Central Administrative Tribunal - Madras
K. Rajagopalan And Ors. vs Union Of India (Uoi) And Ors. on 10 January, 2007
Equivalent citations: 2008(1)SLJ116(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicants in O.As. 1130, 1131J 174, 1190 and 1206/2004 and 28,35,86,277-279 and 490/2005 are working as Ticket Checking staff of southern Railway. The common reliefs prayed for by them in the above O.As. arc is follows:
(i) To declare that the 85th amendment of the Constitution of India shall not protect excess promotions given to the SC/ST category candidates in excess of the cadre strength on arising vacancies on roster point promotion.
(ii) To declare that the roster point promotees arc not entitled for protection of seniority who have been promoted in excess of cadre strength before 1.4.1997 except that it will be treated as adhoc promotions and that promoted after 1.4.1997 cannot claim protection either for seniority or for adhoc promotions.
(iii) To declare that the 85th amendment only protects the SC/ST category candidates promoted after 17.6.1995 to retain consequential seniority in the promoted grade but does not protect any excess promotions.
(iv) To issue direction to the respondents to review and readjust the seniority in all the grades of the Commercial Clerks in Trichy Division of the Southern Railway in accordance with the law laid down by the Hon'ble Supreme Court in Ajith Singh II , M.G. Badappaiutvar's case 2001 (2) SCC 666, and the order in Sathyanasan's case C.A. No. 5329/97 thereby promote the applicants retrospectively from the effective dates of their promotions over their junior SC/ST category candidates making available the resultant benefits to the applicants.
(v) Any other relief or reliefs as this Hon'ble Tribunal may deem fit and proper in the circumstances to the case.
2. The applicants in O. A.365/2005 are working as Chief Commercial Inspectors in the Southern Railway and have prayed for the following reliefs:
In view of the facts and grounds mentioned above, the applicants pray that this Hon'ble Tribunal may be pleased to direct the first respondent to revise the seniority list (1) in the cadre of Chief Commercial Inspectors (Anncxures A2 dated 16.3.2004); and (2) in the other feeder categories namely Commercial Clerks, Ticket Checking Staff, Enquiry-cum-Reservation Clerks, Ministerial Staff, Catering Staff and Law Assistants in the scale of Rs. 6,500-10,500 and (3) of integrated seniority list to determine the zone of consideration for promotion to the post of assistant Commercial Manager (Annexure A3 dated 24.9.2004) in terms of the judgment of the Supreme Court in Ajit Singh II v. State of Haryana and All India Non SC/ST Employees Association (Railway) v. V.K. Agarwal with consequential benefits.
3. The brief facts of the case are as follows:
There are five grades of Commercial Clerks namely:
1. Commercial Clerk Entry Grade
2. Senior Commercial Clerk
3. Head Commercial Clerk
4. Chief Commercial Clerk
5. Commercial Supervisor.
In the Railway administration, for the purpose of recruitment and promotion, 22.5% of the posts are reserved for the members of the SC/ST candidates. The said reservation is implemented by a 40 point roster system. According to the applicants, reserved category employees were given promotions in excess of the cadre strength by applying reservation roster on arising vacancies also. According to them, the principle of reservation will not be applicable to the restructured posts since there is no creation of additional posts involved. All promotions made from 1984 onwards are only provisional and none of the seniority lists of different grades of Commercial Clerks were finalized. The seniority list of Commercial Clerks are not made in accordance with the principles laid down by the Hon'ble Supreme Court. The SC/ST candidates promoted in excess of the cadre strength are retained in the seniority list in violation of the principles laid down by the Hon'ble Supreme Court. According to them, their non-fixation of seniority and not placing them in proper place in the seniority and promoting them from the due dates are contrary to the principles laid down by the various judicial pronouncements and illegal and have prayed for grant of the reliefs as set out above.
4. The official respondents have filed a reply statement. According to them, the O.A. is not directed against any order of the respondents. The prayer is vague and the O.A. is liable to be dismissed on that ground. The applicants are challenging the seniority list published in the year 2002 belatedly. If the applicants had any grievance against the seniority list, they should have submitted their objections within one month of publication of the said list. None of the applicants have neither challenged the seniority list nor submitted any representation against the seniority list at any time before filing this O.A. The O.A. is therefore, barred by limitation.
5. The rule of reservation in promotion is being applied for over five decades. However, the point roster system is no longer applied in Railways after the decision in R.K. Sabharwal v. State of Punjab. Consequently, with effect from 10.2.1995, the concept of reservation based on vacancy is replaced with number of posts which form the cadre strength. The cadre restructuring was done for Group 'C and 'D' in the year 1984, 1993 and 2003. According to them, reservation has to be applied while making promotions against additional posts arising due to restructuring. The principle of reservation will have to be applied in case of increase in posts on restructuring. Consequent upon passing the Constitution (85th Amendment) Act, 2001 the seniority of SC/ST employees promoted after 10.2.1995 has been protected and the ratio decided in Ajit Singh II is no longer applicable. A larger number of cases filed before this Tribunal for revision of seniority have been dismissed or disposed of in terms of the Constitution (85th Amendment) Act. Similarly protection to the promotees prior to 10.2.1995 cannot be denied as it would create an anomalous situation otherwise. The seniority list published as on 1.4.2001 is in accordance with the Rules governing the same. The rule of reservation whether based on statutory or executive orders, cannot be reopened. In the light of the judgment in Akhil Bharatya Sochit Karmachari Singh and Anr. v. Union of India JT 1996 SC 274, the Railway Board had advised all Zonal Railways that the seniority of employees promoted prior to 10.2.1995 should not be altered. They should retain the promotion as well as seniority.
6. In identical circumstances, this Tribunal in O.A. 1075/2001 held that by virtue of The Constitution (85th Amendment) Act, 2001 providing for promotion with consequential seniority, the respondents were to pass orders on that basis. The O.As. were disposed of accordingly. When the matter was taken up before the Hon'ble Supreme Court in W.P. 234/2002, the Hon'ble Supreme Court directed not to revert any of the petitioners from their existing placement without affecting their standing in the seniority list. The Hon'ble Supreme Court also directed implementation of the provisions by virtue of Article 16(4-A) of the Constitution. Since the constitutional validity of Article 16(4-A) was pending adjudication before the Hon'ble Supreme Court, the grounds raised by the applicants are not sustainable.
7. A rejoinder has been filed by the applicants. According to them, the seniority list is not challenged by them. They are only concerned with the review and readjustment of their seniority and promotions in all grades in accordance with the law laid down by the Hon'ble Supreme Court. The seniority list has individually been circulated to everybody and the same were prepared without adhering to the rules and the law laid down by the Hon'ble Supreme Court. They reiterate that the respondents applied reservation on arising vacancies and on restructuring cadre. There are excess promotion according to which SC/ST employees are occupying almost the entire number of posts. Though the constitutional amendment protects the seniority of SC/ST employees after 17.6.1995 but those promoted in excess of the quota are not protected.
8. The private respondents have filed a reply statement. According to them, the prayer in the O.A. is vague and general and not specific, the relief as such, cannot be granted. The respondents plead that inasmuch as the applicants have not chosen to challenge any of the seniority list or promotions made, it is not open to them to seek review of promotions and seniority lists. They pray for dismissal of the O.A.
9. According to applicants in O.A. 365/2005, the post of Assistant Commercial Manager is the feeder cadre for promotion to the post of Chief Commercial Inspector. There are other 7 categories of posts in the feeder cadre for promotion to the post of Assistant Commercial Manager. According to applicants, they found from the integrated seniority list of eligible staff for promotion from Group 'C to Group 'B' that officers much junior have been placed above them and all reserved candidates occupy the top seniority list due to policy of reservation. According to them, a junior reserved candidate on promotion by roster point gain seniority over his senior general candidate and that the reservation policy should not be followed in cadre restructuring.
10. The respondents in their reply in O.A. 365/2005 have stated that the instructions given by the Hon'ble Supreme Court in R.K. Sabharwal and Other connected cases are no longer valid after introduction of Article 16(4-A) by virtue of The Constitution (85th Amendment) Act, 2001 w.e.f. 17.6.1995. however, in so far as the applicability of reservation in cadre restructuring is concerned, the respondents have stated that the Railway Board had issued detailed instructions under letter dated 5.3.2001 for implementing the order of the Hon'ble Supreme Court in C.A. 1481/96 Union of India v. All India Non-ST/ST Association that reservation will not be applicable in cadre restructuring and prayed for dismissal of the O.A.
11. We have heard the learned Counsel Mr. Abraham and Mr. Eathirraj P.S. for the official respondents and Mr. P.V.S. Giridhar for the private respondents and considered the matter.
12. The questions that arise for our consideration are:
(i) whether the rule of reservation is applicable to cadre restructuring?
(ii) whether the alleged excess promotions given to SC/ST category are legally sustainable?
(iii) whether the O.As. are maintainable?
13. the above O.As. were kept pending awaiting the decision of the Hon'ble Supreme Court relating to The Constitution (85th Amendment) Act, 2001. The Hon'ble Supreme Court in M. Nagaraj v. Union of India , has upheld the constitutional amendments by which Article 16(4-A) and 16(4-B) have been inserted. However, the case of the applicant is that notwithstanding The Constitution (85th Amendment) Act, 2001, the excess promotion given to SC/ST category candidates has to be declared as illegal and there should be a review and readjustment of all grades as per the law laid down by the Hon'ble Supreme Court in Ajit Singh II . M.G. Badappal Navar case 2001 (2) SLJ 150 (SC) : 2001(2) SCC 666, and Satyanamyana's case in C.A. 5329/1997, so that the applicants can be promoted retrospectively.
14. In so far as the applicability of the rule of reservation in cadre restructuring is concerned, it has been held by the Full Bench of the Central Administrative Tribunal at Allahabad dated 10.8.2005 in O.A. 933/2004 and O.A. 774/2004 as follows:
The upgradation of the cadre as a result of restructuring and adjustment of existing staff will not be termed as promotion attracting the principles of reservation in favour of Scheduled Caste/Scheduled Tribe.
This was reiterated but clarified in O.A. 122 of 2005 dated 24.10.2005 stating that in cases of creation of additional vacancies or posts consequent on restructuring, the rule of reservation is applicable. Following the above, the question No. 1 is answered accordingly.
15. On the second question, we find that the relief sought for by the applicants in these O.As. are in the nature of general declaration and a direction to review and adjust the seniority in the cadre of Chief Commercial Inspectors and six other feeder categories of the integrated seniority list. The applicants have categorically stated in their rejoinder that the seniority list is not as such challenged by the applicants. As a matter of fact, the seniority lists published in the year 2001 and 2002 and 2004 (A2 in O.A. 365/2005) were not objected to by the applicants by filing any representation. They have attained finality. Therefore, we have to uphold the objections raised by the official respondents as well as the private respondents that the reliefs sought for by the applicants being general in nature and in the absence of specific relief, the prayer cannot be considered and granted by this Tribunal. In other words, the declaration that excess promotion given to SC/ST are illegal, cannot be accepted unless it is found, as a matter of fact, that there was excess promotion in a particular year/period and that the applicants are aggrieved by the promotions. Necessarily, the applicants should have impleaded those candidates promoted in excess, at a particular point of time and should have raised their objections within a period of limitation and thereafter should have filed the O.A. in reference to those promotees questioning that the promotions so made are beyond the percentage of reservation. The Tribunal is now being asked to have a rowing enquiry into the administrative functions of the Railways in reference to all promotions.
16. Rule 10 of the Central Administrative Tribunal (Procedure) Rules, states that an application shall be passed based on a single cause of action and the application shall set forth concisely under the distinct heads and grounds for such application as per Rule 8 of the Rules. Section 20 of the Act prohibits entertaining of an application unless the applicant had availed all the remedies available to him under the relevant service rules as to the redressal of grievances. Order 7 Rule 7 CPC states that the reliefs have to be specifically stated.
17. In this case, as we have noted earlier, the applicants have sought for a general relief to revise the seniority of various categories. This is not a public interest litigation. The Hon'ble Supreme Court in Income Tax Officer, Mangalore v. Damodar , held that in the absence of specific particulars in support of the allegation, it is not open to the Court to go into the question.
18. The Hon'ble Supreme Court in Maunath Bhanjan Municipality v. S.C. Mills , has held that by merely stating that the procedure prescribed in not followed, it is too vague a plea to justify interference in the exercise of jurisdiction by the High Court.
In the absence of pleadings as to the excess promotions and seniority, it will not be possible to consider the case of the applicants.
In Ashutosh Gupta v. State of Rajastan 2002 (3) SLR 18, the Hon'ble Supreme Court observed as follows:
Where the challenge is made to a statutory provision being discriminatory, allegations in writ petition must be specific, clear and unambiguous. There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental rights can be decided. There is always a presumption is favour of the constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the Legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience. The claim of equal protection under Article 14, therefore, is examined with the aforesaid presumption that the state Acts are reasonable and justified. If we examine the challenge to the impugned provision from the aforesaid standpoint, we have no hesitation to hold that the appellant have utterly failed to establish any materials from which grievances about the discrimination alleged can be said to have been made.
(Emphasis added) The Constitutional Bench of the Hon'ble Supreme Court in M. Nagaraj v. Union of India (supra) has held as follows:
81. The judgment in M.G. Badappanavar was mainly based on the judgment in Ajit Singh (I) which had taken the view that the departmental circular which gave consequential seniority to the "roster-point promotee", violated Articles 14 and 16 of the Constitution. In none of the above cases, was the question of the validity of the constitutional amendments involved. Ajit Singh (I), Ajit Singh (II) and M.G. Badappanavar were essentially concerned with the question of "weightage" Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and over efficiency of service....
87. After the Constitution (Seventh-seventh Amendment) Act, 1995 this Court stepped in to balance the conflicting interests. This was in Virpal Singh Chauhan in which it was held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position. According to the Government, the decisions in Virpal Singh and Ajit Singh (I) bringing in the concept of "catch up" rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade.
88. In the circumstances, Clause (4-A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that the Constitution (Eighty-fifth Amendment) Act, 2001 was an extension of Clause (4-A) of Article 16. Therefore, the Constitution (Seventy-seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-fifth Amendment) Act, 2001.
116. ...Therefore, in our view Articles 16(4-A) and 16 (4-B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court in Indra Sawhney and R.K. Sabharwal. They have nexus with Articles 17 and 46of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional amendments, therefore, do not obliterate equality.
19. In the light of the Constitutional Bench judgment in Nagaraj's case, the question whether the Constitution (85th Amendment) Act, 2001 negates the effect of the O.M. issued in implementation of the Hon'ble Supreme Court judgment in Union of India v. Virpal Singh Chauhan 1996 (1) SLJ 65 (SC) : 1995 (6) SCC 84, Ajit Singh Tanuja v. State of Punjab 1996 (2) SCC 715, and as such, the question whether the seniority list has to be reviewed and readjusted in accordance with the Ajit Singh II need not be gone into. Suffice it to say that the said Constitutional Amendments have been upheld by the Constitutional Bench and the O.M. dated 30.1.1997 has been withdrawn restoring the promotion with consequential seniority.
20. For all these reasons, the O.As. are liable to be dismissed in reference to excess promotions on the ground that the relief sought for by the applicants as such is too vague and general and cannot be granted and that the said issue is covered by the Constitution Bench decision in Nagaraj v. Union of India (supra). The O.As. are ordered accordingly with no order as to costs.