Central Administrative Tribunal - Delhi
Neelam Rani Julka vs Govt. Of Nct Of Delhi & Ors. Through on 5 December, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.2434/2012 M.A.No.2017/2012 M.A.No.1535/2013 Order Reserved on: 27.09.2013 Order pronounced on 05.12.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Liladhar Ramchandani R/o A-1A/32, Street No.9 Chanakya Palance Opp. Janak Puri C-1 Opp. Janak Puri C-1 New Delhi. Krishna Kumari Nanda W/o Late Sh. Praveen Kumar R/o 83, Ganpati Apartment Gautam Nagar New Delhi. Kusum Kelly W/o Sh. Satish Kumar Kelly R/o H.No.47, 2nd Floor Gagan Vihar Delhi 51. Prem Sharma W/o Sh. Nirmal Kumar Sharma R/o Z-203, Anupam Apartment East Arjun Nagar Delhi 31. Neelam Rani Julka W/o Sh. Rajesh Kumar Julka R/o B-29A, 1st Floor Kalkaji Delhi 19. Applicants (By Advocate: Sh. M.K.Bhardwaj) Versus Govt. of NCT of Delhi & Ors. Through Chief Secretary Govt. of NCT of Delhi New Secretariat I.P.Estate New Delhi. Principal Secretary Health and Family Welfare Dept. Govt. of NCT of Delhi I.P.Estate New Delhi. Medical Supdt. GB Panth Hospital New Delhi. Respondents (By Advocate: Ms. P.K.Gupta) O R D E R By V. Ajay Kumar, Member (J):
MA No.2017/2012 for joining together is allowed.
The Delhi Nurses Union along with other individual applicants filed the present OA seeking to quash the impugned Annexures A1 and A2, dated 01.12.2012 and 27.12.2011 respectively, in effecting promotions to the post of Nursing Sister on ad hoc basis by following the rule of reservation on the ground that the same is against to the law laid down by the Honble Apex Court in the cases of M. Nagaraj & Others v. Union of India (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467.
2. The seniority list dated 02.04.2008 (Annexure A6) in the category of Nursing Sister, is also sought to be quashed, for the same reason.
3. A Constitution Bench of the Honble Supreme Court of India in M. Nagaraj & Others v. Union of India (2006) 8 SCC 212, while upholding the 77th, 81st, 82nd and 85th Constitutional amendments held as under:
The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4).
They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs and STs.
They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.
xxxxxxxxxx xxxxxxxxxxxxxxxxx .The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, 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. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
4. In Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, the Honble Apex Court held as follows:
66. The position after the decision in M. Nagaraj's case (supra) is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required.
67. The view of the High Court is based on the decision in M. Nagaraj's case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Scheduled Tribes communities and the same does not call for any interference.
5. It is the specific case of the applicants that the respondents are not bound to make reservations for SCs/STs in the matter of promotions, and however, if they wish to exercise their discretion, and make such provision, they have to collect quantifiable data showing backwardness of the class and inadequacy of the representation of that class. Even if there are compelling reasons, the respondents have to see that the reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely, as per the dicta laid down in the aforesaid Judgements. But the respondents, without undertaking any exercise as contemplated by the Honble Apex Court, as aforesaid, and without making any provision for providing reservations in promotions, effected the promotions in various Nursing Cadres, by following the rule of reservation, and further contemplating to make further promotions to higher posts.
6. The respondents vide their reply though not denied the OA averments, but submitted that after the pronouncement of the Judgements in S.Nagaraj and Suraj Bhan Meenas cases (supra), they have not received any Instructions/Guidelines or Office Memorandums/Circulars either to follow those Judgements or orders passed in compliance of the said Judgements, and hence, they have applied the rule of reservations in effecting promotions to various Nursing Cadres. It is further stated that the Department is in the process of finalizing the seniority lists of Staff Nurses and as soon as those lists are finalized, the ad hoc promotions made under the impugned Annexures would be reviewed and further appropriate action as per law would be taken. They further submit that since the impugned promotions are only of ad hoc nature and would be reviewed once the seniority lists of Staff Nurses are finalized, therefore, the interference of this Tribunal is not warranted at this stage.
7. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Ms. P.K.Gupta, the learned counsel for the respondents and also gone through the pleadings on record.
8. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
9. The contention of the respondents that the promotions were effected only on ad hoc basis and hence, they will apply the law laid down by the Honble Apex Court while making regular promotions and till then they maintain the ad hoc promotions is unacceptable, untenable and unsustainable.
10. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned promotion orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review all the promotions effected by applying rule of reservation to the categories of Nursing Sisters, Assistant Nursing Sisters, Deputy Nursing Sisters and Nursing Superintendents and re do the entire exercise of effecting promotions to the said categories, in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, draw the seniority lists in the said categories as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
11. The OA is accordingly allowed in terms of the aforesaid directions. No order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/