one C. Phani Raj who is the seniormost among UDCs and who belonged to OBC (treating him as UR) is promoted to that vacancy. The respondents did not dispute that the applicant who belonged to SC became eligible for consideration for promotion as Assistant by the date of discharge of SC candidate, K. Prabhudas. The respondents further admitted in their reply that the Govt. of India followed the principle laid down by the Hon'ble Supreme Court in R.K. Sabharwal Vs. State of Punjab and others and issued instructions in DOPT OM dated 2.7.1997 referred to supra to convert vacancy based rosters into post based rosters. The respondents pleaded that they have strictly followed the said instructions, and as per explanatory notes No.12 of Annexure I enclosed to the OM, in the case of small cadres (upto 13 posts), only initial recruitment against the posts shall be by the category for which the post is earmarked, and the replacements shall be by rotation as shown horizontally against the cadre strength as shown in model roster given as Appendix to Annexure III enclosed to the above referred OM dated 2.7.1997. The further case of the respondents is that K. Prabhudas who belonged to SC category consumed the SC roster point in the cadre of seven and therefore subsequent replacements shall be by way of rotation as prescribed in Note No.2 of Appendix to Annexure III. As per those instructions the first replacement in the cadre strength of `7' shall be by `UR' category and therefore the first vacancy caused due to discharge of K. Prabhudas on 10.10.2004 is filled up by seniormost in the cadre of UDC by name P. Phani Raj under UR category but who happened to be OBC candidate. The respondents pleaded that in a cadre of upto 13 posts, the vacancy caused in the reserved category need not be replaced by that reserved category candidate and that even reserved point in the roster also shall be subjected to replacement in the manner given in the model roster given in Appendix to Annexure III to the OM dated 2.7.1997. The respondents further pleaded that if the contention of the applicant that the SC candidate shall be replaced by SC candidate only is accepted, it will cause lot of injustice to the Scheduled Tribe candidates for whom no post could be earmarked in the roster of the cadres having less than 14 posts.
4. It is further pleaded in the reply that there are two UDCs belonging to ST category and one among them is much senior to the applicant and the ST candidates are still to get their due quota of reservation by following the replacement of incumbent by rotation horizontally as prescribed in the model roster and the ST candidates will get their due reservation prescribed under the rules for ST at 7th place. Thus, the applicant has no claim for promotion and the promotion given is as per the reservation orders prescribed by OM dated 2.7.1997, and the applicant has not made out any case either in law or on fact and hence the application is devoid of merits and it is liable to be dismissed.
5. The applicant filed rejoinder stating that the seniority in the cadre of UDC, given in the counter affidavit showing Chandrababu (ST) as senior to the applicant is not correct and that if it is properly fixed following instructions of Govt. of India in OM dated 2.7.1997 at the time of conversion to the post based rosters the applicant will become senior to both ST candidates in the 15 cadre posts of UDC.
6. It is further stated in the rejoinder that there were only six posts in the cadre of Assistants as on 2.7.1977 the date of instructions for shifting to post based rosters and the candidates who had occupied the six posts are the following:
S.No. Name Roster point Date of promotion 1. C. Bagaiah UR 08.02.1991 2. P.G. Kohad (ST) UR 08-02-1991 3. P. Neelakantan UR 03-05-1991 4. M. Narasimha Rao UR 28.03.1995 5. K. Prabhudas (SC) UR 30.04.1996 6. M. Dinesh UR 30.04.1996
Subsequently the cadre strength of Assistants is raised to seven and the same was filled by one T. Srinivas who comes under UR category on 14.1.2000 against roster point No.7 which is meant for SC as per roster. The applicant pleaded that as he was promoted as UDC on 8.1.1999 and completed 5 years and became eligible to be considered for promotion as Assistant on and from 7.1.2004, and as no other SC in UDC cadre who completed 5 years period is available, the applicant ought to have been promoted against SC vacancy that arose on 10.10.2004. As C. Phani Raj, UR candidate is appointed in SC vacancy there is no SC candidate now in the cadre and thus 15% quota for SC category is not observed and maintained since then, and it is contrary to the letter and spirit of the guidelines of the Govt. of India issued in the matter of reservation of SC issued pursuant to the Judgment of Hon'ble Supreme Court in Sabharwal's case.
7. As, during the course of hearing, the counsel for the respondents explained that the respondents have strictly followed Note No.2 in the model roster form applicable to a cadre strength upto 13 posts given in Appendix to Annexure III, the counsel for the applicant submitted that the said note is against the very explanatory note No.10 given in Annexure-I of the OM dated 2.7.1997 and also the principles laid down by the Supreme Court in Sabharwal's case. When it was pointed out to the counsel that the said note in the Appendix is not challenged in the OA, the applicant filed an application for amendment of the OA to include the prayer for setting aside Note No.2 declaring it as illegal and contrary to the principles laid down at para 5 (e) of the Judgment in R.K. Sabharwal's case reported in (1995) 2 SCC 745. The said application in MA 180/ 2008 is allowed by this Tribunal. In the amended para (7A) of the application the applicant pleaded that in the OM dated 2.7.1997, at explanatory note 10 of Annexure-I it is clearly stated that when once the points at which the reserved categories apply are fixed as per the roster and vacancies caused by retirement etc. of persons occupying those points shall be filled by appointment of persons of the reserved categories, and that the said instructions are in consonance with the principles laid down by the Hon'ble Apex Court at para 5 (e) of the Judgment in `Sabharwal's' case but Note No.2 in the model roster given in the Appendix to Annexure III is not only contrary to the letter and spirit of explanatory note of Annexure I but also the principles laid down by the Hon'ble Apex Court and hence it is liable to the set aside.
8. Earlier to this amendment, the applicant got impleaded Sri C. Phani Raj who is promoted in the vacancy caused by discharge of SC candidate as R-4 by an order dated 14.9.2007 passed in MA 333/ 2007. But he did not put in his appearance to contest the claim of the applicant in this OA though he was served with notice.
9. After the applicant carried out the amendment challenging the validity of Note No.2 in the model roster of Appendix to Annexure III, the respondents filed additional reply dated 19.11.2008 reiterating the contentions raised in the original reply. Further, it is stated in the additional reply that the challenge of note 2 of Annexure III requires lot of reasoning indicating as to how this note contravenes the principles laid down by the Apex Court in Sabharwal's case, but no such details are available and hence such relief cannot be decided in this OA and if at all the applicant is aggrieved of such note he should file a separate OA challenging the note in which case the respondents will once again explain as to how it is in accordance with Sabharwal's case. Respondents further pleaded that this challenge of note 2 will have a far reaching effect involving the entire promotion policy of SC and ST of all departments of Govt. of India. The respondents concluded their additional reply stating that entire OM dated 2.7.1997 including note 2 in the Appendix in Annexure III is in accordance with the directions given in Sabharwal's case.
10. The points that arise for consideration in this case are:
(i) Whether the applicant is entitled to challenge Note No.2 of model roster given in Appendix to Annexure III enclosed to the G.I., DOP&T OM dated 2.7.1997 in this OA?
(ii) If so, whether the said Note 2 is liable to be struck down as contrary to the letter and spirit of the OM dated 2.7.1997 and the principles laid down by the Apex Court in Sabharwal's case?
(iii) Whether the applicant ought to have been considered for the SC vacancy caused due to discharge of K. Prabhudas on 10.10.2004?
(iv) Whether the applicant is entitled for the reliefs prayed for?
(v) To what result?
11. The matter was extensively heard on several occasions. Full opportunity was given to both sides' counsel to put forth their submissions in support of their respective pleadings. Both sides are relying upon the Judgment of the Hon'ble Apex Court in Sabharwal's case and the instructions issued by the Govt. of India, Department of Personnel & Training in its OM No. 36012/2/96-Estt. (Res.) dated 2nd July 1997 the subject of which reads as follows:
Subject: Reservation roster - post based Implementation of the Supreme Court Judgment in the case of R.K. Sabharwal Vs. State of Punjab.
12. The copy of the Judgment of the Hon'ble Apex Court as well as the copy of OM dated 2.7.97 are made available by the counsel for the applicant. We have carefully gone through the same keeping in mind the rival contentions of the counsel.
13. Points (i) & (ii):
As seen from OM dated 2.7.1997, it is stated that the Constitution Bench of the Supreme Court in the case of R.K. Sabharwal Vs. State of Punjab as well as J.C. Mallick Vs. Ministry of Railways has held that the reservation of jobs for the backward classes of SC/ ST/ OBC should apply to posts and not to vacancies and that the vacancy based rosters can operate only till such time as the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentage of reservation, and with a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided by the Govt. of India to replace vacancy based rosters by post-based rosters. It shows the object of issuing this OM dated 2.7.1997. This OM contains the principles for preparing the rosters and the said principles are elaborated in the explanatory notes in Annexure-I. The said Annexure contains the guidelines as to how the rosters are to be prepared initially and also how to operate thereafter. The said OM contains model rosters also separately for the cadre consisting of 200, 100, 40 and also for the cadre strength upto 13 posts. Separate explanatory notes are given in respect of the cadre strength upto 13 posts in the form of para 12 of explanatory notes in Annexure-I and also the model roster for promotion for cadre strength upto 13 posts in the form of Appendix to Annexure-III. Here, in the instant case, as we are concerned with the posts of Assistant whose cadre strength is 7, i.e. less than 13, para 12 of explanatory notes given in Annexure-I and the model roster given in Appendix to Annexure-III are relevant and it reads as follows:
Para 12:
In the case of small cadres (up to 13 posts), all the posts shall be earmarked on the same pattern as in the model post-based rosters. Initial recruitment against these posts shall be by the category for which the post is earmarked. Replacement of incumbents of posts shall be by rotation as shown horizontally against the cadre strength as applicable. While operating the relevant roster, care will have to be taken to ensure that on no occasion the percentage of reserved category candidates exceed 50%. If such a situation occurs at any time, the relevant reserved point occurring as a result of rotation will be skipped. POST-BASED ROSTERS APPENDIX TO ANNEXURE-III Model Roster for promotion for cadre strength up to 13 posts REPLACEMENT NO.
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Cadre Initial Stren- Recruit- 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th gth ment
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1. UR UR UR UR UR UR SC UR UR UR UR UR UR ST
2. UR UR UR UR UR SC UR UR UR UR UR UR ST
3. UR UR UR UR SC UR UR UR UR UR UR ST
4. UR UR UR SC UR UR UR UR UR UR ST
5. UR UR SC UR UR UR UR UR UR ST
6. UR SC UR UR UR UR UR UR ST
7. SC UR UR UR UR UR UR ST
8. UR UR UR UR UR UR ST
9. UR UR UR UR UR ST
10. UR UR UR UR ST
11. UR UR UR ST
12. UR UR ST
13. UR ST
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NOTE:
1. For cadres of 2 to 13 posts, the roster is to be read from entry 1 under column Cadre strength till the last post and then horizontally till the last entry in the horizontal row, i.e., like L.
2. All the posts of a cadre are to be earmarked for the categories shown under column Initial Appointment. While initial filling up will be by the earmarked category, the replacement against any of the post in the cadre shall be by rotation as shown horizontally against the last post of the cadre.
3. The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% representation of reserved category.
14. The contention of the respondents is that they have strictly followed para 12 and the model roster read with notes 1 & 2 of the said model roster and therefore they had to replace K. Prabhudas who belonged to SC category by a UR candidate, as the first replacement in a cadre of `7' shall be by a UR candidate as per the model roster which is to be operated in L shaped manner as suggested in the notes 1 and 2 of the model roster given as Appendix to Annexure III. On the other hand, learned counsel for the applicant contended that if the said manner is followed, it will be contrary to the principle laid down by the Supreme Court in R.K. Sabharwal's case for which implementation the very OM dated 2.7.97 is issued, and therefore if any instructions or notes are not in consonance with the purpose for which the instructions on the model roster are prepared, this Tribunal has every right to set aside such instructions which defeats the purpose for which the OM was issued and which are contrary to the principles laid down by the Hon'ble Apex Court. As the very object of issuing OM dated 2.7.97 is to strictly follow the principle laid down by the Hon'ble Apex Court in R.K. Sabharwal's case and J.C. Mallick's case, if any instructions given in the OM defeats that object such instructions are required to be set aside/ corrected so as to achieve the purpose for which the OM was issued. Therefore, in our considered view, this Tribunal has got power to set aside or alter the instructions or note in case this Tribunal is satisfied that application of such explanatory notes and model roster leads to violation of principles laid down by the Hon'ble Apex Court in respect of implementation of reservation policy of the Government of India. As the applicant is denied consideration for promotion relying on such instructions, he is entitled to challenge the same in this OA..
15. Nextly it has to be seen whether the application of explanatory note No. 12 of Annexure-I and note No.2 of Model Roster given as Appendix to Annexure-III leads to violation of principles laid down by the Hon'ble Apex Court with regard to the implementation of reservation policy. In this regard, it is useful to extract some of the observations made by the Constitution Bench of the Hon'ble Apex Court in R.K. Sabharwal and others Vs. State of Punjab and others. Para 4 of the judgment reads as follows:
4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation.
Further, the Hon'ble Apex Court explained the difference between the `posts' and `vacancies' in paragraph 6 of the judgment and it reads as follows:
6. The expressions `posts' and `vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word `post' means an appointment, job, office or employment. A position to which a person is appointed. `Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a `post' in existence to enable the `vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of `vacancy' has no relevance in operating the percentage of reservation. Further, at the end of para 5, the Hon'ble Apex Court observed that as and when there is a vacancy in a particular post, the same has to be filled from amongst the category to which the post belonged in the roster. The Hon'ble Supreme Court cited an example stating that the scheduled caste persons holding the post at roster points 1, 7, 15 retire, then these slots are to be filled from amongst the persons belonged to the schedule castes. But the learned counsel for the respondents submitted that the above quoted observations of the Hon'ble Apex Court are applicable only in cases where the cadre strength is 14 and above. We are unable to accept the said contention of the learned counsel for the reasons that the Govt. of India in OM dated 2.7.97 nowhere stated that the principles laid down by the Hon'ble Apex Court are followed only in respect of reservations relating to the cadres consisting of 14 and above and that those principles cannot be given effect to in respect of cadres whose cadre strength is 13 and below. In the absence of such specific mention in the OM and in view of the positive mention in para 3 of the OM that the OM is issued with a view to bring the policy of reservation in line with the law laid down by the Hon'ble Supreme Court such contention cannot be accepted. Though the Hon'ble Supreme Court in R.K. Sabharwal & others' case did not specifically deal with the cadre strength of less than 14, it cannot be said that the principle laid down by the Supreme Court that the reserved points fixed in respect of a particular cadre, shall not be filled by a general category candidate and shall be filled only by the members of that reserved category, is not applicable to a cadre strength of less than 14 even if reserved points are fixed in the roster of such cadre. The underlying spirit of the judgment of the Hon'ble Apex Court has to be kept in mind at the time of issuing instructions for implementation and also while preparing the model rosters. The law laid down by the Supreme Court is very clear that when a percentage of reservation is fixed in respect of a particular cadre and the roster is prepared indicating the reserved points, the posts shown at the reserved points are to be filled only from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved post. Here in the instant case, it is not disputed that the percentage of reservation for scheduled castes is fixed at 15% and a roster is also prepared indicating the point reserved for SC category in the cadre of 7 posts of Assistants. It is also not disputed that the recruitment to the post of Assistants is only by way of promotion from the cadre of UDC. It is also not disputed that one post is reserved for scheduled castes among those seven posts of Assistant. The said fixation is also in accordance with the percentage of reservation because 15% of the cadre of 7 works out to `1'. Therefore, one post is reserved fro SC candidate in the cadre of seven. It is also not disputed that one K. Prabhudas was initially adjusted against that reserved point slot as he belonged to SC category and the said post became vacant on 10.10.2004 on account of discharge of the said K. Prabhudas. It is also not disputed that by 10.10.2004 the applicant who belonged to SC category became eligible to be considered for promotion as Assistant as he completed 5 years in LDC cadre which is the minimum requirement for consideration for promotion and he was the only SC candidate eligible to be considered for promotion from UDC to Assistant at that time. It is also not disputed that after discharge of K. Prabhudas, there was no SC candidate in the cadre of `7' Assistants posts though there was one ST candidate out of the cadre strength of 7 Assistants, as is evident from the rejoinder which is not contradicted by the respondents. It is also not disputed that the said SC vacancy vacated by K. Prabhudas is filled up by an UR candidate following the model roster given as Appendix to Annexure-III. Thus, on account of application of the said model roster, the respondents violated the fundamental principle laid down by the Hon'ble Apex Court that when a point is reserved for the member of a reserved category in the roster, that shall not be filled up by a general candidate and it shall be filled up only by a candidate belonging to that reserved category.
16. The learned counsel for the respondents vehemently contended that principle of replacement by the same category candidate can be applied only after all the reserved categories are adjusted in the cadre as per their respective percentage of quota and that in a cadre of less than `13' both categories SC and ST cannot be adjusted as percentage of reservation for ST is only 7 =% and therefore a special procedure of rotation system is adopted to do justice to the reserved categories. He further contended that if the principle of replacement by the same category of candidates is applied in a cadre of `7' or upto a cadre of `13' there will be no scope for accommodation of any ST candidate and in such case lot of injustice will be done to schedule tribe category.
17. We have examined the said contentions and found no force in such contentions. We find that no injustice will be done to ST category if SC candidate who occupied SC reserved post is replaced by SC candidate only, in the cadre strength of `7' and above. On the other hand, if rotation system is applied and SC reserved post is also subjected to rotation on par with unreserved category posts in the cadre strength of `7' and above lot of injustice will be done to the scheduled caste. For example, even in the present case of Assistants whose cadre strength is `7', as per percentage of 15% for SC, one post shall be reserved for SC and therefore one reserved point is alloted and fixed as 7th slot. Initially SC candidate is rightly adjusted against that reserve point. On 10.10.2004 that SC candidate is discharged. Since then no representation for scheduled caste though as per the reservation policy of the Govt. 15% shall be reserved for SC and out of seven posts 15% works out to one. If note No.2 of the model roster is applied in the present form, there is no scope for representation of SC in the cadre in the near future as five more replacements shall be from UR and sixth replacement shall be by ST and further only after six more replacements SC candidate gets reservation benefit. In other words reservation facility will be available for SC candidate only after 13 retirements and till then there will be no representation of reserved SC candidate in the cadre of seven `Assistant' posts. Similar will be the fate of SC candidates in the cadre strength of 8, 9, 10, 11, 12 & 13 also.
18. Take another example of a cadre consisting of 13. Only one reserve point is allotted to SC, i.e. at 7th slot as per the model roster and all the other 12 are slotted as unreserved under the column `initial recruitment' in the table. As per model roster note No.2 of Appendix given in Annexure III the first replacement shall be by ST and thereafter six replacements by UR If SC candidate occupying SC reserved post at slot No.7 in a cadre of 13 retires first, he shall be replaced by ST and thereafter six replacements also by UR and there will be no representation from SC reserved category in a cadre strength of even `13' though SC reserved quota is 15%. Thus, it will be against the reservation policy of the Government and thus lot of injustice will be done to SC category if the principle laid down by the Hon'ble Apex Court is violated. On the other hand, no prejudice will be caused either to unreserved category or to ST category if the principle enunciated by the Supreme Court is followed and the reserved post earmarked for SC category even in a cadre of less than `13' is not subjected to rotation and is replaced by the SC candidate only. Because in a cadre of 7 and above upto 13 there will be six and 12 UR category respectively. UR category percentage as per Govt. policy is only 77 =% which works out to less than 5.5 in a cadre of `7' and 10.1 in a cadre of `13'. Therefore, it is only UR category which is required to be subjected to rotation to accommodate ST as UR category occupied excess percentage of posts.
19. Coming to the contention of alleged injustice to the other reserved community i.e. ST (reservation is not available for OBCs in promotions), even if SC vacancy is snot subjected to rotation the UR category vacancies will be replaced in the manner indicated in the roster and 7th replacement in the cadre of `7' will be ST. If it is taken notionally ST will get one out of 14 and it is in accordance with 7 = % quota prescribed for ST as per reservation policy of the Government. Therefore, the question of injustice to ST does not arise.
20. Rotation system is required to be adopted in a cadre upto 13 posts, only to provide reservation to the reserved categories as per their respective percentage prescribed by the Govt. of India and not to benefit the unreserved categories. As the percentage of reservation for ST is only 7 = % it is not possible to allot one reserve point in a roster of less than 14 and therefore rotation system is required to be adopted. When such is the object of adopting rotation system, there is no point in subjecting the reserve category point i.e. SC category reserve point also to rotation and thereby depriving due percentage reserved for that category. Only the unreserved points are required to be subjected to rotation at the time of replacements and the sole reserve point fixed in the roster of the cadre of less than 13 shall not be subjected to rotation though it is to be counted for the purpose of replacement numbers given in the model roster. Otherwise there may arise situations where there will be no SC reserved category representation even in a cadre of 13 for a long time if the unreserved category candidates occupying all 13 posts are young and not likely to retire soon. Such situations give undue advantage to unreserved category and disadvantage to the SC reserved category for whose benefit rotation system is introduced to maintain the percentage of reservation.
21. But note No.2 given under model roster in the appendix to Annexure III reads that the replacement against any post in the cadre shall be by rotation as shown horizontally against the last post of the cadre. Similarly in para 12 of explanatory notes it is stated that initial recruitment against the posts shall be by category for which the post is earmarked and replacement of incumbents of posts shall be by rotation as shown horizontally against the cadre strength as applicable. As per these instructions, even the SC category post reserved in the roster shall also be subjected to replacement by rotation. The draftsman of the OM dated 2.7.1997 appears to have not visualised the prejudice that may be caused to scheduled caste category in the event of replacement of sole SC reserve point by unreserved category in the cadre strength of `7' and above. For the cadre strength of below `7' there may not be any problem and the model roster can be applied as it is, as there are no reserve points and all points are unreserved. But, in the cadre of `7' and above where reserve point is fixed, such reserve post shall not be subjected to rotation. The authorities have correctly formulated the table in model roster in Appendix to Annexure III keeping the interests of SC category and maintained the 15% reservation for SC category. If we look at the table, in a cadre of two posts, 5th replacement shall be by SC; in a cadre of three posts 4th replacement shall be by SC; in a cadre of four posts 3rd replacement shall be by SC; and in a cadre of five posts 2nd replacement shall be by SC and in a cadre of six posts 1st replacement shall be by SC category and thereby maintained 15% quota for SC category by giving one out of seven. For the cadre strength of `8' and above upto `13' we do not find `SC' in the horizontal line prescribed for replacements for obvious reason that the SC reserved category reached its due percentage of quota in the cadre of less than 13 by getting a point reserved for SC at 7th slot. The Hon'ble Apex Court in Sabharwal's case held that the vacancy based roster can operate only till such time as the representation of candidates belonging to reserved categories in a cadre reaches the prescribed percentage of reservation. This principle is extracted in the very first paragraph of the OM dated 2.7.1997 in bold black letters. This principle is strictly followed while preparing the table in Appendix to Annexure-III and therefore `SC' category is found in the horizontal line of the table only upto cadre of `6' and after SC category got a fixed point after reaching the cadre strength of `7', `SC' disappeared from horizontal line, and replacement by SC in the cadre strength of `7' and above upto 13 is excluded. Thus the table is rightly prepared maintaining the percentage of reservation of reserved categories. But, while drafting the explanatory notes given under the table for operation of the table the draftsman committed a mistake by mentioning in note No.2 that the replacement against `any of the post' in the cadre shall be by rotation as shown horizontally against the last post of the cadre. On account of this explanatory note, even the reserved point fixed for SC in the cadre of `7' and above as per its due percentage, is also being subjected to rotation and thereby causing prejudice to the SC category. There is no need for SC category, in a cadre strength of `7' and above, to sacrifice its post to accommodate the other reserved category ST who could not get a point fixed in a cadre of less than 14 on account of their quota of only 7 =%. In cadres of less than `7', as SC also is not entitled to get a fixed point reserved for that category due to their quota of 15% SC has to wait for its turn as per horizontal line shown against the last post of the cadres of less than seven and hence he is also to be subjected to rotation. For example, if any SC who secured place in a cadre of less than `7' either under UR category or by way of replacement, such SC candidate shall also be subjected to rotation as per `L' shaped table. Similarly, ST category candidate who secures place in the cadre of `13' and less by way of replacement he shall also be subjected to rotation as his community is not entitled for a fixed place in such cadres on account of their 7 =% quota. But in the case of SC category in the cadres consisting of 7 posts and above, if an SC candidate is initially adjusted against such fixed reserve point, he shall be replaced only by SC candidate and not by UR candidate. But, if SC community candidate is adjusted or replaced on his own merit under UR category, such posts shall be subjected to replacement by rotation as shown in the horizontal lines of the table.
22. Further, explanatory note No.10 given under Annexure I of the OM dated 2.7.97 says that the points at which reservation for different categories applies are fixed as per the roster and vacancies caused by retirement etc. of persons occupying those points shall be filled by appointment of persons of the respective categories. Similarly in explanatory notes No.8 of Annexure-I to the OM it is stated that `squeezing' has been done for the reserved categories to reach the number of posts to be reserved for them without violating the 50% limit laid down by the Courts and the cadre controlling authorities should `squeeze' the last points of the roster. In the instant case the reserve SC point is fixed in the roster at the last point in the cadre of `7' Assistant posts. So, it has to squeezed, and to be replaced by only SC candidate whenever the person occupying that reserve point retires or vacates in any other manner. But in the instant case the respondents have violated the explanatory notes Nos. 8 and 10 also relying on explanatory notes No.12 and note No.2 of the model roster in Appendix to Annexure III which are contrary to the principles laid down by the Hon'ble Apex Court which the Govt. of India decided to follow by bringing the policy of reservation in tune with the said law laid down by the Hon'ble Apex Court. In our considered view explanatory notes No.12 which is the basis for Note No.2 of the model roster referred to supra is contrary to not only the principles laid down by the Hon'ble Apx Court but also the other explanatory notes given under Annexure-I and contrary to the very object of issuing the OM dated 2.7.1997. Hence the said explanatory Notes No.12 in Annexure-I and the note No.2 in the model roster given under Appendix to the Annexure-III are liable to the set aside to the extent they contravene the principles laid down by the Hon'ble Apex Court and those instructions shall be read down to bring them in conformity with the judgment of the Hon'ble Supreme Court which the Govt. of India wanted to follow in implementation of the reservation policy. Explanatory Notes 12 of Annexure I enclosed to the OM dated 2.7.97 shall be read as follows:
12. In the case of small cadres (upto 13 posts), all the posts shall be earmarked on the same pattern as in the model post based rosters. Initial recruitment against these posts shall be by the category for which the post is earmarked. Replacements of incumbents of ONLY `UR' posts shall be by rotation as shown horizontally against the cadre strength as applicable. While operating the relevant roster, care will have to be taken to ensure that on no occasion the percentage of reserved category candidates exceed 50%. If such a situation occurs at any time, the relevant reserved point occuring as a result of rotation will be skipped. Similarly Note No.2 of Model roster given in Appendix to Annexure I shall be read as follows:
2. All the posts of a cadre are to be earmarked for the categories shown under column initial appointment, while initial filling up will be by the earmarked category, the replacement against any `UR' post shall be by rotation as shown horizontally against the last post of the cadre.
Thus these two points are found in favour of the applicant.
23. Point No. (iii):
In view of the findings on points (i) and (ii) the SC vacancy caused due to discharge of K. Prabhudas ought not to have been replaced by UR candidate, the 4th respondent herein and it ought to have been replaced by an eligible SC candidate. But though according to the applicant, he became eligible to be considered for promotion by the date of discharge of K. Prabhudas he has not been considered. If th applicant otherwise became eligible to be considered for promotion and if he was the only SC candidate available, he ought to have been considered for promotion to fill up the SC reserved vacancy. As it was not done, the respondents are to be directed to conduct Review DPC for filling up SC category post vacated by Shri K. Prabhudas and the name of the applicant shall be considered if he is otherwise eligible to be considered for promotion to the post of Assistant. Accordingly, this point is also found in favour of the applicant.
24. Point No. (iv):
As the applicant pleaded that he was promoted as UDC on 8.1.99, he completed 5 years which is the minimum required qualification to be considered for promotion to the cadre of Assistant, the applicant is required to the considered for filling up SC vacancy vacated by K. Prabhudas as prayed for in the application. Thus, this point is also found in favour of the applicant.
25. In the result, the OA is allowed setting aside the explanatory note 12 in Annexure-I and note No. 2 of the model roster given in Appendix to Annexure-III to the extent that they are contrary to the principles laid down by the Apex Court, by reading down those instructions in the manner prescribed in para 21 of these orders and also directing the respondents to conduct Review DPC for filling up the SC reserved post vacated by K. Prabhudas considering all eligible SC candidates only including the applicant. The process shall be completed within three months. There shall be no order as to costs.
( R. Santhanam) (P. Lakshmana Reddy)
Member (A) Vice-Chairman
Dated: 21st January, 2009