Gujarat High Court
V.Venkatraman & 6 vs Union Of India Thr'Its General Manager & ... on 8 November, 2016
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/20936/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20936 of 2006
With
SPECIAL CIVIL APPLICATION NO. 20938 of 2006
TO
SPECIAL CIVIL APPLICATION NO. 20943 of 2006
With
SPECIAL CIVIL APPLICATION NO. 4068 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
======================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made thereunder ?
====================================== V.VENKATRAMAN & 6....Petitioners Versus UNION OF INDIA THR'ITS GENERAL MANAGER & 12....Respondents ====================================== Appearance:
MR MS RAO, ADVOCATE for the Petitioner Nos. 1 7 APPEARANCE DELETED for the Respondent No. 6 DELETED for the Respondent Nos. 8, 12MRS VASAVDATTA BHATT, ADVOCATE for the Respondent No. 2 NOTICE SERVED for the Respondent No. 6 RULE SERVED for the Respondent Nos. 1, 3 SUNITA S CHATURVEDI, ADVOCATE for the Respondent Nos. 4 5, 7, 9 11, 13 ====================================== Page 1 of 62 HC-NIC Page 1 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE A.G.URAIZEE Date : 08/11/2016 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. As all these matters pertaining to the similar question, and parties are same in respect of the orders in question, they are heard together and are being decided by this common CAV judgment.
2. The petitioner has approached this Court by way of these petitions with prayers setout there under. But, as the prayers are same in all these matters, except the prayers in S.C.A. No.4068 of 2007, for the sake of convenience and brevity, the prayers of S.C.A. No.20936 of 2006 and S.C.A. No.4068 of 2007 are reproduced as under : Prayers of S.C.A. No.20936 of 2006 "A. call for the records & proceedings in the Original Application No.268 of 2006 and Review No.8 of 2006 on the file of the Learned Central Administrative Tribunal, Ahmedabad Bench, and on a perusal of the documents on record thereof, be further graciously pleased to quash and set aside the impugned Final Order dated 2.3.2006 in OA No.268 of 2005 (at Annexure - A hereto) and also the Final Common Order dt.6.9.2006 in the petitioners' Review Application No.8 of 2006 (at AnnexureB hereto) both passed by the Learned Central Administrative Tribunal, Ahmedabad Page 2 of 62 HC-NIC Page 2 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Bench.
B. be further pleased to reject the Original Application No.268 of 2005 holding the same to be devoid of any merit or substance.
C. pending the admission hearing and final disposal of this writ petition, your Lordships be further graciously pleased to direct the respondents No.1 to 3, herein to restrain themselves, their agents, officers, representatives from proceeding any further in furtherance of the final order dt.2.3.2006 passed by the Learned Tribunal in OA No.286 of 2005 and the subsequent common order dt.6.9.2005 passed by the Learned Tribunal in R.A. No.8 of 2006;
D. grant ex parte ad interim relief in terms of the clause C hereinabove;
E. grant such other and further reliefs as may be deemed fit and proper in the facts and circumstances of the case."
Prayers of S.C.A. No.4068 of 2007 "(A) Your Lordship may be pleased to admit and allow this Special Civil Application.
(B) Your Lordship may be pleased to issue an appropriate writ, order or direction to quash and Page 3 of 62 HC-NIC Page 3 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT set aside the order passed in Original Application No.286 of 2005 and Common Order passed in Review Application No.8 of 2006 and Review Application No.11 of 2006.
(C) Pending admission, hearing and final disposal of the present petition, the implementation, execution and operation of the order passed in Original Application No.286 of 2005 and Common Order in Review Application No.8 of 2006 and Review Application No.11 of 2006 may kindly be stayed.
(D) Any other and further relief(s) as this Hon'ble Court may deem just and proper in the facts and circumstances be granted."
Thus, what is essentially under challenge is the orders passed by the Central Administrative Tribunal, Ahmedabad Bench, wherein the Tribunal quashed the impugned notification and rejected the Review Application of the petitioners by confirming the quashing of the impugned notification.
3. The facts in brief as could be culledout from the memo of the petition, and as the same are similar, they are deserve to be setout as under :
4. That all the petitioners and respondent nos.4 to 11 are railway servants serving in the Western Railway at its Vadodara Division. In the August 2004, the petitioners and the respondent nos.4 to 13 herein were serving as Senior Goods Loco Pilots in the Mechanical and Page 4 of 62 HC-NIC Page 4 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Electrical Department of the Baroda Yard of the Western Railway. The respondent no.2, at that time cameout with a Notification dated 4 th August 2004 to hold a selection to draw a panel of suitable employees for promotion to the 24 vacant posts of Passenger Driver on the pay scale of Rs.55009000/ in the Mechanical Department, Baroda Division, Western Railway. It is stated in the Notification that out of total 24 vacant posts, 10 posts have been reserved for the Scheduled Caste Category and thus while drawing the list of candidates eligible to participate in the selection process, the names of the present petitioners have also been included in the ListA. In that list the present petitioners and respondent nos.4 to 13 were declared to be eligible to appear in the written test. Pursuant to the said Notification, the written test was held on 26th October 2004 and present petitioners as well as respondent nos.4 to 13 were appeared in the written test. The respondent nos.4 to 13 were belong to the General Category and they did not have any grievance whatsoever with regard to the earmarking of 10 vacancies for SC category.
5. However in the year 2004, after appearing in the written test, the respondent nos.4 to 13 had grievances with regard to the written test. Hence, they takenup the matter with the railway authorities through Employees' Union, Vadodara by letter dated 1st November 2004. Even this point of time, they did not have any grievance whatsoever with regard to the earmarking of 10 vacancies for SC category out of 24 vacancies. The competent authority, considered the grievance of the respondent nos.4 to 13 in a meeting called PNM held on 30th December 2004 and accordingly the Western Railway Employees Union came to be advised in writing. After having realized that they cannot succeed in the matter of stalling the selection process, they raised the point that in the notification dated 4th September 2004 Page 5 of 62 HC-NIC Page 5 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT for 24 posts, 10 posts were for SC/ST. The main grievance of the respondent nos.4 to 13 in the said OA was that in the cadre of Passenger Drivers there is already representation of SC/ST and that the said reservation of 10 vacancies against the total 24 vacant posts cannot be provided, on the basis that against a sanctioned strength of 89 posts, 74 persons are in position and that 15 posts are vacant. Thereafter, in the year 2005, though participated in the selection process in the year 2004, the respondent nos.4 to 13 had approached the Central Administrative Tribunal, Ahmedabad with OA No.286 of 2005 praying for the quashing and setting aside the Notification dated 4th August 2005. The tribunal was pleased to grant ad interim ex parte order to the effect that the railway administration shall restrain itself from declaring the result of the test till filing of the reply and the matter was adjourned. The Railway administration filed its written statement to the said O.A. and also moved M.A. No.329 of 2005 praying for vacating the interim relief. The Railway administration had also filed M.A. no.330 of 2005 praying for direction to the original applicants to place on record the original documents of their annexures, as according to it such documents were never issued by the railway administration. The railway administration had also filed further M.A. No.454 of 2005 praying for vacating of interim relief. After hearing of all the applications, the Tribunal had disposed of all the applications. While disposing of the railway administration's M.A. No.454 of 2005, the Tribunal expressed its prima facie opinion that the question of there being an excess of quota in SC category is not well founded and not supported by any cogent documentary evidence, was pleased to modify its earlier interim order and permitted the railways to proceed further with the selection subject to the outcome of the O.A. Further the tribunal was pleased to direct the respondent nos.4 to 13 herein to produce on record of O.A. The original document of their AnnexureA/2. But, till the date of final disposal of Page 6 of 62 HC-NIC Page 6 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT the main O.A., the respondent nos.4 to 13 did not bother to place on record the documents.
6. The railway administration declared the result of the written test and had published a provisional select panel for the post of Passenger Driver containing in all 21 successful candidates in the order of seniority vide Memorandum dated 11th August 2005, wherein the present petitioners find their place. The respondent nos.5, 6, 7, 8 and 10 had also found their place in the provisional select panel while rest of the respondent i.e. nos.4, 9, 11, 12 and 13 herein did not succeed in the said examination. The Railway administration vide its subsequent memorandum dated 16th August 2006 had issued promotion orders promoting all the aforesaid 21 persons. The said memorandum was not made available to the petitioners. The petitioners were not at all aware of the fact that in 2006 an application being O.A. No.286 of 2005 is pending before the Ahmedabad Bench of the Central Administrative Tribunal challenging the very notification dated 4th August 2004, which is the root of the selection process culminating into the promotion of the petitioners against the reserved category. That out of ten respondents, five respondents, who were promoted along with the petitioners by the memorandum dated 16th August 2006 and have assumed the charge of the promotional post ought to have moved the tribunal for leave to withdraw the O.A. So far as it relates to them. Nor the rest of the 10 original applicants have moved the tribunal with appropriate application in O.A. Praying for leave to amend the pending O.A. so as not only to challenge the aforesaid two memorandum dated 11th August 2006 and 16th August 2006 but also to implead the petitioners herein who have been promoted against the reserved category. With the issuance of the aforesaid two memorandum, the O.A. filed by the respondent nos.4 to 13 had become infructuous. Even the railway administration did not file Page 7 of 62 HC-NIC Page 7 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT any additional affidavit placing on record the aforesaid two memorandum and raising a preliminary plea that in the absence of impleadment of the petitioners in the main O.A., the said O.A. is required to be dismissed on the ground of nonjoinder of necessary and proper parties.
7. On 2nd March 2006, the Tribunal was pleased to allow the O.A. No.286 of 2005 and quashed and set aside the said notification dated 4th August 2004. The petitioners were not aware of either the pendency of the said O.A. No.286 of 2005 nor the passing of the final order dated 2nd March 2006 by the tribunal. The petitioners came to know about the representation dated 13th March 2006 addressed by one of the respondent nos.4 to 13 to the railway authorities calling upon them to implement the directions of the aforesaid order. The petitioners were not given opportunity of being heard. Thereafter, they filed a review application praying for recall of the order dated 2nd March 2006 passed in O.A. No.286 of 2005, and restoration of said O.A. etc. They also approached the C.A.T., Ahmedabad Bench with joint review application in the year 2006 and has also filed M.A. praying for appropriate directions to the railway administration to restrain themselves from proceeding any further in final order dated 2nd March 2006. The railway administration on being aggrieved by the aforesaid final order dated 2nd March 2006 filed Review Application being RA No.11 of 2006 for review and recalling of the said order. After hearing learned advocates for the parties, the tribunal vide its common order dismissed the review applications by holding that there is no merit in the said review applications.
8. Being aggrieved and dissatisfied with the aforesaid orders of the Central Administrative Tribunal, Ahmedabad the petitioners have Page 8 of 62 HC-NIC Page 8 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT approached this Court challenging the legality and validity of the aforesaid orders.
9. Mr.Rao, learned advocate for the petitioners, submitted that the orders passed by the tribunal suffers from various errors of law and facts which are apparent on the face of the record and the same be quashed and set aside. The tribunal ought to have enquired and appreciated the subsequent events, which took place. The memorandum dated 11th August 2005 and 16th August 2005 issued by the railway administration were not brought on record of the main O.A. The tribunal failed to appreciate that even though the respondent nos.4 to 13 directed to produce on record the original of the AnnexureA/2, they did not produce the same till the final hearing of the O.A. In the written statement filed by the respondent nos.4 to 13 also, it is admitted that the originals of the said annexures are not available with them.
10. He further submitted that the learned tribunal committed a gross error of law in not appreciating the fact that the present petitioners were necessary and proper parties in the O.A. No.286 of 2005. As the petitioners were not made party in the said O.A., an important point of law could not be brought to the notice of the learned tribunal that any person having participated in the selection process cannot challenge the same on any ground whatsoever including the issue pertaining to reservation.
11. Learned advocate for the petitioners contended that the learned tribunal failed to appreciate that the earmarking of 10 posts of Passenger Drivers out of the total vacant posts of 24 in the said cadre for the members of the Scheduled Caste Category is legal, valid and proper and no statutory violation whatsoever has occurred in doing so. He Page 9 of 62 HC-NIC Page 9 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT further submitted that it is not true that as per AnnexureA/2 to the O.A., against the sanctioned strength of 89 posts, 74 persons are in position and that 15 posts are vacant. In support of this submission, the present petitioners had placed on record a documentary evidence to show conclusively that after restructuring w.e.f. 1st November 2003 the total cadre strength of Passenger Drivers is 65 and not 89 as claimed by the respondents. The railway administration ought to have placed on record the document in support of its contention that the cadre strength of Passenger Driver is 65.
12. Learned advocate for the petitioners contended that the learned tribunal committed an error of law and fact in not appreciating that in the past the railway administration while filling up the post of Passenger Drivers through selection against promotion quota has never filled up the slot meant for the scheduled caste category on the roster point. He further contended that the learned tribunal also failed to appreciate that the instructions contained in the Railway Board's Circular letter dated 20th June 2003, which demonstrates that in the past all these SC candidates having been found to be suitable on their own merit for their promotion to the post of Passenger Driver came to be granted promotion against the vacancies falling in the general category. Learned tribunal also erred in law in placing reliance on certain rulings of the Hon'ble Supreme Court which in the most humble submission of the petitioners herein, do not apply to the facts of the present case.
13. Learned advocate for the petitioners in S.C.A. No.4068 of 2007, submitted that the said order is passed without application of mind on the facts and circumstances of the case because said order does not take into consideration the equity that have been created in favour of promoted Passenger Loco Drivers though the same was subject to Page 10 of 62 HC-NIC Page 10 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT outcome of the original application, because the promotion once granted and thereafter to be taken back would tantamount to derogation and punitive in nature in respect of those passenger loco drivers for no fault of theirs. He further submitted that this order does not considers the fact that the reservation is post based and not on the percentage basis and the fact that the candidates belonging to SC/ST category have been promoted on their general merits and not against the reserved points keeping in view on the law laid down by the Hon'ble Supreme Court.
14. Learned advocate for the petitioners further contended that the tribunal has failed to appreciate the fact that under the notification dated 2nd September 2003, the railway administration has filled up 20 vacant posts of passenger drivers entirely from the general category without earmarking any posts for the SC category. At that point of time, the respondents had never raised any objection in respect of such filling up of the posts, thus, the respondents herein could not have raised any objection in respect of reservation made by the petitioners in a total cadre of 65 wherein it was clearly stated that the SC/ST candidate who have filled up vacancy earlier on the basis of their own merit and seniority and not on the basis of reservation. Therefore, the learned tribunal ought to have appreciated the fact that earmarking of 10 posts for the SC category against the total vacant posts of 24 in a cadre of 65 is perfectly legal and proper.
15. He further submitted that the learned tribunal has not appreciated the ratio of various case laws cited before it more particularly the case of Ajitsingh and R.K.Sabharwal and thus, the order passed by the learned tribunal is bad in eyes of law.
16. To support his contentions, Mr.Rao, learned advocate for Page 11 of 62 HC-NIC Page 11 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT the petitioners relied on the following decisions.
(1) In case of Om Prakash Shukla, Appellant V/s. Akhilesh Kumar Shukla and others reported in A.I.R. 1986 SC 1043.
(2) In case of Vijendra Kumar Verma V/s.
Public Service Commission, Uttarakhand and others, reported in (2011) 1 Supreme Court Cases 150. (3) In case of Madras Institute of Development Studies V/s. K. Sivasubramaniyan, reported in 2015SCC1454.
(4) Judgment of this Court passed in S.C.A. No.6173 of 2008 with allied matter on 13th January 2015, in case of Khimjibhai Jasabhai Makwana & 3 others V/s. Union of India & 6 others.
(5) In case of Madras Institute of Development Studies and another V/s. Dr.K.Sivasubramaniyan and others, Supreme Court judgment.
(6) In case of A.K.Gautam V/s. UOI & Ors.
Judgment of High Court of New Delhi.
17. As against this, the respondents have filed their affidavitin Page 12 of 62 HC-NIC Page 12 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT reply and submitted as under :
18. Learned advocate for the respondents, submitted that though the trade union Western Railway Employees' Union ('WREU' for short) has raised the issue that the question paper was not balanced, but originally, the question paper was balanced. It is not fully correct that the petitioner was aware about the pendency of O.A. No.286 of 2005. It is submitted that the railway has clearly mentioned that the result of examination (panel) notified on 11th August 2005 as well as promotion order were issued.
19. Learned advocate for the respondents contended that it is correct that the trade union WREU has raised the issue that the question paper was not balanced but it is not correct that the above said objection was raised by the respondent no.4 to 11, because except respondent nos.4 and 8, all were working in A.C. Traction. Moreover, respondent no.8 was also found suitable and placed on the panel.
20. Learned advocate for the respondents further contended that there is no such representation made and or letter was received by the respondents. Learned advocate further submitted that the applicants were aware of the pendency of O.A. No.286 of 2005. The railway has clearly mentioned about this in the result of examination (panel) notified on 11th August 2005 as well as in the promotion orders. Learned advocate also submitted that memorandum of 11th August 2005 and 16th August 2005 were not brought on record of the main O.A. No.286 of 2005 as these orders were issued as per the interim direction of the Hon'ble Court and the same facts were brought in notice in the Hon'ble Court during the course of arguments and also in written in review application.
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21. Learned advocate for the respondents submitted that railway has regularly pointed out before the Hon'ble Court during the course of argument as well as in review application by making annexures that the cadre of Passenger Driver is 65 and not 89.
22. Learned advocate for the respondents by way of further affidavit submitted that reservation in the instant case is post based and the SC/ST candidates are considered only against reserved post. The SC/ST candidates, who fulfill the eligibility conditions as general candidates and are coming within the zone of consideration are considered against nonreserved posts even if there are no reserved posts earmarked for them. It is submitted that whenever any post falls vacant due to retirement/ higher grade promotion, the same will be filled accordingly and in case if the post is of unreserved category and any SC/ST candidate is falling within the zone of consideration he will have to be considered even though the post is of unreserved category.
23. It is submitted on behalf of the respondents that the seniority list as produced by the petitioners do not bear any particular date or year of issue. The said seniority list is prior to restructuring of cadre in 2003 and therefore it was an attempt made by the original applicant to mislead the learned tribunal. A candidate even if is placed in place of general candidate, he continues to remain a reserved category candidate and accordingly he is shown as SC/ST candidate. It is a case that such a candidate has been adjusted against an unreserved post and not against a reserved post and such candidates are promoted on their own merit and not owing to reservation or relaxation of qualification will be adjusted against unreserved post only. It is further submitted that if any unreserved vacancy arises in a cadre and there is availability of SC/ST candidate within the zone of consideration in the Page 14 of 62 HC-NIC Page 14 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT feeder grade then such a candidate will be considered for promotion along with other candidates as if he belongs to general category. Learned advocate for the respondents produced the list at AnnexureM showing the candidates, who were though belonging to reserved category have been promoted and adjusted against unreserved category. It is submitted that the employees appearing at Sr. No.01 to 08 (in the list at AnnexureM) and having Seniority Nos.81, 83, 86, 89, 90, 96, 97 and 98 are belonging to reserved category but have got selected against unreserved category whereas the employees appearing at Sr. No.9 to 13 above and having Seniority No.103 to 107 are belonging to reserved category and have got selected against reserved category. It is also submitted that although there was no requirement of SC community as per Annexure W, there are reserved employees who have qualified on general merit & hence considered against unreserved category. As per Annexure W, requirement of 6 reserved employees can be seen against which 5 reserved employees have qualified and due to this 8 reserved employees who have come against unreserved category, 5 more reserved employees have been empanelled against reserved point as per extent rule. It is submitted that due to the aforesaid position though prima facie it appears that there is availability of SC candidates as per seniority list still there were no SC candidates available who could be adjusted against reserved post and those available against general merit cannot be adjusted or computed against reserved post.
24. In support of the contentions, learned advocate for the respondents relied on the following decisions.
(1) In case of K. Manorama V/s. Union of
India, reported in (2010) 10 SCC 323.
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C/SCA/20936/2006 CAV JUDGMENT
(2) Judgment of Supreme Court in case of U. P.
Power Corporation Ltd., V/s. Rajesh Kumar & Ors.,
25. This Court has heard learned counsel for the parties and perused the documents on record. Before adverting to the same, it would be most appropriate for this Court to setout hereinbelow the legal aspects touching upon the point of controversy and thereafter examine the controversy in light thereof.
26. The judgments cited at the bar by both the sides extensively deal with the aspects of reservation in favour of the members of the S.C. and S.T. candidates, the benefit of reservation to the members of S.C. and S.T. in the promotion and the aspect of the seniority in the promotional cadre, as well as, the counting of the reserve category meritorious candidates against the post of open category.
27. The relevant extracts from the decision of the Supreme Court, which contains extensive excerpt of the earlier judgment of the Supreme Court deserve to be reproduced hereinbelow for succinctly reproducing the provision of law and advertence thereto. In case of U.P. Power Corporation V/s. Rajeshkumar and others decided on 27th April 2012 in the matter arising from the High Court of Allahabad in which two different benches of the said Court has ruled differently, which was subject matter of examination by the Supreme Court in respect of the rules as made applicable by the State of U.P. in respect of the promotion and the benefit of reservation and seniority to the candidates and members of S.C. and S.T. and other communities.
16. Prior to the advertence in aforesaid regard, it Page 16 of 62 HC-NIC Page 16 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT is necessary to have a certain survey pertaining to reservation in promotional matters. The question of reservation and the associated promotion with it has been a matter of debate in various decisions of this Court. After independence, there were various areas in respect of which decisions were pronounced. Eventually, in the case of Indra Sawhney and another v. Union of India and others (supra) the nineJudge Bench, while dealing with the question whether clause (4) of Article 16 of the Constitution provides for reservation only in the matter of initial appointment, direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well, recorded the submissions of the petitioners in paragraph 819 which reads as follows: "The petitioners' submission is that the reservation of appointments or posts contemplated by clause (4) is only at the stage of entry into State service, i.e., direct recruitment. It is submitted that providing for reservation thereafter in the matter of promotion amounts to a double reservation and if such a provision is made at each successive stage of promotion it would be a case of reservation being provided that many times."
It is also submitted that by providing reservation in the matter of promotion, the member of a reserved category is enabled to leapfrog over his compatriots, which is bound to generate acute heartburning and may well lead to inefficiency in administration. The members of the open competition category would come to think that whatever be their record and performance, the members of reserved categories would steal a march over them, irrespective of their performance and competence. Examples are give how two persons (A) and (B), one belonging to O.C. Category and the other belonging to reserved category, having been appointed at the same time, the member of the reserved category gets promoted earlier and how even in the promoted category he jumps over the members of the O.C. Category already there and gains a further promotion and so on. This would generate, it is Page 17 of 62 HC-NIC Page 17 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT submitted, a feeling of disheartening which kills the spirit of competition and develops a sense of disinterestedness among the members of O.C. Category. It is pointed out that once persons coming from different sources join a category or class, they must be treated alike thereafter in all matters including promotions and that no distinction is permissible on the basis of their "birthmark". It is also pointed out that even the Constituent Assembly debates on draft Article 10(3) do not indicate in any manner that it was supported to extend to promotions as well. It is further submitted that if Article 16(4) is construed as warranting reservation even in the matter of promotion it would be contrary to the mandate of Article 335 viz., maintenance of efficiency in administration. It is submitted that such a provision would amount to putting a premium upon inefficiency. The members of the reserved category would not work hard since they do not have to compete with all their colleagues but only within the reserved category and further because they are assured of promotion whether they work hard and efficiently or not. Such a course would also militate against the goal of excellence referred to in clause (j) of Article 51A (Fundamental Duties)." Thereafter, the Bench referred to the decisions in General Manager, S. Rly. v. Rangachari5, State of Punjab v. Hira Lal6, Akhil Bharatiya Soshit Karamchari Sangh v. Union of India7 and Comptroller and Auditor General v. K.S. Jagannathan8 and did not agree with the view stated in Rangachari (supra), despite noting the fact that Rangachari has been a law for more than thirty years and that attempt to reopen the issue was repelled in Akhil Bharatiya Soshit Karamchari Sangh (supra). Thereafter, their Lordships addressed to the concept of promotion and, eventuall,y after adverting to certain legal principles, stated thus: "831. We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in State of Kerala v. N.M. Page 18 of 62 HC-NIC Page 18 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Thomas [(1976) 2 SCC 310] and the concessions namely carrying forward of vacancies and provisions for in service coaching/training in Karamchari Sangh are instances of such concessions and relaxations.
However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, Scs and Sts -
consistent with the efficiency of administration and the nature of duties attaching to the office concerned
- in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove." In paragraph 859, while summarising the said aspect, it has been ruled thus: "859. We may summarise our answers to the various questions dealt with and answered hereinabove:
.......... .............. ...........
(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the Page 19 of 62 HC-NIC Page 19 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so (Ahmadi, J expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration."
17. After the said decision, another decision, namely, Union of India and others v. Virpal Singh Chauhan and others [9] came to the field. In the said case, the twoJudge Bench was concerned with the nature of rule and reservation in promotions obtaining in the railway service and the rule concerning the determination of seniority between general candidates and candidates belonging to reserved classes in the promotional category. The Bench referred to the decision in R.K. Sabharwal v.
State of Punjab [10], various paragraphs of the Indian Railways Establishment Manual and paragraphs 692 and 693 of the Indra Sawhney (supra) and opined that the roster would only ensure the prescribed percentage of reservation but would not affect the seniority. It has been stated that while the reserved candidates are entitled to accelerated promotion, they would not be entitled to consequential seniority.
18. Thereafter, in Ajit Singh Januja and others v. State of Punjab and others [11], the threeJudge Page 20 of 62 HC-NIC Page 20 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Bench posed the question in the following terms: "The controversy which has been raised in the present appeals is: whether, after the members of Scheduled Castes/Tribes or Backward Classes for whom specific percentage of posts have been reserved and roster has been provided having been promoted against those posts on the basis of "accelerated promotion" because of reservation of posts and applicability of the roster system, can claim promotion against general category posts in still higher grade on the basis of their seniority which itself is the result of accelerated promotion on the basis of reservation and roster?"
The Bench referred to the decisions in Virpal Singh Chauhan (supra), R.K. Sabharwal (supra) and Indra Sawhney (supra) and ultimately concurred with the view expressed in Virpal Singh Chauhan by stating as follows: "16. We respectfully concur with the view in Union of India v. Virpal Singh Chauhan, that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position I.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated "consequential seniority". If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/ Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine Page 21 of 62 HC-NIC Page 21 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT the merit of such Scheduled Caste/Tribe candidate visavis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of senioritycummerit or meritcum seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution."
19. In Jagdish Lal and others v. State of Haryana and others12, a threeJudge Bench opined that seniority granted to the Scheduled Caste and Scheduled Tribe candidates over a general candidate due to his accelerated promotion does not in all events get wiped out on promotion of general candidate. The Bench explained the decisions in Vir Pal Singh Chauhan (supra) and Ajit Singh Januja Page 22 of 62 HC-NIC Page 22 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT (supra).
20. In Ajit Singh and others (II) v. State of Punjab and others13, the Constitution Bench was concerned with the issue whether the decisions in Vir Pal Singh Chauhan (supra) and Ajit Singh Januja (supra) which were earlier decided to the effect that the seniority of general candidates is to be confirmed or whether the later deviation made in Jagdish Lal (supra) against the general candidates is to be accepted. The Constitution Bench referred to Articles 16(1), 16(4) and 16(4A) of the Constitution and discussed at length the concept of promotion based on equal opportunity and seniority and treated them to be facets of Fundamental Right under Article 16(1) of the Constitution. The Bench posed a question whether Articles 16(4) and 16(4A) guarantee any Fundamental Right to reservation. Regard being had to the nature of language employed in both the Articles, they were to be treated in the nature of enabling provisions. The Constitution Bench opined that Article 16(1) deals with the Fundamental Right and Articles 16(4) and 16(4A) are the enabling provisions. After so stating, they proceeded to analyse the ratio in Indra Sawhney (supra), Akhil Bharatiya Soshit Karamchari Sangh (supra) and certain other authorities in the field and, eventually, opined that it is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a court decides that in order only to remove hardship such rosterpoint promotees are not to face reversions, then it would, in our opinion be, necessary to hold - consistent with our interpretation of Articles 14 and 16(1) - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. While courts can relieve immediate hardship arising out of a past illegality, courts cannot grant additional benefits like seniority which have no element of immediate hardship. Ultimately while dealing with the promotions already given before 10.2.1995 the Bench directed as follows: "Thus, while promotions in excess of roster made before 1021995 are Page 23 of 62 HC-NIC Page 23 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess rosterpoint promotees shall have to be reviewed after 102 1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the "prospectivity" point in relation to Sabharwal."
21. At this juncture, it is condign to note that Article 16(4A) and Article 16 (4B) were inserted in the Constitution to confer promotion with consequential seniority and introduced the concept of carrying forward vacancies treating the vacancies meant for reserved category candidates as a separate class of vacancies. The said Articles as amended from time to time read as follows: "16(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
16(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total Page 24 of 62 HC-NIC Page 24 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT number of that year."
22. The validity of the said Articles were challenged under Article 32 of the Constitution of India before this Court and the Constitution Bench in M. Nagraj (supra) upheld the validity of the said Articles with certain qualifiers/riders by taking recourse to the process of interpretation. As the controversy rests mainly on the said decision, we will advert to it in detail at a later stage."
Thus, the aforesaid observation of the Supreme Court and recital by the Supreme Court of the earlier pronouncement of the subject would leave no room of doubt in respect of the fact that in the promotion also, the reservation is applicable and if the said is applied, the same will have to answer the overall limit of not exceeding 50%.
28. The another decision of the Supreme Court in case of K. Manorma V/s. Union of India (UOI) rep. by General Manager, Southern Railway and Ors., reported in (2010) 10 SCC 323 deserve to be referred to and the relevant paragraphs therefrom have to be extracted in order to appreciate the proposition of law.
"2. Short facts leading to this appeal are as follows : At the relevant time in November 1994, the appellant was working as a Chief Law Assistant which was a Group'C' post in the Southern Railways. The post higher to this post is that of the Assistant Law Officer which is a Group'B' post. At the relevant time the total cadre strength of Assistant Law Officers in Southern Railway was three. Initially when 'Assistant Law Officer' was a single post cadre, in the year 1991, it was filled by an open category candidate. Subsequently, when two more posts were created in the year 1994, reservation was applicable. The posts were to be filled on the basis of seniority cumsuitability. A notification holding 10 senior most candidates eligible for being considered for the two posts was issued on 10.11.1994. (The second Page 25 of 62 HC-NIC Page 25 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT respondent herein is the Chief Personal Officer of Southern Railways). To determine their suitability, a written examination was held. Eight Law Assistants obtained qualifying marks and became eligible for being called for the interview (one out of them opted out). The concerned committee recommended Respondent Nos. 3 and 4 for those two posts. Out of them, Respondent No. 3 is a Scheduled Caste candidate. Accordingly, the promotion order for both of them was issued on 26.5.1995.
3. The appellant also belongs to a Scheduled Caste and was of the view that the Respondent No. 3 (Mr. M. Siddiah), was promoted to the post of Assistant Law Officer on his merit and not because he was a Scheduled 2 Caste candidate. It was her contention that instead of Respondent No. 4 (Mr. K. Rajagopalan Nair) belonging to the open category, she should have been promoted to the post of Assistant Law Officer on the basis of her status as a Scheduled Caste candidate. She, therefore, represented to the Chairman of the Railway Board on 14.2.1996 but there was no response. She, therefore, filed the above referred O.A. In the Central Administrative Tribunal (hereinafter referred to as Tribunal) at Chennai. The respondents Nos. 1 and 2 filed their reply statement before the Tribunal and pointed out that as per the Railway Board's decision dated 29.7.1993 in small cadres having less than 4 posts, reservation had to be provided as per the 40 point roster when no SC/ST candidate was available in the Cadre. As per model 40 point roster the first point will have to be filled by a Scheduled Caste candidate, and the next two points were to be treated as unreserved. In para 1 & 2 of their reply the Respondent Nos. 1 and 2 stated as follows: "In this selection, the roster points to be filled up for the two vacancies were point Nos. 2 and 3. Both the points are UR (I.e UnReserved) points. As the first point which was a SC point was filled up by an UR candidate, being a single vacancy, out of the two vacancies for which notification was issued, one post was treated as SC."
4. The appellant submitted before the C.A.T. That if a Scheduled Caste candidate competes for a non Page 26 of 62 HC-NIC Page 26 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT reserved post and is selected, he should not be counted against the quota reserved for Scheduled Castes. According to the appellant, if the senior most among eligible candidates belongs to a Scheduled Caste, on being promoted, he should be treated as an open category candidate and should not be counted against the quota for Scheduled Castes. The judgment of a Constitution Bench of this Court in R.K. Sabharwal and Ors. vs. State of Punjab and Ors. [1995 (2) SCC 745] was relied upon in support.
5. The Central Administrative Tribunal accepted this submission and noted that the preposition in the R.K. Sabharwal and Ors. (supra) had been reiterated in para 11 of Ajit Singh Januja and Ors. vs. State of Punjab and Ors. [1996 (2) SCC 715], wherein after referring to the judgment in R.K. Sabharwal (supra) a bench of 3 Judges had observed that if a Scheduled Caste candidate has been appointed / promoted on his own merit, than such candidate shall not be counted towards the percentage of reservation fixed for them as stated in R.K. Sabharwal's case.
8. The mainstay of the argument of the appellant was, as stated earlier, that since Respondent No. 3 had been selected on merits he should not be considered as occupying a Scheduled Caste seat. The Scheduled Caste vacancy must therefore go to the next Scheduled Caste candidate as per the order of merit, and the appellant was that next candidate. Respondent No. 4 (Mr. K. Rajagopalan Nair) should not have been therefore promoted as an open category candidate and that post should have been allotted to the appellant. The appellant relied upon the Railway Board order dated 29.7.1993 in this behalf, which was issued to implement a fullbench decision of the Tribunal at Hyderabad, which states that where ST/SC candidates were promoted on their own merit, their seniority should not be counted as reserved candidates. The relevant part of the Railway Board's letter dated 29.7.1993 clarifies as follows in para (VI): "(VI) Whether a person belonging to SC/ST promoted Page 27 of 62 HC-NIC Page 27 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT on his own merit and seniority should be treated as reserved candidate for counting available SC/ST candidates As per judgment of the Full Bench of Central Administrative Tribunal/Hyderabad, the SC/ST candidates who have been promoted on their own merit and seniority should not be counted as reserved candidates. It has further been laid down in Board's letter dated 16.06.1992 that SC/ST candidate can be placed on the panel/select list even in excess of the reserved quota in case such candidates qualify against general posts on merit/seniority. These SC/ST candidate should be excluded for the purpose of counting the available SC/ST candidates while computing the reserved quota."
9. Now, as far as this aspect is concerned, Respondent Nos. 1 and 2 had made it clear that where the posts were less than 4, the 40 point roster was expected to be applied. As per that roster the first point was meant for a Scheduled Caste candidate and second and third points were meant for candidates from unreserved category. There is a note below this model roster which reads as follows: "Note--If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there is only one vacancy, it should be treated as unreserved. If on this account, a reserved point is treated as unreserved, the reservation may be carried forward to the subsequent three recruitment years."
14. As can be seen from this chart it was Respondent No. 4 who had obtained the highest marks I.e. 128. Mr. V. Subramanian and Mr. T.P. Bhaskar are next to him with 127 and 125 marks respectively. Thereafter, there are other candidates I.e. Mr. Siddaiah, Mr. Abdul Khader and Mr.Muthusamy who all get 124 marks. Mr. Siddaiah has been selected out of them, essentially because it was a Scheduled Caste vacancy which came to be allotted to him keeping aside other candidates. Not only that, but he was placed at number one and respondent No. 4 (having higher marks) was placed at number two. The Tribunal held that if Respondent No. 3 got marks lesser than that of Respondent No. 4, Page 28 of 62 HC-NIC Page 28 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT only then he can be said to be selected against Scheduled Caste point. The Tribunal did not realize that the third Respondent had in fact got marks lesser than the fourth Respondent, and his selection was basically because he was a Scheduled Caste candidate. In view of this position, there is no occasion to apply the instruction contained in Railway Board's letter dated 29.7.1993 nor the propositions in R.K. Sabharwal's judgment (supra) to the present case. Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of senioritycum suitability.
15. The appellant had argued before the High Court that the candidates who obtained 80% marks or above are to be placed at the top indicating that they are to be selected irrespective of the community factor. In appellant's submission Mr. M. Siddiah, had to be considered as one such candidate. Now the two relevant rules 204.8 and 204.9 read as follows: "204.8 The successful candidates shall be arranged as follows:
(1) Those securing 80% marks and above graded as 'Outstanding'.
(2) Those securing between 60% marks and 79% marks graded as 'Good'.
204.9 The panel should consist of employees who had qualified in the selection, corresponding to the number of vacancies for which the selection was held. Employees securing the gradation 'Outstanding' will be placed on top followed by those securing the gradation 'Good' interse seniority within each group being maintained.' It is to be noted, as seen from the marks which have been referred to earlier, that none of the candidates obtained more than 80% marks, and therefore, could not be considered as outstanding to be eligible on that footing. On this count also Mr. M. Siddiah's selection cannot be considered as one only on merit Page 29 of 62 HC-NIC Page 29 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT irrespective of the community factor.
16. In the circumstances, there is no error in the judgment and order rendered by the High Court. The appeal is, therefore, dismissed. Original Application, filed by the first respondent before the Administrative Tribunal, shall stand dismissed."
29. The Delhi High Court in case of A.K.Gautam V/s. Union of India and others in Writ Petition (C) No.3646 of 1999 decided on 14th May 2012, has made following observations : "5. Primarily, the following two issues arise for our consideration in this writ petition:
a) Whether SC/ST officers „promoted to a higher post on their own merit‟ are to be adjusted against general category posts or against reserved posts, in cases where the promotions are made on the basis of senioritycummerit, or is this benefit available only in the case of direct recruitments ?
b) Whether SC/ST candidates, having merit equal to the general category candidates and possessing the prescribed benchmark of „Good‟, can be said to have been promoted on the basis of their own merit, in a selection based on the norm of „senioritycummerit ?
6. It was contended by the learned Senior Counsel for the petitioner that since no element of merit is involved in promotion on the basis of senioritycummerit/senioritycumfitness/seniority cumsuitability which according to him are identical terms, the principle of "promotion on his own merit"
does not apply to such promotions. His contention was that this principle, would apply only in cases of promotion on the basis of merit, where comparative merit of the candidates coming in the zone of consideration are evaluated and possibly in the cases of promotions on the basis of Limited Departmental Examination. In support of his contention he has Page 30 of 62 HC-NIC Page 30 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT relied primarily upon Ajit Singh Januja and Others v. State of Punjab and Others (1996) 2 SCC 715 and K.Manorama v. Union of India 2010(10) Scale 304.
7. In R.K. Sabharwal (supra), reservation policy of Punjab Government was challenged on two grounds. The first contention of the petitioner was that for working out the percentage of reservation, the promotees/appointees belonging to the Scheduled Castes and Backward Classes, whether appointed against the general category posts or against the reserved posts are to be counted, meaning thereby that if the reservation is 14% for Scheduled Castes candidates and more than 14% of such candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates, then the purpose of reservation in the said cadre having been achieved, the Government instructions providing reservations would become inoperative. The second contention of the petitioners was that once the posts earmarked for Scheduled Castes/Tribes and Backward Classes on the roster are filled, the reservation is complete and the roster cannot operate any further. Any posts falling vacant in a cadre thereafter, are to be filled from the categories, „reserved‟ or general, due to retirement etc. of whose member the post fell vacant. Repelling the first contention, the Supreme Court interalia held as under: "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 reserve 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. When the Page 31 of 62 HC-NIC Page 31 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or charged simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing Reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointees/promotes belonging to the backward classes against the general category posts the given percentage has to be provided in addition........."
(emphasis supplied) The view taken on the second contention of the petitioner before Supreme Court is not relevant for our purpose.
In Union of India v. Virpal Singh Chauhan: (1995) 6 SCC 684, the Supreme Court was concerned with the nature of rule of reservation in promotions obtaining in the Railway Service and the rule concerning the determination of seniority between general candidates and the candidates belonging to the reserved classes in the promoted category.
Page 32 of 62HC-NIC Page 32 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT In para 29 of the judgment, the Supreme Court iner alia observed as under: "Be that as it may, as a result of the decision in R.K. Sabharwal and the views/findings recorded by us hereinabove, the following position emerges:
(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para 5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates."
(emphasis supplied)
8. The use of the expression "appointed/promoted" in para 4 of the judgment in R.K.Sabharwal (supra), coupled with the fact that the case before the Supreme Court was a case of reservation in promotions, in Punjab Service of Engineers (Class1), we have no hesitation in holding that the decision of the Supreme Court in this case applies not only to direct recruitments but also to the appointments by way of promotion. This view gets support from the use of the expression "promoted/appointed" in Veer Pal Singh Chauhan (supra) as well as in Ajit Singh Januja (supra). In any case, even the expression „appointment‟, in the absence of any indication to the Page 33 of 62 HC-NIC Page 33 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT contrary, includes appointment by promotion, as rightly held by the Tribunal relying upon the decision of 09 members‟ Bench of the Supreme Court in Indra Sawhney v. Union of India:
(1992) Supp (3) SCC 217.
9. By the OM No. 36012/2/96Estt.(Res.) dated 2.7.1997, DoP&T, inter alia, stated as under:
"The undersigned is directed to say that under the existing instructions, vacancy based rosters have been prescribed in order to implement the Government‟s policy relating to reservation of jobs for the Scheduled Castes, the Scheduled Tribes and the other backward classes. The application of reservation on the basis of these rosters was called into question before Courts. The Constitution Bench of the Supreme Court in 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 backward classes SC/ST/OBC should apply to posts and not to vacancies. The court further held that the vacancy based rosters can operate only till such time as the representation of person belonging to the reserved categories, in a cadre reaches the prescribed percentages of reservations. Thereafter, the rosters cannot operate and vacancies released by retirement, resignation, promotion etc. of the person belonging to the general and the reserved categories are to be filled by appointment of persons from the respective category so that the prescribed percentage of reservation is maintained. With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 200 point, 40 point and 120point vacancybased rosters shall be replaced by post based rosters. All Page 34 of 62 HC-NIC Page 34 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Ministries/Departments and concerned Authorities are requested to prepare the respective rosters based on the principles elaborated in the explanatory notes given in Annexure1 to this O.M. And illustrated in the model Rosters annexed to this O.M. As AnnexureII, III and IV. Similarly, the concerned authorities may prepare rosters to replace the existing 100point rosters in respect of local recruitment to group C & D posts on the basis of the same principles.
x x x x At the stage of initial operation of a roster, it will be necessary to adjust the existing appointments in the roster. This will also help in identifying the excesses/shortage, if any, in the respective categories in the cadre. This may be done starting from the earliest appointment and making an appropriate remark"utilized by SC/ST/OBC/GEN"
as the case may be against each point in the rosters as explained in the explanatory notes appended to the model rosters. In making these adjustment, appointment of candidates belonging to SC/ST/OBCs which were made on merit (and not due to reservation) are not to be counted towards reservation so far as direct recruitment is concerned. In other words, they are to be treated as general category appointments." (emphasis supplied) Vide OM No. 36038/17/2001Estt.(Res.) dated 11.7.2002, DoP&T issued the following clarifications regarding its earlier OM dated 2.7.1997, which it had issued in implementation of the decision of Supreme Court in R.K.Sabharwal (supra). The OM, to the extent it is relevant, reads as under:
"Subject: Reservation in promotion - Treatment of SC/ST candidates promoted on their own merit The undersigned is directed to say that this Page 35 of 62 HC-NIC Page 35 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Department has been receiving references from various Ministries etc. regarding adjustment of SC/ST candidates promoted on their own merit in the reservation rosters introduced vide DoPT‟s OM No. 36012/2/96Estt.(Res.) dated 2.7.1997. While it is clear from the OM dated 2.7.1997 that the SC/ST/OBC candidates appointed by direct recruitment on their own merit and not owing to reservation will be adjusted against unreserved points of the reservation roster, doubts have been raised about SC/ST candidates promoted on their own merit. It is hereby clarified that:
(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected he will be appointed to the post and will be adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any."Page 36 of 62
HC-NIC Page 36 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT By the OM No. 36028/17/2001Estt.(Res.) dated 31.1.2005 DoP&T clarified that since in case of promotions by nonselection, promotions are made on the basis of senioritycumfitness and the concept of merit is not involved, the OM dated 11.7.2002 does not apply to the promotions made by non selection method. However, vide OM No. 36012/45/2005Estt. (Res.) dated 10.8.2010, DoP&T after examining the matter in the light of the decision of Madras High Court in Union of India v. S.Kalugasalamoorthy WP No.15926/2007 withdrew the OM No.36028/17/201Estt. (Res.) dated 31.1.2005 and clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact that whether the promotion is made by selection method or nonselection method. These instructions took effect from 2.7.1997, the date on which post based reservation was introduced.
(emphasis supplied)
10. From a combined reading of the aforesaid Oms it becomes evident that the OM dated 2.7.1997, issued towards implementation of the decision of Supreme Court in R.K.Sabharwal (supra) for not counting appointments made on the basis of merit, in the quota meant for reserved categories, applies not only to direct appointments but also to promotions, including the promotions on the basis of seniority cummerit (nonselection method). The OM dated 31.1.2005 having been set aside by the Madras Bench of Central Administrative Tribunal in OA No. 900/2005, the order of the Tribunal having been upheld by the Madras High Court and the decision of the High Court having been accepted by Government of India, no reliance can be placed by the petitioner on the said OM dated 31.1.2005, to interpret the OM dated 2.7.1997 issued by DoP&T since the OM No. 36012/45/2005Estt. (Res.) dated 10.8.2010 is clarificatory in nature and not in its modification/supersession. It is a settled proposition of law that an explanation or a clarification has a retrospective effect (see S.B. Chattarjee v. S.D. Majumdar & Ors, (2007) 10 SCC 513 and Ashok Page 37 of 62 HC-NIC Page 37 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Lenka v. Rishi Dikshit and Ors. (2006) 9 SCC
90). It would mean that on issue of OM dated 2.7.1997, the principle of not counting of SC/ST candidates promoted/appointed "on their own merit"
against reserved vacancies had become applicable to all promotions, including the promotions on the basis of senioritycummerit (non selection method).
Even otherwise, the Supreme Court did not use the expression "comparative merit" or "superior merit", but used the expression "on their own merit".
11. We also note that vide OM No. 36011/1/98 Estt. (Res.) dated 1.7.1998 DoP&T clarified that only such SC/ST/OBC candidates who are selected on the same standards as is applied to general categories shall not be adjusted against reserved vacancies. It was further stated that when a relaxed standard is applied in selecting an SC/ST/OBC candidate, for example in the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates etc. the SC/ST/OBC candidates are to be counted against reserved vacancies. The benefit of the relaxed standard should have been taken by the reserved category candidate, in promotion, if his promotion is to be counted against reserved vacancy. We also take note of the fact that this OM was issued by way of clarification of instructions contained in the OM dated 2.7.1997 which provided that the SC/ST/OBC candidates selected on their own merit will be adjusted against reserved vacancies. This OM clearly indicates that while issuing the OM dated 2.7.1997 Government of India was of the view that if the standard applied in selection of SC/ST/OBC candidate is equal to the standard applied in selection of general category candidates, the appointment of reserved category candidates would not be counted against reserved vacancies.
In the case before us, admittedly, general category candidates as well as reserved category candidates Page 38 of 62 HC-NIC Page 38 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT were subjected to the same standard for promotion to the post of Superintendent (Group „B‟) in Central Excise and Customs. This is not the case of the petitioner before us that while making promotions to the post of Superintendent (Group „B‟) amongst reserved category candidates, any relaxation was granted in age, experience, qualification etc. or that any extended zone of consideration was applied in promotion of those, whom the Tribunal has directed to be considered for appointment against general vacancies. As noted earlier by us, the OM dated 2.7.1997 in view of subsequent clarification issued by DoP&T applied not only to direct appointments but also to promotions, including promotion by way of senioritycumfitness, as is evident from the clarification dated 10.8.2010 issued by DoP&T. Therefore, in our opinion, Oms issued by DoP&T envisaged that the SC/ST candidates, promoted on the basis of standards equal to those prescribed for general category candidates will be considered to have been promoted on their own merit and seniority and not owing to reservation.
12. The issue involved in this petition also came up for consideration before another Division Bench of this Court in WP(C) No. 1137173/2005 decided on 15.2.2008. That was a case of promotion of Inspectors of Central Excise to the post of Superintendent Grade „B‟. The Recruitment Rules for the promotional post provided that an Inspector with 8 years‟ service on regular basis would be eligible for consideration for promotion to the next grade of Superintendent Grade B which was a selection post. There were a total of 282 vacancies in the cadre of Superintendent Grade B, out of which 39 were reserved for SC candidates, 24 for ST candidates, the remaining 219 vacancies being unreserved. While making promotions some of the persons belonging to SC/ST categories were adjusted against unreserved posts meant for general category candidates. This was challenged before the Tribunal which directed the respondents in the OA to apply the principles, which it had evolved in its earlier decision in the case of B.C.K.Ralu v. Chief Commissioner of Central Excise Andhra Pradesh Zone and Anr. (decided by Hyderabad Bench of the Tribunal dated 31.7.2003). The order of the Tribunal was challenged by the Page 39 of 62 HC-NIC Page 39 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Government before this Court. On examination of various Oms issued by DoP&T, this Court inter alia observed as under:
"Conjoint reading of the aforesaid four clarifications would make it abundantly clear that when SC/ST candidates are appointed even by promotion on their merit and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points and not against reserved points. They would still retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions. Once such SC/ST candidates getting promotion on their own merit and not due to reserved points, even while calculating 50% points on reservation such persons would be excluded meaning thereby they would not be treated as promoted against reserved category.
For promotion to grades below the revised payscale of Rs. 12,00016,500 where the mode of promotion is 'selection', the benchmark prescribed is 'good'. Thus, those officers who qualify the benchmark of good will be graded by the DPC as fit or unfit. Those who are graded as fit shall be included in the select panel prepared by the DPC in order of their interse seniority in the feeder grade and there shall be no supersession in promotion among those who are found fit by the DPC in terms of the prescribed bench mark of 'good'."
The respondents in that case contended that since as per OM dated 8.2.2002, the mode of promotion was selection, and all the candidates who achieved the benchmark of „good‟ were to be classified as fit and there being no supersession in promotion, there was no element of merit as visualized in the OM dated 11.7.2002. Dealing with the contention this Court Page 40 of 62 HC-NIC Page 40 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT inter alia observed and held as under:
"After considering the respective submissions and the position contained in various office memoranda, we are of the opinion that having regard to the recruitment rules, it cannot be said that the promotion to the post of Superintendent Grade B is merely on the basis of seniority. It is treated as selection post. The procedure to be observed by the DPC when the mode of promotion is selection as prescribed in OM dated 8.2.2002. As per this OM the bench mark 'good' is provided. No doubt, the persons are to be ultimately rated as 'fit' or 'unfit'. However, only those candidates would be eligible for promotion who are declared fit and to get the declaration of fit, DPC has to consider and arrive at a conclusion, on the basis of ACRs and other material provided to it, as to whether they are to be graded as good. There is an element of selection here and unless a candidate achieves this bench mark, he would be treated as unfit. Fit or unfit Therefore has relevance to achieving the prescribed bench mark and does not have the same connotation as senioritycumfitness. The bench mark 'good' has the element of merit.
Therefore, what is relevant for us to note as to whether SC/ST candidates are selected for promotion to this post on the same standard as applied to general candidates. If that is so, they would not be adjusted against reserved vacancies. On the other hand, if relaxed standards are applied in making their promotions, for example lesser Bench Mark, lesser period of qualifying service, bringing them in zone of consideration because of the reason of their being SC/ST, comparatively lesser ACRs etc., then they would be deemed as promoted against Page 41 of 62 HC-NIC Page 41 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT reserved vacancies. The bench mark for general category candidates is good. It is not known and nothing has come on record to show as to what was the bench mark provided for those Inspectors who belonged to the categories of SC/ST. In the absence of such material provided before us or before the Tribunal it is not possible to come to a definite conclusion. At the same time, we find that without focusing on this aspect which was relevant, the Tribunal simply followed B.C.K. Ralu (supra) and directed the petitioners to pass a detailed and speaking order on the representation of the respondents herein. In these circumstances, having regard to the aforesaid legal position, we modify the directions contained in the order of the Tribunal and dispose of the writ petition by substituting the following directions:
Those candidates belonging to SC/ST category who were recommended for promotions applying the same bench mark of 'good' as applicable to the general candidates such SC/ST candidates would be adjusted against unreserved points. On the other hand such SC/ST candidates who are given promotion on the basis of relaxed standards would be treated as promoted against reserved vacancies."
This Court, during the course of the judgment, noted that vide OM dated 11.7.2002 it had been clarified that those SC/ST candidates who were selected on their own merit were to be adjusted against unreserved slots. This judgment squarely applies to the case before us, as the rules for promotion for the feeder cadre of Inspectors in Central Excise and Customs to Superintendent Grade B are identical to the rules for promotion from cadre of Inspector in Central Excise to Superintendent Grade B in Central Excise, which were subject matter of Bharat Bhushan & Anr (supra). The benchmark prescribed is „good‟ Page 42 of 62 HC-NIC Page 42 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT in both the cadres. Those, who achieved the prescribed benchmark are to be rated fit and those who are declared fit are to be promoted in order of their seniority. As noted by this Court, there is an element of selection in the benchmark „good‟ since those who had not achieved the prescribed benchmark of "good" are required to be treated as unfit and consequently are not to be promoted.
13. In Union of India v. Central Administrative Tribunal, Writ Petition No. 1311/1999, decided by Madras High Court on 28.1.2003 the decision of which was affirmed by Supreme Court in K.Manorama (supra), Rule 204.8 of the relevant rules provided that the candidates securing 80 marks and above would be graded as "Outstanding" and candidates who were securing between 60% marks and 79% marks would be graded as "Good". Rule 204.9 provided that employees securing the gradation "Outstanding" were to be placed on top, followed by those securing the gradation "Good", inter se seniority within each group being maintained. The High Court noted that the selection of „outstanding‟ candidates was placed purely on merit, without any other consideration, but, as far as rest of the candidates were concerned, seniority was to prevail, irrespective of variation in their qualifying marks. The "outstanding‟ candidates were to have a march over all other candidates, irrespective of seniority, but, when it came to candidates coming in the category of "Good‟, seniority alone was to prevail, irrespective of the qualifying marks secured by them. Of the two vacancies notified, one was reserved and other was unreserved. No candidate had secured 80 marks or more in the written examination and therefore all the successful candidates were arrayed in accordance with their seniority in the feeder cadre. The 03rd respondent who was a scheduled caste candidate and was also the seniormost, was placed at sl. No. 1 while the 04th respondent, who was a general category candidate, was placed at sl. No. 2. The second respondent an SC candidate was placed at sl. No. 5 in the order of seniority. Admittedly, in the roster, SC point had to be filled in at the first instance and the unreserved post had to be filled next. Since between 2nd and 3rd respondents, who belonged to reserved category, the Page 43 of 62 HC-NIC Page 43 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT 3rd respondent was the seniormost, having achieved the first place in the gradation list, by virtue of minimum qualifying marks scored by him his selection to the post of Assistant Law Officer at SC point was imperative, the High Court was of the view that once the post in the reserved category got filled up, there was no scope for the claim of the second respondent in the reserved category. In unreserved category, since the fourth respondent was the senior most as per the gradation list, he having secured the required marks for getting a placement at the second level by virtue of his seniority, his selection under unreserved category was also held to be correct. The contention raised on behalf of the second respondent was that though the third respondent belonged to a reserved category, on account of his position as No.1 in the gradation list, he ought to have been selected against unreserved post, excluding the claim of the other selected candidates. The High Court found no merit in the contention, the same being applicable only to „outstanding‟ candidates and not to „good‟ candidates. The High Court also held that the third respondent, who was a scheduled caste candidate could not have been selected against unreserved category inasmuch as once he stood first in the gradation list, by virtue of his „good performance‟ along with others by virtue of his seniority, he had to be considered for selection in the „SC category‟, which was the roster point in that selection and when once his selection in that „SC category‟ was rightly made, there was no scope for considering the claim of the second respondent in that category. It would thus be seen that in the case before the High Court, it was the reserved point in the roster which was to be filled up first. Respondent No.3 who was a reserved category candidate, who on account of his having secured the qualifying marks and graded as „good‟ and also being seniormost amongst the qualified candidates was required to be considered against the reserved vacancy. It was not open to the Selection Committee not to consider him against the reserved post, which was to be filled before filling the unreserved post. Once respondent No.3 was selected against the reserved post, there was no question of considering him again against the unreserved post. It would thus be seen that the High Court upheld the selection of respondent No.3 against the reserved post Page 44 of 62 HC-NIC Page 44 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT on account of the reserved post being the first one in the roster to be filled up by promotion and respondent No.3 besides being a reserved category candidate was also the seniormost qualified candidate.
When the matter was taken to Supreme Court, the appellant before the Supreme Court who also belonged to a scheduled caste took the plea that respondent No.3 Mr. M. Siddiah had been promoted on his own merit and not because of his being a SC candidate and therefore he should have been adjusted against the general category vacancy, whereas she should have been promoted against the reserved post, on account of her being a scheduled caste. On examination of the matter, Supreme Court found that, in fact, respondent No. 3 had not obtained highest marks. He had obtained 124 marks, whereas respondent No. 4 obtained 128 marks. Two more candidates, who were not selected, had obtained marks higher than the marks obtained by respondent No.3.
The Supreme Court noted that the Tribunal had observed in para 14 of its order that respondent No.3 had obtained the highest number of marks in the selection and therefore the question of his being the SC candidate had evaporated on account of his being the most meritorious candidate in the entire selection. The Tribunal had also observed that had respondent No.4 come up in the marks over that of respondent No.3 and the question of the respondent No.3 being the senior in the SC candidates, then respondent No.3 would have been justified in being empanelled in the reserved category. The Supreme Court noted from the chart quoted in the judgment that respondent No.4 had actually obtained the highest marks I.e. 128, whereas respondent No.3 Mr. Siddaiah had obtained 124 marks. There were two other candidates between respondent No.4 and respondent No.3, one of them having obtained 127 marks and other having obtained 125 marks. The Supreme Court observed that Mr. Siddaiah (respondent No.3) had been selected out of them essentially because it was a scheduled caste vacancy, which came to be allotted to him, keeping aside other candidates. The Court was Page 45 of 62 HC-NIC Page 45 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT of the view that there was no occasion to apply the instruction contained in Railway Board‟s letter dated 29.7.1993 nor the propositions in R.K.Sabharwal‟s case (supra). The observations made by the Supreme Court in this regard are as under:
"In view of this position, there is no occasion to apply the instruction contained in Railway Board's letter dated 29.7.1993 nor the propositions in R.K. Sabharwal's judgment (supra) to the present case. Even otherwise, the principle that when a member belonging to a Scheduled Caste gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota reserved for Scheduled Castes, but will be treated as open candidate, will apply only in regard to recruitment by open competition and not to the promotions effected on the basis of senioritycumsuitability."
14. The learned counsel for the private respondents submitted that the decision of Supreme Court in K.Manorama (supra) would not apply to the case before this Court for the reasons that (I) respondent No. 3, in that case, who was promoted against the reserved post had obtained lesser marks (124) than the general category candidate who had obtained 128 marks and, therefore, did not have equal merit (ii) the first vacancy to be filled up by promotion was a reserved vacancy and the SC candidate having already been selected against that vacancy could not have been considered against the general category vacancy and (iii) no office order or circular similar to clarificatory Oms dated 11.7.2002 and 10.8.2010 had been issued. He also submitted that in view of the decision of the Constitution Bench of Supreme Court in R.K.Sabharwal (supra), it is no more res integra that not only those who are appointed by way of direct recruitment, but also those who are promoted on the basis of their own merit are to be adjusted against the general vacancies and not against the reserved vacancies. We take note of the fact that in case of K.Manorama (supra), it Page 46 of 62 HC-NIC Page 46 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT were rules 204.8 & 204.9 of the relevant rules which applied to the case before the Court. Neither OM dated 2.4.1997 nor the Oms dated 11.7.2002 & 10.8.2010 issued by DoP&T were applicable to the case before the Supreme Court. Therefore, the observations made by the Supreme Court in the context of the rules of Railways, would not ipso facto apply to the case before us, where the promotions were to be made in terms of various Oms issued by DoP&T from time to time.
15. Relying upon the decision of Supreme Court in Ajit Singh Januja (supra) as well as the view taken by this Court in Bharat Bhushan (supra), it was contended by the learned counsel for the petitioner that since some of the reserved category candidates had, on account of reservation available in confirmation at the relevant time, been granted earlier confirmation and consequently had become senior to the petitioner, who was appointed earlier to them in point of time, promotion of such candidates cannot be counted against general vacancies.
16. In Ajit Singh Januja (supra), the Government of Punjab had issued a circular stating therein that those Scheduled Castes/Backward Classes employees who get appointed/promoted against reserved points on the basis of their merit/seniority could not be counted for the purpose of reservation but that reserve point should be carried over to the next point on the roster and filled by a candidate/employee belonging to Scheduled Castes/Backward Classes, so that the deficiency of representation in service is made up. The issue which Supreme Court was called upon to consider in that case was as to whether, the members of Scheduled Casts/Tribes/Backward Classes, for whom specific percentage of posts had been reserved and roster had been provided and who had been promoted against those posts on the basis of "accelerated promotion", because of reservation of posts and applicability of the roster system can claim promotion against general category posts, in still higher grade, on the basis of their seniority, which itself was the result of „accelerated promotion‟ on the basis of reservation in roster. Allowing the appeal and setting aside the judgment of the Full Bench of Page 47 of 62 HC-NIC Page 47 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT Punjab and Haryana High Court, Supreme Court observed and held as under: "In R.K. Sabharwal's case, this Court has treated the members of the Scheduled Castes and Backward Classes in two categories I.e. those who are appointed or promoted having competed with general category candidates on merit and those who are appointed/promoted on basis of reservation and roster. For those who have competed on merit it has been held that their number is not to be taken into consideration while working out the percentage of reservation. In respect of those members of Scheduled Castes and Backward Classes, who have been appointed/promoted on the basis of reservation and roster, it has been said in clear and unequivocal terms that the "running account" shall stop after the quota provided under the instructions is reached and the roster cannot be operated thereafter. In other words, there is no question of promoting further number of such candidates, who have been appointed/promoted on the basis of reservation and roster. If the contention of the respondents is accepted as has been done by the High Court that such appointees/promotees can be considered against posts meant for general category candidates merely because they have become senior on basis of accelerated promotions then, according to us, that exercise shall amount to circumventing the judgment of the Constitution Bench of this Court in the Sabharwal case, because for all practical purposes the promotions of such candidates are being continued like a running account although the percentage of reservation provided for them has been reached and achieved. Once such reserved percentage has been achieved and even the operation of the roster has stopped, then how it will be permissible to consider such Page 48 of 62 HC-NIC Page 48 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT candidates for being promoted against the general category posts on the basis of their accelerated promotion, which has been achieved by reservation and roster.
Once the quota is full and roster has stopped for members of the Scheduled Castes and Backward Classes in respect of whom reservation has been made and roster has been prescribed then their case for promotion to still higher grade against general category posts has to be considered not treating them as members of the Scheduled Castes or Backward Classes "on any crutch". They cannot be promoted only on basis of their 'accelerated seniority' against the general category posts. In R.K. Sabharwal's case it was said that the candidates belonging to Scheduled Castes who compete on their own merit along with general category candidates then they are not to be counted within the percentage of reservation made for such candidates in the service, because they have competed with the general category candidates on their own merit. The same principle which has been enunciated by the Constitution Bench in the aforesaid case shall be applicable whenever a member of Scheduled Castes or Backward Classes has got accelerated promotion to a higher grade and is to be considered for further promotion to a still higher grade against general category posts. The accelerated promotions are to be made only against the posts reserved or roster prescribed. There is no question of that benefit being available when a member of Scheduled Castes or Backward Classes claims promotion against general category posts in the higher grade. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category candidate is promoted later to that Page 49 of 62 HC-NIC Page 49 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT higher grade the general category candidate shall regain his seniority over such earlier promoted scheduled caste/tribe candidate. As already pointed out above that when a scheduled caste/tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such scheduled caste/tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such scheduled caste/tribe candidate visavis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for scheduled caste/tribe candidate in still higher grade then such candidate belonging to scheduled caste/tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority cum merit or merit cum seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered in service on basis of reservation and roster but have excluded the general category candidates from being promoted to be posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent Page 50 of 62 HC-NIC Page 50 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution." (emphasis supplied) The case before us is not a case of second or subsequent promotion. We are concerned with promotion to the cadre of Superintendent Grade „B‟ from the cadre of Inspectors, who were directly appointed in that cadre. The case before us is not a case of further promotion of those SC/ST candidates, who had already obtained „accelerated promotion‟ in the feeder cadre. This was for the first time, they were being considered against a promotional post. The principle laid down by Supreme Court in Ajit Singh Januja (supra) is known as „catch up principle‟. However, a contrary view was taken by a Three Judge Bench of Supreme Court in Jagdish Lal v. State of Haryana (1997) 6 SCC 538. That view was overruled by the Constitution Bench in Ajit Singh (II) vs. State of Punjab (1999) 7 SCC 209 and Ram Prasad v. D.K. Vijay, (1999) 7 SCC 251. The Constitution Bench reaffirmed the view taken in Veer Pal Singh Chauhan (supra) and Ajit Singh Januja (supra). The issue became alive again on enactment of Constitution (Eightyfifth Amendment) Act, 2001 which was aimed at restoring the benefit of consequential seniority to the reserved categories w.e.f. 17.06.1995. The 77th and 85th Amendment to the Constitution were challenged before Supreme Court and the matter was decided by a Constitution Bench in M. Nagaraj v. Union of India (2006) 8 SCC
212. The Constitution Bench upheld the 77th, 81st, 82nd and 85th Amendments to the Constitution as well as their retrospective effect. Certain conditions were, however, imposed by the Constitution Bench. The view taken in M. Nagraj (supra) was affirmed in Suraj Bhan v. State of Rajasthan, (2011) 1 SCC 467 as well as in a recent decision in U.P. Power Corporation Limited v. Rajesh Kumar & Ors. 2012 (4) Scale 687. In the case before us, we are not concerned with those conditions since the validity of the Oms issued by DOP&T from time to time has not been challenged before us.
This decision, therefore, does not apply to the issues which we are called upon to decide in this petition.
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17. This Court in Bharat Bhushan (supra) gave certain examples of relaxed standards in obtaining promotions, for example lesser benchmark, lesser qualifying service, extended zones of consideration on account of being from reserved categories, lesser number of ACRs etc. to be considered for promotion. Obtaining early confirmation was not one of the examples of relaxed standard given by this Court in the case of Bharat Bhusahn (supra). The learned counsel for the petitioner has not drawn our attention to any judicial pronouncement holding that obtaining early confirmation by a reserved category candidate would amount to obtaining promotion on the basis of relaxed standards. More importantly, the petitioner ought to have challenged the earlier confirmation granted to those reserved category candidates who were junior to him in the feeder cadre of Inspectors at the time when the confirmation leading to their becoming senior to him in that cadre was granted. By not challenging their early confirmation, the petitioner accepted the seniority granted to them by the department. Having accepted the seniority by not challenging the same before an appropriate forum, the petitioner cannot now rake up that issue in the form of the argument advanced by him. It would be appropriate for us to note at this stage that in The Direct Recruit ClassII Engineering Officers' Association and Others v. State of Maharashtra and Others: (1990) 2 SCC 715, a Constitutional Bench of Supreme Court clearly held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The petitioner therefore ought to have challenged, at the appropriate time, the early confirmation and consequent seniority granted to those reserved category Inspectors who were junior to him in the cadre of Inspectors. No such course of action was however taken by the petitioner. We, therefore, find no merit in this submission.
18. For reasons stated hereinabove we find no legal infirmity in the impugned order. The writ petition is devoid of any merit and is hereby dismissed without any order as to costs."
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30. Thus, the aforesaid decision clearly indicate that the reservation in promotional post is also applicable and permissible based upon the principle pronounced by the Supreme Court in light of the constitutional provisions. Now in light of the aforesaid observations, in various decisions, it can well be said that now the point of reservation in promotional post is no more res integra and the controversy raised in these petitions was required to be decided in light thereof.
31. The submission of Shri M.S.Rao, learned advocate for the petitioners of S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006, who were not party is to the effect that the Tribunal could not have proceeded with the matter without there being effective representation from the concerned affected parties, who are in the instant case, the petitioners in S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006. This contention appears to be just, as the tribunal could not have proceeded with the matter in which the tribunal was in fact calledupon to examine the very notification dated 4th August 2004 in which there were recruitment announced for as many as 24 vacancies in the post of Passenger Driver in the pay scale of Rs.5000 - 9000. The affected parties were naturally those S.C. candidates in whose favour the 10 seats out of 24 were reserved. The tribunal unfortunately has proceeded on the basis that the said notification on the face of it indicated that there was clear violation of the 50% moratorium reserving the vacancies. In fact, the basic principle required to be borne in mind in this type of matters was unfortunately not adverted to at all by the tribunal and therefore, to that extent we may say that the learned counsel for the petitioners in these petitions was justified in submitting that there ought to have been effective representation on their side also.
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32. This aforesaid contention though appears to be well taken would not require to be given greater emphasis than what it deserves, as in the subsequent event, the petitioners of S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006 did make an attempt to seek audience and hearing from the tribunal by way of Review Application being no.8 of 2006, in which though restricted but opportunity was available to the petitioners to make there stand clear. The Court hastened to add here that though said opportunity was in fact required to be characterized, as limited as it was restricted on account of limited scope of review application, as observed by the tribunal itself.
33. Learned counsel for the petitioners in S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006, further contended that the judgment and order of the tribunal passed in O.A. No.286 of 2005 on 2nd March 2006 could not have been passed, as the tribunal appears to have erred in not appreciating the fact that the original petitioners in O.A. No.286 of 2005 did not challenge the said notification dated 4th August 2004 and permitted the entire proceedings pursuant thereto and participated in the process and after having failed in the process, belatedly assailed the same, which was not open to them in light of the authorities cited at the bar on their behalf i.e. (1) AIR 1986 SC 1043 in case of Om Prakash Shukla V/s. Akhilesh Kumar Shukla and others relevant paragraph no.23, (2) Vijendra Kumar Verma V/s. Public Service Commission, Uttarakhand and others, reported in (2011) 1 Supreme Court Cases 150 with emphasis upon paragraph no.24 and the judgments on this line.
34. The aforesaid two judgments in our considered view though laying down a ratio in the facts of those cases, in which the Court did not approve the challenge to the selection process by the unsuccessful Page 54 of 62 HC-NIC Page 54 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT candidate on the ground that the unsuccessful candidate chose to participate knowing fully well the drawbacks and therefore, subsequently after failing in the process, he cannot be permitted to assail the same on the very same ground, which he did not object while taking the process. In the instant case, we are unable to except this contention of learned counsel for the petitioners of S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006, as the original petitioners in fact appears to have approached the tribunal much before the declaration of the result. The entire controversy in the instant case, touching upon the Constitutional provision and it's implementation i.e. applicability of the reservation and the ceiling thereon. Therefore, the same cannot be said to be suffering from any factor like estopple etc., as there cannot be any estopple in such a situation and therefore, the facts of the present case being different than the case cited hereinabove, the submission of learned counsel for the petitioners of S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006 assailing the tribunal's order, in our view does not deserve acceptance.
35. The Court therefore, now is to examine as to whether the tribunal's order assailed in this proceeding and which is sought to be supported by the respondents, could be said to be just and proper so as to call for no interference.
36. The tribunal's order dated 2nd March 2006 passed in O.A. No.286 of 2005 and its recording of findings in some paragraphs deserve to be setout hereinbelow.
"2. The facts lie in a narrow compass. It appears from Annex. A/9, annexed to M.A.417/05, that the respondents had also notified earlier a selection for 20 posts of passenger drivers. No posts were reserved Page 55 of 62 HC-NIC Page 55 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT either for SC/ST on that occasion. The respondents have thereafter issued the impugned notification. It appears from AnnexureA/4 that this matter of providing reservation in excess of 15% for SC and 7 ½% for ST had been discussed as PNM item 177/04 and that the WREU association was expecting an early reply.
3. The case of the applicants in brief was that there was already an over representation of SC/ST in passenger drivers and that this reservation could not have been provided. They have referred to Annex. A/2, which shows that against a sanctioned strength of 89 posts, 74 persons are in position and that 15 posts are vacant.
They had subsequently along with M.A. 471/05 produced a statement, Annex.A/8 that these 89 posts consists of 35 posts of driver (electric) and 54 posts of driver (diesel). It was further indicated that 67 posts have been filled up and 22 are vacant.
The respondents have filed a detailed reply denying many assertions including genuineness of Annex.A/2. They have, however, nowhere stated the cadre strength, the persons in position, the representation of SC/ST therein, Annex.R/2 shows that the Union has been replied to on the question of imbalance about questions from electrical and diesel branch and not on the question of reservation. The following justification has been given for reserving these posts "5... It is submitted that in a cadre of 65 the reserved points for SC which have fallen vacant are required to be filled in by candidates belonging to SC community and as such the Notification dated 4/6/2004 (Annexure A/1) is in order. It is once again reiterated that the reservation is to be provided against the reserved point and not on percentage basis as alleged. The Applicants have no cause to file the present O.A."Page 56 of 62
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7. Coming to the facts of this case, we find that while the applicant claims that cadre is of 89 persons the respondents say it is of 65 persons. The said controversy could have been easily resolved if the respondents had produced the sanction order. Nothing has also been stated by the respondents regarding the point of roster to which appointments have been made. It could then have been ascertained as to how are many of these 24 posts have to be filled by roster and how many on replacement basis.
8. A simple computation shows that against 24 posts 3.4 or say 4 posts of SC & 1.8 or 2 posts of ST would be admissible. As a matter of facts 10 posts of SC can become admissible only against 65 posts.
9. It is clear from the foregoing discussions that even if all these posts are on roster at best 4 posts of SC and 2 posts of ST posts could have been reserved though the actual reservation could have known only by knowing the roster points operated and replacement if any. Unfortunately, nothing has been brought on record by the respondents to justify their action. Nothing has been stated about the carry forward vacancies."
37. Thus, from the aforesaid excerpts from the tribunal's order, one can easily makeout that after adverting to the provision of law extensively, the tribunal did advert to the factual aspect, as the original applicant claimed that there were 89 persons in the cadre as against that respondent railway said that there were 65 persons. Thus, the tribunal was not appraised of the fact that what was the real cadre strength so as to apply principle governing reservation. As could be seen from the discussion in paragraph nos.8 and 9, many things have been left to the realm of conjuncture and surmises and therefore, it can well be said that there was no place before the tribunal to arrive at a concrete conclusion on the facts and therefore, against the backdrop of the law laid down by Page 57 of 62 HC-NIC Page 57 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT the Supreme Court especially in the subsequent paragraphs of U. P. Power Corporation (supra), it can well be said that the factual aspect has to be examined first for making the principle of law applicable. In the instant case, the very basis of the factual aspects were lacking and therefore, in our considered view the order of the tribunal dated 2nd March 2006 cannot be said to be based upon the factual aspects or rather after adverting to the factual aspects.
38. That brings the Court to examine the subsequent order of the tribunal rendered in both the review applications on 6th September 2006. The relevant paragraphs from that order also deserve to be reproduced hereinbelow in order to appreciate the tribunal's advertence thereto and the rival contentions in this behalf.
"12. Reliance was also placed by him on the decision of Hon'ble M.P. High Court in Mukesh Jani V/s. State & Ors. [2003 LAB I.C. 2019].
"Where factum of limitation and delay and laches reconsidered in its order allowing application for review and the Tribunal also adverted itself to the applicability of particular circular, it was clearly perceptible that the Tribunal was adjudicating the matter as if it was dwelling upon the its afresh and the order was liable to be quashed.
Moreover, even when the issue of limitation has been erroneously decided that cannot be a ground for review.
Further, at the first instance the Tribunal had expressed the view and taken into consideration certain documents and interpreted it in a different manner. A different interpretation would not come within the ambit and sweep of the concept of review."Page 58 of 62
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13. Great emphasis has been laid on the fact that the applicants had not been impleaded as a party. It is seen from the record of the main O.A. that the respondents, Railway Administration never thought if fit to bring the result of the selection test on record during the pendency of the O.A. in any case the order appointing them was subject to the outcome of the case.
14. It is clear what has been discussed above that the respondents, Railway Administration were in full knowledge of the facts. It was upto them to set up a specific case regarding the representation of the persons belonging to member of Scheduled Caste in the Passenger Driver category. It was also open to them to set up the case that all the persons belonging to S.C. who have been promoted in the past, had been promoted on merit and therefore did not belong to General category. The respondents Railway Administration had not set up a counter case on these lines and merely satisfied itself by denying the case of applicants in O.A. These documents were in their custody all along.
15. We have also noticed that no plea of carry forward vacancies had been raised by the respondents, Railway Administration in the O.A. and no assertion was made that selection are being held separately for backlog of SC, which has been carried forward. The selection notification was under
challenge and the subsequent appointment is consequence of that selection notification. If the reservation had not been properly applied, then the entire zone of consideration would change.
16. It is well settled that the government department have to play a role of amicus curie when there is clash between two sets of employee namely, direct recruit or promotees or between General category and persons belonging to reserved category.
Such an approach could not be discerned in the reply filed by the official respondents in the instant case.
17. It is a settled position of law that if two views are possible and the Tribunal has taken a view the same cannot be substituted in review. Same Page 59 of 62 HC-NIC Page 59 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT arguments cannot be repeated.
18. The facts by the private applicants on record show that 13 out of 58 Drivers as on 04/08/2004 belongs to members of Scheduled Caste. That is close to 23% representation as compared to 30% referred to in the O.A."
39. These observations of the tribunal is in respect of the detailed contentions raised on behalf of counsels for the parties and after tribunal's advertence to the provision of law as could be seen from the tribunal's discussion in paragraph nos.3 to 11. The unfortunate part of the matter is that even the paragraphs reproduced hereinabove, though indicate clearly that there was no clear finding recorded by the tribunal, the tribunal proceeded on confirming the decision rendered by it on 2 nd March 2006 in original application whereunder the entire notification dated 4th August 2004 had been quashed and set aside and the resultant effect was disturbing the equities in which during the pendency of the review application, the result of the examination had been operated and acted upon and majority of the members of both the sides got promotion and are working on the posts.
40. We are of the considered view that this Court need not embark upon the fact finding inquiry, as this is not the Court of the first instance. We are also of the view that looking to the observations of the Supreme Court in respect of the applicability of the reservation in the promotional post, the Court of the first instance i.e. the tribunal was required to record its findings unequivocally clear qua the cadre strength, the roster points, the seniority position and the applicability of the law. Unfortunately, in the instant case, both the decisions i.e. the decision of 2nd March 2006 in O.A. No.286 of 2005 as well as decision dated 6th September 2006 in Review Application No.8 of 2006 clearly Page 60 of 62 HC-NIC Page 60 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT indicates that the tribunal rendered its decision in absence of any clear findings qua facts and has proceeded on default of the railway administration in producing the material before it coupled with the fact that the railway authority was under obligation to produce on record (1) the correct seniority list, (2) the correct cadre strength. As the tribunal had to observe in its earlier order that the correct cadre strength of the promotional post, as it is in dispute and there is no relevant material placed by the railway administration to support their claim, we hastened to add here that even in the present proceeding also there was a question as to whether the cadre strength, as sought to be justified by the railway administration, could be said to be correct or not as there was a factum of restructuring, which was said to be an attempt to manipulate the vacancies or reckoning of the vacancies. We are therefor, do not propose to go into this aspect at this stage and remit the matters to the tribunal for deciding it afresh, that will have effect of reviving the original O.A. no.286 of 2005, in which the present petitioners of S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006 will have to be joined as party and they will have to be treated as respondents and they will have a right to place their material on record and the tribunal shall decide the same in accordance with law in light of the observations of Supreme Court mentioned hereinabove. The remand of these matters is warranted, as the tribunal being adjudicating authority in the first instance will have to be apprised of the correct vacancy position and the roster point as stated hereinabove and therefore, this remand is being made. However, during the pendency of the matters before the tribunal, when the tribunal is to here these matters, the equities created during the pendency of these matters by way of effecting promotion, shall not be disturbed till the final decision rendered by the tribunal in this proceeding. Therefore, the matters being S.C.A. Nos.20936 of 2006 with 20938 of 2006 to 20943 of 2006 Page 61 of 62 HC-NIC Page 61 of 62 Created On Wed Nov 09 00:19:03 IST 2016 C/SCA/20936/2006 CAV JUDGMENT are partly allowed and Rule made absolute to the aforesaid extent in those matters. The matter being S.C.A. No.4068 of 2007 is disposed of and Rule discharged.
(S.R.BRAHMBHATT, J.) (A.G.URAIZEE,J) Rathod...
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