Central Administrative Tribunal - Allahabad
Prem Chand S/O Sri Samharu Rak Bhar vs Union Of India Through Secretary ... on 30 November, 2011
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD THIS THE 30th DAY OF November 2011 HONBLE MR. JUSTICE S. C. SHARMA, MEMBER (J) HONBLE MR. SHASHI PRAKASH, MEMBER (A) ORIGINAL APPLICATION NO. 138 OF 2008 (U/S 19, Administrative Tribunal Act, 1985) 1. Prem Chand S/o Sri Samharu Rak Bhar, r/o Village-Putari Post Pyasi, District Deoria, at present residing at Q-No-EL-26 D Post Bhatani Applicant V E R S U S 1. Union of India through Secretary Ministry of Railways Baroda House, New Delhi. 2. Divisional Rail Manager (Personnel), N.E. Railway, Division Varanasi. 3. General Manager, N.E.R., Gorakhpur. 4. Divisional Rail Manager, N.E.R., Varanasi. 5. Uttam Prasad, S/o Ram Dhari, Carriage Technician Grade-II Railway Station Bhatni Post Bhatni, District Deoria. Permanent address, Vill-Khem Chapra, Post-Parariya Chhipari Singh Distt.-Deoria. ..Respondents Present for the Applicant: Sri Anant Vijay. Present for the Respondents: Sri P. N. Rai O R D E R
Instant O.A. has been instituted for following reliefs:-
(I). That by means of decree order or direction Honble Court may graciously be pleased to set aside the list of finally selected candidates dt.9.4.2007 issued by respondent No.-2 so far as it relates to the selection of respondent No.-5.
(II). That by means of decree order or direction, honble court may graciously be pleased to direct the respondent No.2 to promote the applicant on the post of J.E.-II in the scale of Rs.5000-8000/- in the concerned department.
(III). Issue any decree order or direction which this Honble Court may deem fit and proper in the facts and circumstances of the case.
(IV). Award cost of the petition in favour of the petitioner.
2. The facts of the case in nutshell are as follows:-
It has been alleged by the applicant that he was posted on the post of Carriage Technician Grade-I at Depot Bhatni, district Deoria and thereafter, on 26th May,1995 promoted on the post of Carriage Fitter Grade-II in pay scale of Rs.1200-1800/- and was promoted at Railway Station Chapra. Respondent No.5 was promoted on the post of Carriage Fitter Grade-II on 05th April, 1997 in the pay sale of 1200-1800/- and was posted at Railway Station Mau District Ballia. On 03rd June, 2004 respondent No.2 issued a promotion list of Carriage Tech. Grade-I in the pay scale of Rs.4,500-7,000/- and in that list the applicant placed at Sl. No.46 junior to the respondent No.5 who was illegally placed at Sl. No.37. The applicant along-with other employees were permitted to participate in the departmental examination of J.E.-II in the scale of Rs.5,000-8,000/- as there was vacancy of 6 posts i.e. 4 General one S.C. and one S.T.. The result of the departmental examination was declared on 20th March, 2007 by the respondents in which eight persons were shown successful. On 09th May, 2007 applicant moved an application objecting the placement of respondent No.5 above the applicant and it has been alleged that respondent No.5 is junior to the applicant and he has wrongly been placed. Respondent No.2 issued an office order dated 02nd August, 2007 correcting the seniority list and placing the applicant above the respondent no.5 and treating the applicant as senior. A list of successful candidates was issued on 09th April, 2007 without considering the seniority list. Applicant raised objection against the entire select list on this ground that respondents ignored the seniority list and allowed the name of respondent No.5 in the list of selected persons. Respondent No.5 has illegally been selected against the reserved category of S.C. and as per seniority the respondent No.5 is to be placed below the applicant as per seniority list and even if Subachan Ram would have been selected against S.C. seat then the applicant would have been entitled to be selected against general seat, but with the malafide intention the respondents placed the name of the applicant at Sl. No.7 Rather than at Sl. No.6 so that he may not be selected against six vacant post. Respondents failed to consider the departmental promotion on the basis of suitability-cum-seniority and the respondents acted against the seniority list in order to select respondent No.5 and as the respondents are not paying any heed to it, hence the O.A.
3. Respondents contested the case and filed Counter Reply and denied from the allegations made in the O.A.. It has further been alleged that the promotion order issued on 03rd April, 2005, the seniority of the applicant wrongly shown and this mistake was accordingly rectified vide order dated 02nd August, 2007 and the name of the applicant was placed at Sl.130 and that of Sri Uttam Prasad at Sl. No.134. Further alleged that there were six posts of J.E.-II out of which one post was reserved for S.C. and one for S.T. while remaining 04 posts for general category. On declaration of result of examination dated 09th April, 2007, persons from Sl. No.01 to 04 who were senior to the applicant were placed under general category while persons placed at Sl. No.5 and 6 were placed against the S.C. and S.T. category respectively. The applicant comes under general category. The persons promoted against the reserved category are much senior to the applicant and as far as Sri Uttam Prasad (respondent No.5) is concerned his name has been included in the panel under reservation quota. The seniority of Sri Uttam Prasad (respondent No.5) after modification has been fixed and he has been placed below the applicant. Sri Uttam Prasad (respondent No.5) was promoted under S.C. quota while the applicant was accorded promotion under general category on being declared successful. The selection on the post of J.E.-II was done under 25% promotion quota. Sri Uttam Prasad (respondents No.5) who is junior to the applicant was promoted under S.C. quota while the applicant belonging to general category. All the persons after being promoted also successfully completed the prescribed training and they have taken the charge as J.E.-II in the pay scale of Rs.5,000-8,000/-. That the O.A. lacks merits and liable to be dismissed.
4. Afterwards, in response to the Counter Affidavit of the respondents applicant filed the Rejoinder Affidavit and the respondents also filed Supplementary Counter Reply.
5. We have heard Anant Vijay, Advocate for the applicant and Sri P.N. Rai, Advocate for the respondents and perused the entire facts of the case.
6. Under challenge in the O.A. is the seniority list issued by respondent No. 2 of the successful candidates dated 09.04.2007. It has been alleged by the applicant that he was the senior person and that the respondents issued a notification calling applications for departmental examination for promotion to the post of Junior Engineer Grade II in the pay scale of ` 5000-8000/-. These vacancies were advertised. Out of these vacancies, four were earmarked for General, one for S.C. and one for S.T. candidate. It is stated that the result of departmental examination was declared on 20.03.2007 of the successful candidates, and 8 persons were shown in the list of successful candidates, Annexure-5 is the copy of result dated 20.03.2007. It has also been alleged that annexure-1 is the list of selected candidates dated 09.04.2007 and according to this list, Sri Subachan Ram and Sri Uttam Prasad-respondent No. 5 have also been selected. Sri Subachan Ram and Uttam Prasad are the scheduled caste candidates but Sri Subachan Ram has illegally been selected against the General category candidate whereas Sri Uttam Prasad-junior to the applicant was selected against the reserved category of scheduled caste, and that this act of the respondents was most unjustified. Name of the applicant ought to have been at serial No. 4 in the list. Two persons of S.C. community have been selected according to this list, one against the General category vacancy and another against the reserved category. It has also been alleged by the applicant that he was selected on the post of Carriage Technician Grade I and thereafter promoted on 26.05.1995 on the post of Carriage Fitter Grade II in the pay scale of ` 1200-1800/-. The respondent No. 5 was promoted on the post of Carriage Fitter Grade II on 05.04.1997 in the pay scale of ` 1200-1800/-. In these circumstances, the applicant is senior to respondent No. 5. A seniority list was issued by the respondents on 03.05.2004 of promotion list of Carriage Technician Grade I in the pay scale of ` 4500-7000/- in which the applicant was placed at serial No. 46-junior to respondent No. 5 illegally, who was placed at serial No. 37 and a representation was made by the applicant for rectification of the promotion list and the list was rectified. The respondents also admitted in the Counter Reply that on 03.04.2005, a promotion order was issued and in that order, seniority of the applicant was wrongly shown, which was due to mistake and it was rectified vide Order No. 167/2007 dated 02.08.2007, and name of the applicant was placed at serial No. 130 whereas name of Sri Uttam Prasad was placed at serial No. 134. Hence, it is a fact that Sri Uttam Prasad-respondent No. 5 is junior to the applicant.
7. Now the dispute is regarding the select list of the Junior Engineer Grade II. As we have that these posts were advertised for promotion of Junior Engineer Grade II. Four posts were earmarked for General candidates, one each for S.C. and S.T. candidate. It has been argued by learned counsel for the applicant that Sri Subachan Ram ought to have been selected against the S.C. category post and not against the General category post, and four posts, earmarked for General category candidate, ought to have been filled by the General category candidate but nothing has been alleged by the applicant that whether Sri Subachan Ram is senior to the applicant or not and the respondents in the Counter Reply alleged that Sri Subachan Ram was selected against the General category candidate. All the candidates from serial No. 1 to 4 were senior to the applicant, and were placed against the General category while candidates at serial No. 5 and 6 were placed against the SC/ST candidate respectively. As we have stated above that only six promotional posts were advertised and written examination was conducted, and out of six posts, four posts were earmarked for General category. The main contention of learned counsel for the applicant is that Sri Subachan Ram ought to have been selected against the S.C. category and not against the General category but it has not been disputed that Sri Subachan Ram was junior to the applicant and if a candidate of S.C. category is senior to the General category then such candidate shall be selected/promoted against the General category candidate. It is not justified according to law that a person who belongs to SC category but above the General category candidate even then such candidate ought to have been selected against the SC category. Rejoinder Affidavit was also filed on behalf of the applicant wherein it has been alleged that the applicant was senior to Sri Subachan Ram and Sri Uttam Prasad, and as such Sri Uttam Prasad has no right to be selected against the reserved category of SC. It is alleged that Sri Subachan Ram being a candidate of S.C., and junior to the applicant, ought to have been promoted in the S.C. category. It has further been alleged that vide order dated 22.01.2003, DRM (P) promoted Sri Subachan Ram on the post of Technician Grade I in the pay scale of ` 4500-7000/- fixing his monthly salary ` 4625/-, and the applicant was promoted on the post of Technician Grade I in the pay scale of ` 5000/- which goes to show that the applicant is senior to Sri Subachan Ram. Under these circumstances, act of the respondents promoting Sri Subachan Ram against the post of General category, is against the law. Learned counsel also argued that Sri Subachan Ram being junior to the applicant ought to have been selected against the S.C. post.
8. After filing the R.A. on behalf of the applicant, the respondents also filed a Supplementary Counter Reply, and in that it has been alleged that Sri Uttam Prasad-respondent No. 5 after modification was placed below the applicant. It is alleged that Sri Uttam Prasad was selected against S.C. quota and while Sri Subachan Ram was senior to the applicant, hence he was accorded promotion under the General category. In para-4 of the RA it was alleged by the applicant that Sri Subachan Ram was promoted on the post of Technician Grade I in the pay scale of ` 4500-7000/- vide order dated 21.01.2003 whereas applicant was selected much earlier to Sri Subachan Ram in the grade of Technician Grade I and in these circumstances, applicant was senior to Sri Subachan Ram. In reply of this para-4 of the RA, it has been alleged by the respondents that the person promoted against the reserved category were much senior to the applicant, and Sri Uttam Prasad has been selected against the reserved quota but nothing has been alleged that whether Sri Subachan Ram was junior to the applicant or not. Although according to the seniority list/promotion list, Sri Subachan Ram was senior to the applicant. It has been alleged by the applicant that Sri Subachan Ram was promoted on the post of Technician Grade I on 21.01.2003 whereas applicant was promoted on that post much earlier. It has also been argued by learned counsel for the applicant that the benefit of reservation can be given only once and in support of his argument, he cited a Judgment of the Honble Apex Court reported in AIR 1996 Supreme Court 1189 Ajit Singh Januja and others Vs. State of Punjab and others. The Honble Apex Court held as under: -
The members of the Scheduled Castes or Backward class who have been appointed/promoted on basis of the policy of reservation and system of roster cannot claim promotion against general category posts in the higher grade, on basis of their seniority in the lower grade having been achieved because of the accelerated promotion or appointment by applying the roster. The equity principle requires exclusion of the factor of extra weightage of earlier promotion to a reserved category candidate because of reservation alone, when he competes for further promotion to a general category with a general category candidate, senior to him in the panel. Hence, in view of the Judgment of the Honble Apex Court that a S.C. or Backward class person if appointed/promoted on the basis of the policy of reservation and system of roster, cannot claim promotion against general category posts in the higher grade, on the basis of their seniority in the lower grade having been achieved because of the accelerated promotion or appointment by applying the roster. The principle of equity requires exclusion of the factor of extra weightage of earlier promotion to a reserved category candidate because of reservation alone, and if further promotion is to be made then a general category candidate will be senior to such a person in the panel. Learned counsel argued that the accelerated seniority was given to Sri Subachan Ram at one stage of the selection but subsequently he cannot claim promotion prior to the General category candidate who is senior to him. Twice benefit cannot be given. It has further been held by the Honble Apex Court, as under: -
Once such reserved percentage has been achieved and even the operation of the roster has stopped, then how it will be permissible to consider such candidates for being promoted against the general category posts on the basis of their accelerated promotion, which has been achieved by reservation and roster.
It is the case of applicant that Sri Subachan Ram was junior to the applicant and he has been promotion much later to the applicant. But the accelerated seniority was given to him as he belongs to SC category. Once Sri Subachan Ram availed that benefit, he cannot be selected against the General category candidate. It has also been argued that there was one post of Junior Engineer Grade II earmarked for S.C. and as Sri Subachan Ram was senior most S.C. candidate, he should have been promoted against the S.C. post, and not against the General category post. In view of the Judgment of the Honble Apex Court, the contention of learned counsel for the applicant appears more justified because once accelerated seniority was given to Sri Subachan Ram and thereafter he ought not to have been selected against the General category post. Hence, we are of the opinion that at the time of selection as Junior Engineer Grade II, Sri Subachan Ram ought to have been selected against the S.C. post and not against the General category post irrespective of the fact that Sri Subachan Ram was senior to him because this seniority was given to Sri Subachan Ram due to the reason that he belongs to S.C. community and it was accelerated seniority. In view of the Judgment of the Honble Apex Court, once such reserved percentage has been achieved then how it is permissible to consider such candidate for being promoted against the General category candidate on the basis of his accelerated seniority. In our opinion, applicant ought to have been selected against the General category post whereas Sri Subachan Ram ought to have been selected against the S.C. post. It can be said that the selection of respondent No. 5 Uttam Prasad was not in accordance with law. It was unjustified act on the part of the respondents to select Sri Subachan Ram against the General category candidate without considering the fact that Sri Subachan Ram was senior to the applicant due to accelerated seniority, and the position is that against the General post, one has been selected of the SC category and in view of the Judgment of the Honble Apex Court, such candidate ought to have been selected against the SC category post, and he is not entitled for second time benefit of the accelerated seniority and Sri Uttam Prasad was junior to the applicant hence he had no right to be selected.
9. Learned counsel for the respondents argued that Sri Subachan Ram was selected on the basis of his seniority because he was senior to the applicant and against the four general posts, three were selected of General category and one S.C. candidate on the basis of seniority. Hence, it cannot be said that Sri Subachan Ram was illegally selected against the General category and one post earmarked for S.C. candidate should have been given to Sri Uttam Prasad-next S.C. candidate to Sri Subachan Ram. But nothing has been argued that how Sri Subachan Ram became senior to the applicant whether it was due to the accelerated seniority. In view of the Judgment of the Honble Supreme Court, once accelerated seniority was given then on that post candidate is not entitled to be promoted against the General category. If there is S.C. post then such candidate ought to have been adjusted against the S.C. post. It has also been argued by learned counsel for the applicant that Sri Uttam Prasad was selected against the reserved post of S.C. and it is a fact that Sri Uttam Prasad was junior to the applicant. But it has been argued that Sri Uttam Prasad was the senior most S.C. candidate eligible for promotion, and he was selected accordingly. But this is against the spirit of Judgment of the Honble Supreme Court as we have stated that in view of the Judgment of the Honble Supreme Court twice benefit cannot be given to the S.C. candidate on the basis of accelerated seniority. In our opinion, Sri Subachan Ram should have been selected against the S.C. post whereas one post of General category should have been given to the applicant. The applicant alleged that next it was the applicant who ought to have been selected and this fact has not been disputed.
10. For the reasons mentioned above, we are of the opinion that the selection of respondent No.5- Uttam Prasad against the reserved category was unjustified because Sri Subachan Ram to whom General category post was given for promotion of Junior Engineer Grade II, was junior to the applicant. But due to reservation policy, he was placed above the applicant in the next below cadre. In view of the Judgment of the Honble Apex Court, if a person has availed the benefit of reservation policy on the basis of accelerated seniority, he cannot be considered subsequently against the General category post, and he should be considered only against the SC category post. The post which was given to Sri Uttam Prasad should have been given to Sri Subachan Ram and the general post which has been given in the selection to Sri Subachan Ram, should have been given to the applicant. The act of the respondents is unjustified. O.A. deserves to be allowed.
11. O.A. is allowed. The select list dated 09.04.2007, issued by respondents (annexure-1) is quashed and set aside. It is held that the respondent No. 5-Uttam Prasad was wrongly selected against the reserved post, this post should have been given to Sri Subachan Ram who had already availed the benefit of accelerated seniority. The respondents shall prepare a fresh select list and shall promote the applicant as per law and rules. The respondents are directed to comply with the Order within a period of three months from the date when a copy of this Order is received by them. The applicant shall produce a copy of the Order before respondent No. 2 at the earliest. No cost.
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