Central Administrative Tribunal - Chandigarh
General Welfare Association (Regd.) vs Union Of India Through Secretary To ... on 27 February, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION N0.060/01095/2015
Chandigarh, this the 27th day of February, 2017
CORAM:HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) &
HONBLE MS. RAJWANT SANDHU, MEMBER(A)
1. General Welfare Association (Regd.), Northern Railway Firozpur Division, through its Divisional President Sh. Rakesh Kapila S/o Sh. Manohar Lal, age 49 years, working as Technician Grade I in the office of Diesel Shed Ludhiana.
2. Jaspal Singh S/o Sh. Pritam Singh, working as Technician Grade-I in the office of Electric Loco Shed Ludhiana under Senior Divisional Electrical Engineer, TRS Ludhiana.
3. Rajnish Chander S/o Sh. Gian Chand working as MCM in the office of Diesel Shed Ludhiana.
.APPLICANTS
(Argued by: Mr. K.B. Sharma, Advocate for
Mr. D.R. Sharma, Advocate)
VERSUS
1. Union of India through Secretary to Govt. of India, Department of Railway, Northern Railway, Baroda House, New Delhi.
2. Divisional Railway Manager, Northern Railway, Firozpur Division, Firozpur.
3. Sr. Divisional Personnel Officer, Firozpur Division, Firozpur.
4. Chairman, Railway Board, Rail Bhawan, New Delhi.
(Argued by : Mr. Yogesh Putney, Advocate with
Mr. Sanjay Pathania, Advocate).
5. All India Scheduled Caste and Scheduled Tribes Railway Employees Association Ferozepur Division through Ram Kumar Divisional Secretary Ferozepur Division
(Argued by: None)
. RESPONDENTS
ORDER (Oral)
JUSTICE M.S. SULLAR, MEMBER (J) The challenge in this Original Application (OA), preferred by General Welfare Association (Regd.), Northern Railway, Division Firozpur & two other employees, is to the impugned letter dated 18.11.2015 (Annexure A-1), whereby, the respondents have decided to give the benefit of reservation in promotion to the Scheduled Caste / Scheduled Tribe Staff, which according to them, is arbitrary, illegal and against the law laid down by the Honble Apex Court.
2. The respondents have refuted the claim of the applicants and filed the reply stoutly denying all the allegations and grounds contained in the OA, and prayed for its dismissal.
3. As is evident from the record that during the course of preliminary hearing, the following order was passed on 9.12.2015, by a Co-ordinate Bench of this Tribunal :-
1. On the last date of hearing, notices regarding stay of operation of Annexure A-1, which had been passed contrary to the settled law, had been issued and the same were accepted by Mr. Lakhinder Bir Singh, learned Standing Counsel for the Railways. He sought and was granted time to have instructions/file pleadings.
2. Today, Mr. Lakhinder Bir Singh requests four weeks time for filing written statement. The respondents attitude towards filing reply in matters regarding stay, apparently, is non-serious.
3. Learned counsel for the applicants submits that the respondents, despite orders of the Honble Supreme Court on the issue, have passed order dated 18.11.2015 (Annexure A-1) whereby a decision has been taken to make promotion on the basis of reservation where no court case is pending. Learned counsel also submits that pending notice, the respondents have already promoted persons of certain category on the basis of reservation. The contention of learned counsel is that once the Highest Court of law has passed orders holding reservation in promotion as bad in law unless the necessary exercise, as mandated in the case of M. Nagraj & Others Vs. Union of India & Others (2006) 8 SCC 212 is not done by the Govt. of India, the action of the respondents in making promotion on the basis of reservation is illegal. Reliance in support of the contention has been placed upon judgment of the Honble Supreme Court in the case of Union of India Vs. Veerpal Singh Chauhan 1995 (7) SC231 as reiterated in the latest judgment dated 27.08.2015 in the case of S. Paneer Selvam & Others Vs. Govt. of Tamil Nadu & Others (Civil Appeal No. 6631-6632 of 2015). He requests that the respondents may be restrained from making promotion on the basis of reservation.
4. As requested, the respondents are granted four weeks time for filing written statement.
5. List on 11.01.2016.
6. In the meantime, the respondents are restrained from making promotion on the basis of reservation without following the mandate given by the Honble Supreme Court in the case of M. Nagraj (supra).
7. A copy of this order be given dasti to the learned counsel for the applicants.
4. The order was re-affirmed vide order dated 15.9.2016 by this Tribunal.
5. Aggrieved thereby, with the interim order, the respondent Union of India, filed CWP No.13001/2016. This Writ Petition and a bunch of other petitions, were decided vide orders dated January 18, 2017, rendered in main CWP No. 26026/2016, by a Division Bench of the Honble Punjab and Haryana High Court. The order reads as under :-
[2] The foremost question that arises for consideration is whether the Railways are obligated to provide Roster Point reservation to the scheduled castes/backward class candidates in the matter of promotion or in restructuring of different cadres or such promotions/restructuring exercise is required to be undertaken strictly in order of seniority irrespective of the category to which an official in the zone of consideration belongs?
[3] For the purpose of answering this question, the facts are being extracted from CWP No.15782 of 2015.
[4] Private respondent Nos.5 to 21 belong to General category. They were working as Diesel Technician Grade-I in the Diesel Locomotive Modernization Works at Patiala. Writ-petitioners are also working as Diesel Technician Grade-I in the same workshop and they belong to reserved category. The next promotional post is of Senior Technician for which an eligibility list was prepared. Since the eligibility list mostly consisted of reserved category candidates who were promoted as Diesel Technician Grade-I out of turn against roster points, the private respondents challenged the eligibility list and claimed that no reservation in promotion is permissible after the decision of Constitution Bench in M.Nagraj and others vs Union of India and others, 2006(8) SCC 212. No exercise to identify the deficiency in the representation of the reserved category employees was ever taken up by the Railways before providing reservation in promotions.
[5] The Tribunal relied upon various decisions including the one rendered by this Court in Lacchmi Narain Gupta and others vs Jarnail Singh and others in CWP No.13218 of 2009 decided on July 15, 2011 and set aside the eligibility list. It further held that promotion to the posts of Senior Technicians be made in the order of seniority ignoring the out of turn/accelerated promotions earlier granted to reserved category candidates, for the reason that the post of Senior Technician is a non-selection post and principle of seniority-cum-merit is required to be followed.
[6] In the connected cases also identical legal principle has been reiterated by the Tribunal keeping in view the facts situation in each case.
[7] It may be mentioned that against the decision of this Court in Lacchmi Narain Guptas (supra), SLP (C) No.4831 of 2012 is pending in the Honble Supreme Court. It further appears that when the SLP came up for hearing on 29.09.2016, learned Solicitor General of India made a statement before the Apex Court for the purpose of ad hoc arrangement to be made by the authorities till the matter is finally decided.
[8] With a view to give effect to the statement made by learned Solicitor General of India, Northern Railway, Ferozepur Division, has issued Circular dated 12.01.2017 observing that since for the safety aspects in train operation the promotions of staff are required to be made provisionally subject to the outcome of the final decision of the Honble Supreme Court, the Competent Authority has decided to follow the following procedures for promotions on provisional basis subject to the final outcome of the Court cases:-
1. All the promotions are to be done as per General Seniority.
2. Zone of consideration will not be extended.
3. No jumping of candidates will be allowed.
4. Seniority will not be violated in any case.
5. All the SC & ST candidates coming in the purview of General Seniority shall be considered against available Roster Points, even if they were acquiring UR points in the past.
6. Whenever, in any case if Roster Points are consumed and the number of SC and ST candidates still appears as per the zone of consideration in the General Seniority, they shall be adjusted against UR Roster Points on temporary basis to be adjusted against future SC/ST vacancies.
7. Once SC/ST Roster Points are available in future these UR points will be vacated and SC/ST candidates will be adjusted against newly available points.
8. In case there is no SC & ST candidates available in the zone of consideration but vacancies are available the vacancies shall be kept as shortfall for future adjustment. [9] It is undeniable that parties to these cases shall also be bound by the final verdict of the Honble Supreme Court and their fate shall also be decided in terms of the decision of the Honble Supreme Court even if no formal SLP/civil appeals are filed in these cases. Till the final decision comes, we find that the arrangement made by Northern Railway, Firozepur is fair, just and a workable solution.
[10] Consequently, all these writ petitions are disposed of with a direction to the Railway Authorities to provisionally implement the orders passed by the Tribunal in these cases subject to the terms and conditions contained in its above re-produced letter dated 12.01.2017 and further subject to the final decision of the Honble Supreme Court.
[11] There is no reason as to why the other Divisions of Northern Railways or the Railway Coach Factory, Kapurthala should deviate or have a different criteria to follow. Consequently, it is directed that the above stated provisional arrangement shall be followed by all the Divisions as well as Rail Coach Factory/ production units till the final decision of the Honble Supreme Court.
[12] Let the needful be done within two months.
6. Meaning thereby, the Competent Authority of the Railways has formulated a definite policy issued vide Circular dated 12.1.2017, inter-alia, undertaking that all the promotions are to be done as per the general seniority and other conditions mentioned therein. Therefore, in view of the indicated circular, the impugned letter dated 18.11.2015 (Annexure A-1) pales into insignificance and cannot legally be implemented.
7. In the light of the aforesaid reasons, since the matter has already been decided by the Punjab and Haryana High Court, so the instant OA becomes infructuous, which is hereby dismissed as such.
8. Needless to mention, the Competent Authority of the Railway will adhere to the terms and conditions of indicated policy / circular dated 12.1.2017 in case of promotion, as per the general seniority. However, the parties are left to bear their own costs.
(RAJWANT SANDHU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 27.02.2017
HC*
1
(OA No.060/01095/2015)