Central Administrative Tribunal - Chandigarh
Monika Kalia vs Director Health Services Ut on 10 February, 2023
1- O.A. No. 410/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/00410/2020
Chandigarh, this the 10th day of February 2023
(Reserved On: 12.01.2023)
CORAM: HON'BLE SH. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE SMT. RASHMI SAXENA SAHNI, MEMBER (A)
1. Monika Kalia w/o Shri Arvind Kalia, Aged 37 years, working as
Junior Assistant O/o Director Health and Family Welfare, Chandigarh
Administration, Government Multi Specialty Hospital, Sector-16,
Chandigarh R/o House No. 2535, First Floor, BSNL Telehos Society,
Sector 50-C, Chandigarh, Pin-160047.
2. Taruna w/o Jagdeep Kumar, Aged 33 years, working as Junior
Assistant O/o Director Health and Family Welfare, Chandigarh
Administration, Government Multi Specialty Hospital, Sector-16,
Chandigarh R/o House No. 1377-B, Sector 15 B, Chandigarh, Pin
160015.
....Applicants
(By Advocate: Sh. Rohit Seth)
Versus
1. Union of India through Secretary to Govt of India, Ministry of
Health and Family Welfare, New Delhi. 110001.
2. Chandigarh Administration, Department of Health, U.T.
Secretariat, Sector 9, Chandigarh through its Secretary Health.160009.
3. Director Health and Family Welfare, Chandigarh Administration,
Government Multi Specialty Hospital, Sector-16, Chandigarh. 160016.
4. Nishu D/o Shri Joga Singh working as Clerk O/o Director Health
and Family Welfare, Chandigarh Administration, Government Multi
Specialty Hospital, Sector-16, Chandigarh, R/o # 3615, Maloya
Chandigarh, Pin-160025
... .Respondents
(By Advocate: Sh. Rajesh Punj)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
2- O.A. No. 410/2020
1. The applicants have jointly filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985 with a prayer to quash the action of respondents in resorting to reservation in promotion while convening DPC for promotion to the post of Senior Assistant. They have sought issuance of a direction to respondents to consider and make promotions to the post of Senior Assistant as per Recruitment Rules of 2019 without resorting to reservation and to promote the applicants as Senior Assistant from due date with all the consequential benefits.
2. The factual matrix of the case is that the applicant No.1 joined the service of the respondent department on 20.08.2008 pursuant to her appointment as Clerk vide order dated 18.08.2008. She completed her probation w.e.f. 20.08.2010 vide order dated 03.12.2010 (Annexure A-1). She was granted the benefit of 1st ACP in Scale of 10,300-34,800+ Grade pay of Rs. 3200/- w.e.f. 20.08.2012 vide order dated 26.07.2017. Further vide order dated 29.03.2018 she was placed in pay scale of 10,300- 34,800+ grade pay of Rs. 3600 as Junior Assistant and lastly she was placed in pay scale of 10,300-34,800/- with Grade pay 3600/- w.e.f. 20.08.2017 vide order dated 27.09.2018.
3. The Applicant no.2 joined the service of the respondent department on 15.02.2011 pursuant to her appointment as Clerk vide order dated 10.02.2011 and she successfully completed her probation vide order dated 21.02.2013 w.e.f. 14.02.2013. She was further placed in pay scale of 10,300-34,800+ grade pay of Rs. 3600 as Junior Assistant w.e.f. 02.04.2019 vide order dated 24.04.2020 (Annexure A-3). In the seniority list of Junior Assistants/Clerks, circulated vide letter dated 25.07.2019 (Annexure A-4), the applicant no.1 stands at Sr. No.1, the 3- O.A. No. 410/2020 applicant No.2 at Sr. No.2 and Respondent No.4 stands at Sr. No.4. The further promotion of applicants is to the post of Senior Assistant which is governed by recruitment rules dated 23.09.2019 namely Chandigarh Administration, Group ‗B' (Ministerial) (Superintendent Grade-II and Senior Assistant) Common Recruitment Rules, 2019 (Annexure A-5). Both the applicants are eligible to be considered and promoted as Senior Assistant being in the zone of consideration, as per Rules. The applicants apprehended that the official respondents may resort to reservation in promotion to the post of Senior Assistant, therefore, they applicant no. 1 submitted a representation dated 02.06.2020 (Annexure A-6). She again submitted a detailed representation dated 08.06.2020 (Annexure A-7) highlighting that respondents cannot resort to reservation in promotion in terms of settled law while referring to the case law on the subject.
4. The applicant no.1 from the inspection of the file relating to case of promotion, found that as per the office record, initially the file was moved on 27.04.2020 for processing the case of applicants for consideration and promotion to the post of Senior Assistant and the DPC was scheduled for 02.06.2020, but on the basis of noting dated 03.06.2020 endorsed by DHS&FW dated 16.06.2020 and noting dated 18.06.2020 with regard to grant of vigilance clearance to respondent no. 4, it was decided to proceed with the DPC for promotion to the sole post of Senior Assistant by resorting to reservation in promotion. It has been pleaded that the respondents are likely to convene DPC for making promotion to the sole post of Senior Assistant on any day.
5. The applicants have challenged the action of respondents in resorting to reservation in making promotion to the post of Senior Assistant on the ground that the same is in violation of law laid down in 4- O.A. No. 410/2020 the case of M. Nagraj Vs. Union of India etc. 2007(4) SCT, 664 as the respondents are going ahead with the process of promotion giving benefit of reservation, without collecting data regarding the inadequacy of representation of Scheduled Castes and Scheduled Tribes in state services, as per the mandate given in the aforesaid judgment. Reliance has also been placed on a judgment of a Larger Bench of the Hon'ble Supreme Court in the case of Jarnail Singh and ors Vs. Lachhmi Narain Gupta (SLP (C) No.30621 of 2018 decided on 26.09.2018) and the latest judgment dated 05.02.2020 (Annexure A-9) by Hon'ble High Court in case of Jai Karna & Others Vs. Union of India & Others and Sanjeev Kumar and Others Vs. Union of India & Others (CWP No. 10431 of 2017 and CWP No. 10434 of 2017). The Judgment dated 01.08. 2014 of Hon'ble High Court of Punjab and Haryana in the case of HC Balwant Singh Vs. Union of India and Others and order dated 03.07.2014 of this Tribunal in the case of Satya Parkash Vs. Union of India & others (O.A. No. 1051/CH/2013) have also been relied upon by the learned counsel for the applicants in support of his argument that the action of respondents is illegal and in direct violation of settled law by the Court of law. It has been submitted that Executive cannot ipse dixit interfere in the arena settled by judicial orders as held in case of Anil Ratan Sarkar v/s State of West Bengal 2001 (5) SCC 327.
6. The respondents no. 2 and 3 have filed short reply stating therein, that the Chandigarh Administration, Department of Personnel has already adopted the instruction of Government of India issued vide letter dated 02.07.1997 (Annexure R-1) regarding the implementation of Roaster Register in respect of Government employees, follows the said instructions while promoting the incumbents. It has been further 5- O.A. No. 410/2020 submitted that the Health Department has followed the instructions of Department of Personnel and Training, Chandigarh Administration for promotion in reservation and a clarification on the issue has been sought from the Department of Personnel and Training, Chandigarh Administration vide office Memo dated 07.08.2020 (Annexure R-2).
7. A counter to the short reply has been filed by the applicant stating that the Office Memorandum dated 02.07.1997, relied upon by the respondents, has already been quashed by the Hon'ble High Court of Punjab and Haryana in the case of Lachhmi Narain Gupta (supra)(CWP NO. 13218/2009). It has been reiterated that the issue of reservation in promotion has been settled by Judicial Pronouncements and as such the Executives cannot embark upon it to reach any other conclusion.
8. We have gone through the pleadings, perused the cited case-law and considered arguments learned counsel for both sides.
9. The short controversy involved in the matter is as to whether the respondents can apply reservation in promotion on the basis of OM dated 02.07.1997 The applicants are apprehending that the respondents are resorting to reservation while convening a DPC for promotion to the post of Senior Assistant in the department of Health and Family Welfare, Chandigarh Administration, Chandigarh. From the perusal of Annexure A- 8, it is evident that the name of applicant no. 1 was found to be fit for consideration for promotion to the post of Senior Assistant being senior most Junior Assistant. However, the same was kept pending due to Covid
-19 pandemic and the DPC was fixed on 2nd June, 2020. Further, it is seen that the department has also sought vigilance clearance and special report in respect of Respondent No. 4 for consideration for promotion to the post of Senior Assistant as per roster register vetted by Social Welfare 6- O.A. No. 410/2020 Department as the post goes to the SC candidate being 75 th point of roster on the basis of selection cum seniority.
10. We have gone through the judgments and O.M. cited by the applicant as well as by the respondents and considered the arguments of both the sides. The similar issue was adjudicated by this Tribunal vide order dated 20.03.2017, whereby the O.A. filed by respondent no. 7 to 10 (belonging to General category) had been allowed and promotion orders of the petitioners (belonging to SC category) have been quashed. The said order of the Tribunal was challenged by way of C.W.P. No. 10431/2017 (O&M) titled Jai Karan & Others Vs. Union of India & Others. The Hon'ble High Court vide order dated 05.02.2020 dismissed the petition and observed as under:-
―Hon'ble Supreme Court in M. Nagraj and Ors Vs. Union of India and Ors (2006) 8 SCC 212 has observed that the State is not bound to make reservation for SC/ST in matter of promotions and if they wish to exercise their discretion, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. Thus, the requirement of collecting quantifiable data with regard to backwardness, inadequacy of representation and keeping in mind the overall efficiency of the administration as a pre-condition for making a provision for reservation in promotion with consequential seniority for the Scheduled Castes and Scheduled Tribes. A recent judgment passed by Constitution Bench of the Hon'ble Supreme Court in Jarnail Singh and Others Vs. Lachhmi Narain Gupta and others AIR has upheld the decision rendered in the case of M. Nagraj's (supra) to the extent of the requirements that the State had to collect quantifiable data showing adequate representation of the Scheduled castes and the Scheduled Tribes in the service and over all administrative efficiency.
Keeping in view the peculiar facts and circumstances of the case, we are of the considered opinion that the judgment of learned Tribunal does not suffer from any patent illegality or perversity. The findings of the Tribunal are well reasoned and in consonance with the various decisions of the Hon'ble Supreme Court. No question of law has been found involved in the cases in hand. The ratio of the judgment rendered in the case of M. Nagraj (supra) showing adequate representation of the Scheduled Castes and the Scheduled Tribes in the service and over all administrative efficiency before extending the benefit of reservation in promotions has been upheld by the later Constitution Bench in the case of Jarnail Singh (supra). Admittedly no such exercise was undertaken before granting benefit of reservation in promotion to the rank of Senior Assistants to the petitioners, thereby prejudicing the better claim of the seniors like the private respondent nos. 7 to 10 belonging to the General Category in the rank of Clerks/Junior Assistants.‖
11. The respondents, by way of short reply have submitted that the Chandigarh Administration has adopted the instructions of Government of 7- O.A. No. 410/2020 India vide letter dated 02.07.1997 regarding the implementation of roster register in respect of government employees and follows the said instructions while promoting the incumbents. It has further been pleaded that the clarification from the Department of Personnel and Training, Chandigarh Administration has been sought vide memo dated 07.08.2020 as to whether the case of the applicant herein can be considered on the basis of judgment of Hon'ble Supreme Court of India. It is noteworthy to mention here that in respect of said O.M. dated 02.07.1997, it has been held by the Hon'ble High Court in the CWP No. 13218/2019 (Lachhmi Narain Gupta's case) vide Judgment dated 15.07.2011 that ― the net result is that no reservation in promotion could be made in pursuance to office memorandum dated 2.7.1997. We are not dealing with many other contentions raised by the learned counsel for the petitioners for the reasons that the core issue going to the roots of the matter has been determined in their favour and such a necessity is obviated." The said Judgment dated 15.07.2011 of the Hon'ble High Court was challenged by way of SLP No. 30621/2011 before the Hon'ble Supreme Court of India in the case titled Jarnail Singh & Others Vs. Lachhmi Narain. The Constitution Bench of the Hon'ble Supreme Court vide order dated 26.09.2018 has disposed of the bunch of SLPs including SLP (C) NO. 30621 of 2011 (Jarnail Singh's case) and observed as under:-
―The learned Attorney General also requested us to lay down that the proportion of Scheduled Castes and Scheduled Tribes to the population of India should be taken to be the test for determining whether they are adequately represented in promotional posts for the purpose of Article 16 (4- A). He complained that Nagaraj (supra) ought to have stated this, but has said nothing on this aspect. According to us, Nagaraj (supra) has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made. As has been pointed out by B.P. Jeevan Reddy, J.'s judgment in Indra Sawhney (1) (supra), there may be certain posts right at the top, where 8- O.A. No. 410/2020 reservation is impermissible altogether. For this reason, we make it clear that Article 16 (4-A) has been couched in language which would leave it to the States to determine adequate representation depending upon the promotional post that is in question. For this purpose, the contrast of Article 16 (4-A) and 16 (4-B) with Article 330 of the Constitution is important. Article 330 reads as follows:
―330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People.--
(1) Seats shall be reserved in the House of the People for--
(a) the Scheduled Castes;
(b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and]
(c) the Scheduled Tribes in the autonomous districts of Assam.
(2) The number of seats reserved in any State or Union territory for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State or Union territory in the House of the People as the population of the Scheduled Castes in the State or Union territory or of the Scheduled Tribes in the State or Union territory or part of the State or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union territory.
(3) Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the total population of the State.
Explanation.--In this article and in Article 332, the expression ―population‖ means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the 2001 census.
It can be seen that when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is mandated by the Constitution. The difference in language between this provision and 16 (4-A) is important, and we decline the invitation of the learned Attorney General to say any more in this behalf.
21. Thus, we conclude that the judgment in Nagaraj (supra) does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-
Judge Bench in Indra Sawhney (1) (supra) is held to be invalid to this extent.‖
12. No other grounds have been taken by the respondents to counter the claim of the applicants. Further, recently the DoPT, Government of India, pursuant to the Judgment of Hon'ble Supreme Court in Jarnail 9- O.A. No. 410/2020 Singh's case (supra), vide OM dated 12.04.2022 has issued certain instructions /procedure to be followed prior to effecting reservation in the matter of promotions by all the Ministries/departments of the Central Government, PSUs for adherence and strict compliance.
13. In view of the law settled by the Hon'ble Supreme Court and DoPT OM dated 12.4.2022 the respondents cannot be allowed to make promotion to the post of Senior Assistant on the basis of O.M. dated 02.07.1997. The respondents are directed to consider and decide the representations dated 02.06.2020 and 05.06.2020 of the applicant within a period of three months from the date of pronouncement of this order.
14. The Original Application is allowed in view of the above terms.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA)
MEMBER (A) MEMBER (J)
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