Central Administrative Tribunal - Delhi
Shri Satyapal Singh vs Delhi Jal Board on 21 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No. 313/2009 New Delhi this the 21st day of July, 2010 HONBLE SHRI SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Satyapal Singh, Bacteriologist, R/o H.No.7, Type-III, Jal Vihar, Lajpat Nagar-I, New Delhi-110024 -Applicant (By Advocate: Shri H.K. Balajee) -VERSUS- 1. Delhi Jal Board, (Govt. of NCT of Delhi) Varunalaya Phase-II, Karol Bagh, New Delhi Through its Chief Executive Officer, 2. Assistant Commissioner (T), Varunalaya Phase-II, Karol Bagh, New Delhi -Respondents (By Advocate: Shri Karunesh Tandon) O R D E R By Dr. Veena Chhotray, Member (A):
The TA No. 313/2009 has arisen out of the CWP No. 17364/2006 transferred to the Tribunal vide the Delhi High Courts order dated 27.2.2009. No counter affidavit was filed by the respondent No.2 despite opportunities before the High Court of Delhi and the right to file the same had been forfeited vide the High Courts order dated 19.9.2008.
2. The applicant appointed as Asstt. Bacteriologist in the SC reserved category in 1990 and promoted in officiating capacity as a Bacteriologist in 1997 again under a reserved category is claiming promotion to the next higher post of Asstt. Chief Water Analyst (ACWA) on grounds of adherence to Post Based Roster.
By way of relief, the TA seeks directions: (a) to promote the applicant to the post of ACWA with the date the promotion was due with all consequential benefits, including financial ones (b) payment of dues from 29.10.2004 when Shri Sharad Kumar was promoted wrongfully taking away his entitlement. (c) Demotion of Shri Sharad Kumar to his original post of Bacteriologist. Besides any further order deemed fit has also been prayed.
3. We have heard the learned counsels for the applicant, Shri H.K. Balajee and for the respondents Shri Karunesh Tandon. We have already considered the material on record carefully.
4. The brief facts of the facts are that as per the relevant Regulations, the posts of ACWA have been classified as Group B posts to be filed on the basis of selection. The prescribed methodology for filling up these posts is promotion failing which by transfer on deputation (including short-term contract) and failing both by direct recruitment. Further for purposes of promotion, the feeder categories stipulated are Chemists (80%) and Bacteriologists (20%) satisfying the requisite conditions of eligibility.
As per the RRs, no fixed number of posts was prescribed and the same was subject to variation depending upon workload. It is, however, not disputed that at the relevant time under consideration, the number of sanctioned posts was 12. Further, out of these, as per the prescribed quotas, 10 were to be filled from among Chemists and two from Bacteriologists with requisite eligibility qualifications.
5. The stand of the applicant is that in 2004 three posts of ACWA were vacant due to retirement/promotion of concerned officials. Out of these one was caused by the promotion of one Shri Ram Kishan (an SC Category candidate and a Bacteriologist). Against this post, the applicant was entitled to be promoted as he was the senior most SC candidate in the category of Bacteriologist, and thus was fulfilling both the requirement of maintaining 20% quota marked for Bacteriologist and 15% SC quota (Para 5 of the TA). However, the respondents instead promoted against this post, one Shri Sharad Kumar, who though a Bacteriologist was a general category candidate. Since as per the principles of Post Based Roster, the roster is to be operated on the basis of replacement and not as a running account posting a General category candidate against an SC vacancy was in contravention of law as prescribed on the subject by the Apex Court as well as the follow up instructions of GOI (Paras 6 and 11 of the TA) It is also averred in para 8 of the TA that none has been promoted to the post of ACWA after Shri Ram Kishan in 1997 under the reserved SC category and other promotions have been according to seniority basis and thus on their own merit.
The impugned actions of the respondents by non-grant of promotion to the applicant and instead granting it to one General category candidate Shri Sharad Kumar have been challenged as being in contravention of the principles of Post Based Register and transgression of Chemists in the cadre of Bacteriologists.
The applicant had made a no. of representations to the authorities, including serving a legal notice but to no avail. The efforts on the part of the applicant to redress his grievances by representation before the National Commission for Scheduled Castes yielded no results either. An earlier OA filed before the Tribunal (No. 2877/95) was disposed vide the Tribunals order dated 18.9.2006 dismissing it as withdrawn with liberty to file it before the court of competent jurisdiction.
6. Before proceeding to the respondents stand, it would be pertinent to note at this point that as per the facts before us, the applicants promotion as a Bacteriologist was only in officiating capacity (Annex. P-2). Similarly the claim for promotion to the higher post of ACWA in the consequential vacancy of Shri Ram Kishan as CWA is also on ad hoc promotion of the latter (Annex. P5 colly.). Likewise the impugned order dated 29.10.2004, by which Shri Sharad Kumar (This is under challenge in the TA) was promoted along with others was also in ad hoc capacity (Annex. P-9).
7. The stand of the respondents with regard to claims of the applicant is found to be crystallized in their response vide the letter dated 18.10.2004, to the legal notice served on behalf of the applicant (Annex.P-11). The same is also reiterated in their reply dated 13.11.2004 to the NCSC when the matter was represented by the applicant before the National Commission for Scheduled Castes. This was also the stand taken by the respondents in the context of the earlier OA before the Tribunal (Annex. P-13).
It was stated that the demand of the applicant could not be acceded to at that stage due to non-availability of a vacant SC post of ACWA. Further the respondents had maintained that as per the Post Based Roster, out of the 12 sanctioned posts of ACWA only one post fell on the roster point for SC (No.7). However, as against one reserved post of SC as 5 SC category persons (had been working as ACWA (including 3 working as CWA on ad hoc basis) hence there was an excess representation of SC category candidates. This was stated to be the position even counting 3 among these as having been promoted against UR posts as claimed by the applicant.
Further, the respondents stand was that even though as per the RRs, the posts of ACWA were to be filled from among the feeder categories of Chemists (80%) and Bacteriologists (20%) no separate seniority lists of these two categories for promotion to ACWA had been maintained. This contention, however, does not seem corroborated by the detailed averments made before us.
8. This contention, however, has been strongly rebutted by the applicant who maintained that of these claimed 5, only two persons had been given the benefit of SC reservation and the rest three were on their own merit and thus could not be counted against the reserved quota (Para 8 of the TA). In particular has been highlighted the promotion of one Shri Pritam Singh (from Chemist stream), which as the respondents would claim in their CA, was against SC reserved category. Para 8 of the CA makes the following averment:
----After July 1997 one post earmarked for SC candidate was filled in by Sh. Pritam Singh S/o Sh. Lal Chand as per the post based roster Both in the Rejoinder as also in the oral submissions, the learned counsel for the applicant would rebut the contention of Shri Pritam Singhs promotion being as an SC category candidate. The fact that the said Pritam Singh though belonging to SC category had been promoted on officiating basis as ACWA, on the basis of his seniority is borne out by the DPC minutes dated 6.9.2000 as per the records produced before us. [P-434/C. File No.DJB/AC(T)/F-220/2002).
9. A fair consideration for promotion as per Rules and Govt. policies has been held by the Apex Court as the Fundamental Right of a public employee [S.B. Bhattacharjee Vs. S.D. Mazumdar & Ors. 2008 (1) SCC (L&S) 21]. Again since the Constitution embodies special provisions with regard to the weaker sections of the society, the foremost among which are those regarding special rights and concessions under public employment and the law with regard to these has been interpreted and laid down by the Apex Court of the country. Hence the claims in the present OA need to be considered in the context of the relevant RR and the law as laid down by the Apex Court regarding operation of reservation rosters in public employment and the relevant executive instructions.
10. Along with the OA has been enclosed a final seniority list of Bacteriologists dated 9.10.2003 (Annex. P-4). This shows Shri Sharad Kumar Sharma, whose promotion has been challenged in the OA dt. SI No.2 with a date of promotion 13.4.87, and the applicant dt. SI. No.6 with the date of promotion as 19.3.97. Out of this total list of 7 persons, the applicant is at the last but one in the bottom rung, in the cadre of Bacteriologists. Besides, there is a separate seniority list of Chemists for which 80% of the promotion quota has been earmarked. Hence this seniority list bears out the contention of the respondents that the applicant was not entitled for promotion as there were many others senior to him even in the Bacteriologists stream. Hence in the ordinary course the applicants claim for promotion could not be found tenable. However, even as per this seniority list the applicant has been shown as the only SC candidate. Thus the claims in the TA need to be viewed in the context of the policy regarding reservations and the RRs.
11. The policy regarding the modalities for reservations for employment got significantly changed in the wake of the judgments of the Constitution Bench of the Apex Court in R.K. Sabharwal V. State of Punjab as well as J.C. Mallik V. Ministry of Railways. Whereas earlier vacancy based rosters, operational as running accounts had been prescribed in order to implement Govt.s policy relating to reservation of jobs for SC/ST/OBC, the Apex Court ruled that reservation of jobs for backward classes should apply to posts and not to vacancies. The Honble Apex Court further held that the vacancy based rosters can operate only till such time as the representation of persons belonging to the reserved categories in a cadre, reached the prescribed percentage of reservation. Thereafter, the rosters were to operate in the vacancies released on various counts on replacement places i.e. by appointing persons from the same category. This was, however, subject to certain stipulations and guiding principles which subsequently got incorporated in the DOP&T OM No.36012/96-Esstt. (Res.) dated 2.7.1997 (Annex. P-7).
The main principles as relevant for the present case may be crystallized as follows:-
(a) Cadre for the purposes of a roster was to mean a particular grade and to comprise the number of posts to be filled by a particular mode of recruitment in terms of applicable recruitment rules. Thus, the post based roster would be applicable to the cadre of ACWA and the fact that the prescribed methodology of recruitment in the first option is promotion to be filled from among the feeder categories of Chemists (80%) and Bacteriologists (20%), the same would also need to be reflected in reservations.
(b) The number of posts in the roster is to be equal to the number of posts and corresponding to the increase or decrease in the number of posts, the rosters also will be accordingly expanded or subtracted. As mentioned above in Para 8, as per the RR, the no. of posts in the cadre of ACWA is not fixed and is said to be dependent as per the work requirement. As the records reveal, this strength has been varying at different points of time, though has not exceeded the total optimum limit 13 for which a different model roster has been prescribed.
As per the guidelines, small cadres are to be handled differently with grouping of reservation of posts for different categories, if possible. Besides the model roster prescribed is different in such cases. As per Annex. 7.6 annexed with this OM, the Model Roster for Promotion for Small Cadres when the cadre has 13 or less posts prescribed Point 7 as reserved for SC with the following details:-
ANNEXURE 7.6 Model Roster for Promotions when the cadre has 13 or less posts:
REPLACMENT NO.
Cadre Strength Initial Recruitment 1st 2nd 3rd 4th 5TH 6th 7th 8th 9th 10th 11th 12th 13th *** *** *** *** *** *** *** *** *** *** *** *** *** *** ***
7. SC UR UR UR UR UR UR ST *** *** *** *** *** *** *** *** *** Note: (1) **** (2) All the posts of a cadre are to be earmarked for the categories shown under column Initial Appointment. While initial filling up will be by the earmarked category, the replacement against any of the post in the cadre shall be by rotation as shown horizontally against the last post of the cadre.
(3) The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% representation of reserved category.
(c) The fundamental principles under which the roster operates are that at no time will it exceed the prescribed reservation limit for that particular category or the overall capping of 50%. This would mean that since in this particular case at the relevant point of time under the prescribed roster only one post could be for SC and that too in accordance with the pattern prescribed has to be filled from the categories as per the model register, there could not be promotions in excess.
(d) While the vacancy based register was to be closed as on 1.7.97 and the post based roster to be recast from 1.8.97 there were specific instructions regarding the initial operation of the roster taking into account the posts occupied by different category candidates. Further, it was provided that excess/shortages if any towards reserved quota were to be adjusted against vacancies.
(e) As per the decision of the Apex Court where the reserved category candidates fell under the prescribed zone of consideration and were promoted on their own merit, such promotions were not to be counted towards reservation quota. This point was incorporated in the DOPT OM of 2.7.1997 and further reiterated in subsequent OMs dated 11.7.2002 and 25.5.2003.
(f) The methodology of promotion under the RRs has been prescribed as selection. As per the prescribed instructions, there are different procedures in case of promotion through LDCE; selection and seniority subject to fitness; in promotion by selection in case of 1 vacancy while the normal zone of consideration is 5, in case of non-availability of sufficient no. of SC/ST officers, the consideration zone can be extended five times.
(g) Further while operating the actual number of vacancies reserved for SC/ST in any recruitment year will be the no. of SC/ST points remaining vacant at the time of recruitment.
The fact that on several occasions, the promotions were not on regular basis but ad hoc or officiating would not affect the applicability of the reservation roster as the incumbents got the benefit of higher pay scales and the same continued for a long period.
12.1 The Tribunal had on 27.4.2010 directed the official respondents to provide certain additional information pertaining to the position prevailing at the time of initial operation of the post based roster and subsequent to its commencement, upto the year 2004-05. In response, the learned counsel for the respondents has made available copy of a document dated 11.6.2010 with enclosures from the Respondents addressed to the Counsel. Despite several adjournments granted a formal affidavit has not been filed. We do not think it would be in the interest of justice to prolong this matter any further.
12.2 The broad points that emerged from a perusal of the aforesaid document along with the averments in the TA are that -
As per the respondents at the time of initial commencement of the post based roster, out of the total 9 sanctioned posts of ACWA, promotions on regular/ad hoc basis had been granted to 8 officers. Among these there were 3 SC category officers as per the following details:-
Name with particulars Date of promotion
i)Shri Bhagwat Ram Against SC 27.03.89
point No.8 as per vacancy based (Regular)
roster
ii) Shri Dhani Ram On the basis 17.02.95
of own merit/seniority (Regular)
iii) Shri Ram Kishan against SC 8.12.95
point no.14 as per vacancy based (Regular) roster.
As per the respondents, of the 3 SC Officers promoted, serial nos (i) and (iii) were against the respective roster points. Further there was no back-log of SC vacancies as per the vacancy based roster.
After the commencement of the post based roster from the year 1997-98, the number of sanctioned posts continued to be 9 till the year 2001-2002. From the year 2002-03 onwards till 2004-05 (with which the claims in the OA are concerned) it was increased to 12. Further as per the post based roster, the reservation point for SC falls at point no. 7. It is stated by the respondents that after the commencement of the post based roster, two persons i.e. S/Shri Dhani Ram and Pitam Singh, both belonging to SC category were given promotion, however, on the basis of their own merit/seniority. As regards the claims in the TA, the respondents consistent stand is that no SC candidate could be promoted after the introduction of the post based roster on the SC points as already more persons of SC category were occupying such posts. This is corroborated from the several minutes of the DPCs enclosed along with this document. As regards maintaining an overall balance between the feeder grade of Chemists and Bacteriologists in the prescribed quota of 80:20, the respondents have reiterated about such a balance being maintained.
The applicant before us is aggrieved that in the year 2004 while promoting officials against 3 posts of ACWA, which included one vacancy having been caused by the promotion of Shri Ram Kishan (SC) (Bacteriologist), the claim of the applicant should have been considered since he was the only SC candidate in that stream. As mentioned above, only two persons, S/Shri Bhagwat Ram and Ram Kishan had been promoted as ACWA against SC quota, which was before the commencement of the post based roster. After the post based roster was implemented, no SC candidates are said to have been promoted giving them such benefits. It is further revealed from a statement enclosed along with this additional document submitted by the respondents that Shri Bhagat Ram (Chemist) as well as Shri Ram Kishan (Bacteriologist) both had been promoted as CWA the latter on ad hoc basis. Even though the dates of their promotions as such are not revealed from this paper, a perusal of the DPC minutes held on 15.9.2004 seems to reinforce the fact that as on the date of the meeting, the SC quota posts being occupied by these candidates had fallen vacant subsequent to their promotion. The following extracts from the minutes are reproduced as hereunder:
The Screening Committee was informed that there are 12 sanctioned posts of ACWA in the pay scale of Rs.6500-1-,500 in Delhi Jal Board. 06 posts are filled in on regular basis and 3 on COC basis. 03 posts are lying vacant. Out of 06 regular ACWAs, 03 are holding the higher post of Chief Water Analyst on ad-hoc basis. Thus at present 06 posts are available for ad-hoc promotion. By way of inference it may be understood that of the 3 regular ACWAs who were holding the higher post of Chief Water Analyst on ad-hoc basis included the post of Shri Ram Kishan also which was against the SC quota.
While considering the issue of reservation, the following view was taken:-
The provision of reservation is applicable for SC/ST in this case. As per post based roster, 01 SC and 01 ST points are reserved, whereas there are already 02 officials belonging to SC category working as ACWA. No ST candidate is working as ACWA as there is no ST candidate in the feeder grade of Chemists/Bacteriologists. However, we have to keep 01 post reserved for ST candidate vacant. As such, presently 02 posts are available for promotion one from the category of Chemist and one from Bacteriologist. Thus, the ground for non-promotion of a SC category Officer against the SC roster point was stated to be the working of existing two officials belonging to SC category as ACWA. Given the aforesaid factual matrix recounted in para 12 (a), (c) & (d) above, this stand does not seem to be consistent with the own averments of the respondents. It also gives rise to a legitimate impression that while recounting such figures the respondents seem to be taking into account the SC category officials who had been promoted on their own merit/seniority, which evidently is contrary to the rules and instructions on the subject.
Because of these reasons from the Seniority List of Bacteriologists, one Shri Sharat Kumar Sinha, who was the senior-most in that stream had been recommended for promotion.
(d) It is not disputed that among the Bacteriologists, the applicant was the sole SC candidate as per the final seniority list of 2003 of the Bacteriologists (Annexure P/4). However, despite that his case had been overlooked and instead a general category candidate had been promoted.
Considering the model roster prescribed for promotion for small cadres, the initial recruitment against the roster point No.7 has to be from the SC category. As it appears at the time of such consideration and after the operation of post based roster, owing to the promotion of the existing SC candidates, S/Shri Bhagwat Ram and Ram Kishan, a vacuum had been created and by way of substitution, no SC candidate had been promoted.
13. In view of the foregoing, we find the present case as appropriate for reconsideration in the light of relevant instructions and judicial rulings on the subject. The OA is, therefore, disposed of by directing the respondents to reconsider the claims of the applicant made in this TA by a speaking and reasoned order. In the event of the same adversely affecting any person, he should be suitably put to notice and an opportunity to present his case in accordance with the principles of natural justice be given before passing of the final orders by the respondents. This order is to be passed within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
/pkr/