Punjab-Haryana High Court
Inspector Yash Pal And Others vs Union Territory on 9 March, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.W.P. No. 1052-CAT of 2010 (O&M)
Date of Decision: March 9, 2011
Inspector Yash Pal and others
...Petitioners
Versus
Union Territory, Chandigarh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR
MR. JUSTICE T.P.S. MANN
Present: Mr. G.S. Bal, Advocate,
for the petitioners.
Mrs. Lisa Gill, Advocate,
for respondent Nos. 1 to 3.
Mr. H.S. Sethi, Advocate,
for respondent Nos. 4 to 6.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in
the Digest?
M.M. KUMAR, J.
1. The instant petition filed under Article 226 of the Constitution is directed against judgment dated 11.9.2009 (P-14) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal') and the subsequent order dated 17.12.2009 (P-16) passed on the review-application filed by the petitioners.
2. The principal controversy raised before the Tribunal at the instance of the original applicant-petitioners was that the members of the Scheduled Castes have been occupying promotee quota posts of Inspector in the Police Department in excess of their quota which was assumed by the original applicant-petitioners to be 14%. It was CWP No. 1052-CAT of 2010 (O&M) 2 alleged that firstly the quota for Scheduled Caste candidates is 14%; and secondly Rule 12.3 of the Punjab Police Rules, 1934 (as applicable to the Union Territory of Chandigarh) [for brevity, 'the Rules'] carve out a quota for direct recruitment to the extent of 10% and the official respondents could not have allocated all the 48 posts of Inspector to the promotee quota by violating the Rules.
3. Brief facts of the case may first be noticed. The cadre of Inspector of Chandigarh Police comprised of 50 posts. The allegation of the original applicant-petitioners was that 10% of these posts are meant to be filled up by direct recruitment as per provisions of Rule 12.3 of the Rules. In other words, 5 posts have to be given to the direct recruitment quota and remaining 45 posts would be allocated to the eligible Sub-Inspectors for promotion as Inspector. On the question concerning percentage of reservation the pleaded case of the petitioners before the Tribunal was that reservation for the members of Scheduled Castes under the U.T. Administration was 14% of the posts in a particular cadre. They also placed reliance on the instructions dated 2.7.1997, which were purported to have been issued for implementing the principles laid down by Hon'ble the Supreme Court in the cases of R.K. Sabharwal v. State of Punjab, Punjab, (1995) 2 SCC 745 and Ajit Singh Janjua v. State of Punjab, Punjab, (1996) 2 SCC 715.
715 It was asserted that the instructions laid down separate reservation in the cadres of promotees as well as direct recruits. Accordingly, it was claimed that one post from the quota for direct recruitment would go to the members of the Scheduled Castes and 6 posts out of 45 posts would go to promotee quota which would be reserved for Scheduled Caste candidates. It was submitted that even if both the quotas of promotee and direct recruitment were clubbed then it would exceed 7% out of total 48 posts. In order to CWP No. 1052-CAT of 2010 (O&M) 3 show that the members of the Scheduled Castes have exceeded the prescribed quota of 14%, reliance was placed on the tentative seniority list (A-2) to show that there were 8 persons belonging to the Scheduled Caste category, who were already occupying reserved posts as Scheduled Caste candidates and there was excess of two posts being occupied by the members of the Scheduled Caste.
4. The official respondents in their reply had taken the stand that as per the provisions of Rule 12.3 of the Rules there was 10% quota for direct recruitment yet on account of prevalent practice all the posts are filled up by promotions. They further asserted that the reservation for members of the Scheduled Caste category is 15% and accordingly out of 48 posts, 7 posts would fall to the share of the reserved category. They justified that till 30.3.2007 the members of the Scheduled Caste category were occupying by promotion only 7 posts. A vacancy had become available on the retirement of Shri Pal Singh on 1.8.2007 and two other vacancies meant for un-reserved candidates became available on 30.9.2007. There was some clarification sought with regard to percentage of posts in promotions and those vacancies were to be filled up after the clarification was received.
5. The Tribunal rejected the contention raised by the original applicant-petitioners by holding that quota of 14% was to be applied to 48 posts (50 - 2 posts of Wireless cadre). The Tribunal also held that at the rate of 14% reservation, 7 posts would fall to the share of Scheduled Caste candidates. The argument that 8 Scheduled Caste candidates were in position was repelled by the Tribunal by explaining that Inspector Karnail Singh was promoted on his own turn and he did not avail the benefit of reservation of belonging to the Scheduled Caste category. Therefore, on the date of filing of the CWP No. 1052-CAT of 2010 (O&M) 4 OA by the petitioners, the private respondents had not exceeded the reservation quota in promotion of Scheduled Caste category candidates to the post of Inspector. Likewise, during the pendency of the OA, the position of reserved category Scheduled Caste candidates as on 11.9.2009 also satisfied the Tribunal, inasmuch as, only 7 candidates belonging to Scheduled Caste category were promoted and, therefore, the reservation did not exceed. The Tribunal in paras 11, 12 and 13 has observed as under:-
"11. From this, it is apparent that 2 persons of SC category have been promoted to the post of Inspector on reservation basis during the pendency of this OA but with these promotions also, the number of SC candidates promoted on reservation basis has not exceeded 7.
12. The law on this subject is very clear now that reservation is to be given against posts and not against vacancies. The main issue to be kept in view is that only 7 posts can be occupied by SC category candidates at any given moment of time. Only 7 posts are filled up thus, no further vacancy can be filled up by SC category candidate. After that whenever a post falls vacant, it has to be filled up either from general Category candidates or from any other Reserved category candidates where the representation in respect of the post filled up is less than the required number. The total number of posts to be filled up by SC candidates cannot be allowed to exceed 7 at any given point of time.
13. Under these circumstances, since it has been found that the number of posts filled up on promotion basis by giving reservation to SC candidates has not CWP No. 1052-CAT of 2010 (O&M) 5 exceeded 7 at any given moment of time, no illegality has been found in the promotions made by the respondents. Consequently, the OA fails and the same is dismissed with no order as to costs."
6. With regard to 10% quota for direct recruitment, the Tribunal in para 4 has noticed the reasoning given in the reply of the official respondents that on account of practice the posts of Inspector to the extent of 100% are filled up by promotion. However, the Tribunal has neither accepted or rejected the aforesaid stand of the respondents.
7. Mr. G.S. Bal, learned counsel for the original applicant- petitioners has vehemently argued that the Tribunal has committed grave error in law because the model roster with 14% reservation for members of Scheduled Caste would show that only 6 posts out of total 48 posts could have been allocated to Scheduled Caste candidates. If the reservation is 15% then 7 posts could have been given to the members of the Scheduled Caste category. In that regard he has drawn our attention to the post based roster (A-3- Annexure III). Mr. Bal has also argued that if Rule 12.3 of the Rules is applied then the total number of posts would be reduced to 45 which could be filled up by promotion and, therefore, there cannot more than 6 posts falling to the share of the members of the Scheduled Castes in any case.
8. Referring to para 4 of the order dismissing the review application, Mr. Bal has argued that there is no concept of rounding off once roster has been provided. According to the learned counsel, the Tribunal has adopted a wholly unlawful reasoning by rounding off 6.72 posts to the next available number of 7 and, therefore, the order of the Tribunal is liable to be set aside. CWP No. 1052-CAT of 2010 (O&M) 6
9. Mrs. Lisa Gill, learned counsel for the U.T. Administration has, however, submitted that it is in-correct on the part of the Tribunal to conclude that reservation by promotion is 14%. According to the learned counsel the Brochure of Reservation for Scheduled Castes and Scheduled Tribes in Services (8th Ed., 1993) issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi (for brevity, 'the Reservation Brochure'), would clearly show that percentage of reservation for Scheduled Castes by promotion is 15%. In that regard she has drawn our attention to Chapter 2 of the Reservation Brochure and argued that whatever the mode of promotion contemplated by the relevant rules is, in all the three cases the percentage of reservation is 15%. On the basis of the provisions of Order XLI Rule 22 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), learned counsel has challenged the findings recorded by the Tribunal that the reservation is 14%. In any case, she has submitted that the finding would be contrary to the statutory instructions given in Chapter-II (supra) which provide that reservation for posts to be filled by promotion for members of Scheduled Castes would be to the extent of 15%. In support of her submission that the Administration could challenge the findings of the Tribunal, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of S. Nazeer Ahmed v. State Bank of Mysore, Mysore, (2007) 2007) 11 SCC 75.
75
10. The other argument raised by Mrs. Gill is that Rule 12.3 of the Rules does not in term mandates the respondent-Administration to fill the posts by direct recruitment to the extent of 10%. According to the learned counsel the language of the rule suggests that it is a discretion given to the Administration to make direct CWP No. 1052-CAT of 2010 (O&M) 7 recruitment up to a maximum of 10%. She has emphasised that it could not be regarded mandatory that 10% posts must be filled up by direct recruitment. Therefore, the learned counsel has supported the conclusion of the Tribunal by substituting the reasoning as per her arguments.
11. Mr. H.S. Sethi, learned counsel for the private respondents has submitted that there is admission on the part of the petitioners in the original application accepting that when the posts by direct recruitment and promotion are clubbed then total 7 posts would fall to the share of the Scheduled Castes category. In that regard he has drawn our attention to para 1 under the heading 'Details of the Application' as well as para 4(1) of the OA. According to the learned counsel once there is admission made by the petitioners accepting that 7 posts would fall to the share of the Scheduled Castes category then no case is left for the respondents to answer because 8 posts which have been filled up, stand explained, inasmuch as, Shri Karnail Singh had consumed a General category point as he did not avail the benefit of reservation.
12. Another issue raised by Mr. Sethi is that Inspector Labh Singh was sent on deputation somewhere in 2007 and in his place one Shri Bakshish Singh was given promotion as Inspector w.e.f. 5.4.2007 as a temporary replacement of Inspector Labh Singh. Mr. Sethi has pointed out that in any case another vacancy became available because Inspector Bakshish Singh has expired on 17.1.2011.
13. Answering the arguments of the petitioners, Mr. Sethi has submitted that it is not only the numerical strength, percentage of posts must also be fulfilled. In that regard he has placed reliance on the observations made in para 5 of the judgment in R.K. Sabharwal's CWP No. 1052-CAT of 2010 (O&M) 8 case (supra).
(supra) To strengthen his view, learned counsel has also relied upon the judgment of Hon'ble the Supreme Court rendered in the case of Bhudev Sharma v. District Judge, Bulandshahr, Bulandshahr, (2008) 1 SCC 233, 233 and argued that if there is a fraction which is over .5% then it must be rounded off to the next number. On the basis of the aforesaid reasoning it has been submitted that if the 14% reservation roster or 15% reservation roster is followed then the members of the Scheduled Castes would not ever be able to reach their total percentage of 15% and it would always be less than 15%. Such a course would violate the principles laid down in R.K. Sabharwal's case (supra).
(supra) Mr. Sethi has also argued that after the filing of the OA, two persons junior to the private respondents belonging to Scheduled Caste category were also promoted during the pendency of the proceedings before the Tribunal.
14. Before discussing the issues concerning controversy on merit it would first be apposite to clarify a preliminary point, namely, whether the respondent-Chandigarh Administration could support the conclusion reached by the Tribunal and still attack the findings or reasoning for reaching that conclusion. The High Court of Punjab and Haryana has framed rules known as 'Writ Jurisdiction (Punjab and Haryana High Court) Rules, 1976 (for brevity, 'the Writ Rules'). Rule 32 of the Writ Rules specifically laid down that "in all matters for which no provision is made by these rules, the provisions of the Code of Civil Procedure 1908, shall apply mutatis mutandis, in so far as they are not inconsistent with these rules." In other words, on issues where the Writ Rules are silent, the provisions of the Code would ipso facto apply. A perusal of the Writ Rules would show that there is no rule dealing with a situation contemplated by Order XLI Rule 22 of the Code. According to the provisions of Order XLI Rule CWP No. 1052-CAT of 2010 (O&M) 9 22 a respondent in appeal is entitled to support the decree of the trial Court by challenging any findings rendered by it and which might have gone against him. The provisions of Order XLI Rule 22 insofar as relevant to the controversy in hand are set out below:
"22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross- objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent."
15. The aforesaid provision has been subject matter of consideration of the Courts. In para 7 of S. Nazeer Ahmed's case (supra) it has been held that the respondent in appeal is entitled to support the decree of the trial Court even by challenging any of the finding that might have been rendered by the Court against the CWP No. 1052-CAT of 2010 (O&M) 10 decree holder. For such a purpose it is not necessary for the respondent in appeal to file a memorandum of cross objection challenging a particular finding that is rendered by the trial Court against him when the ultimate decree in itself is in his favour. It has been emphasised that a memorandum of cross objection is needed only if the respondent claims any relief which had been negatived against him by the trial Court and/or in addition to what he has already been given by the decree under challenge. Therefore, there is no impediment to grant permission to the respondent-Chandigarh Administration to challenge the findings of the Tribunal which otherwise might have gone against it even if the conclusion arrived at in the impugned judgment has been accepted by the respondent- Chandigarh Administration. Therefore, we would examine the rival contentions in the light of the aforesaid liberty granted to the respondent-Chandigarh Administration.
16. The first issue which needs determination by this Court is whether there is any mandatory provision providing for 10% quota by way of direct recruitment to the post of Inspector in Chandigarh Police. The answer has to be ascertain by interpreting Rule 12.3 of the Rules, which reads thus:
"12.3. Direct Appointments of Inspectors and Assistant Sub-Inspectors. - Except as provided in Rules 12.1 and 12.4, direct appointments shall not be made except in the rank of Inspector, prosecuting Sub-Inspector and Assistant Sub-Inspector. Such appointments in the rank of Inspector and Assistant Sub-Inspector may be made up to a maximum of ten per cent and twenty-five per cent of vacancies respectively."
17. A perusal of Rule 12.3 of the Rules would show that no CWP No. 1052-CAT of 2010 (O&M) 11 direct appointment to any cadre is permissible except in the rank of Inspector and such appointments could be made up to a maximum of 10%. In other words, if the respondent-Chandigarh Administration feel the necessity of filling up the posts by resorting to direct recruitment then there is no bar on them. The only ceiling imposed is that the direct recruitment is not to exceed 10% which is the maximum limit. In other words, in a given eventuality the respondent-Chandigarh Administration has been given space by the rule makers to resort to direct recruitment also but it does not mean that there is a quota of 10% provided for direct recruits. On the language of the Rule it cannot be concluded that in filling up the posts of Inspector the respondent-Chandigarh Administration is under obligation to provide 10% quota for direct recruitment. There may be eventualities when the Administration may feel that adequate number of efficient officers in feeder cadre are not available for promotion as Inspector and, therefore, it may resort to filling up the posts of Inspector from the open market by direct recruitment but it has a ceiling of 10% quota. There is nothing on the record to suggest that the respondent-Chandigarh Administration has ever taken a conscious decision to go for direct recruitment by filling up the posts of Inspector by way of direct recruitment. It cannot be laid down that Rule 12.3 of the Rules imposes a mandatory legal obligation on the respondent-Chandigarh Administration to fill up 10% posts of Inspectors by way of direct recruitment. Once the aforesaid legal position is clear then all the 48 posts of Inspectors have to be filled up by way of promotion and for promotee the total number of posts would not be considered to be 45 as was sought to be argued by the learned counsel for the petitioners.
CWP No. 1052-CAT of 2010 (O&M) 12
18. The next question is, what is the percentage of reservation provided for members of the Scheduled Caste category in the promotees category. The controversy between the parties is whether there is 14% or 15% quota provided for Scheduled Caste category. The 'Reservation Brochure' has been adopted and accepted by the respondent-Chandigarh Administration. In Chapter 2, under clause 2.1 of the 'Reservation Brochure' the following provision has been made:-
"2.1 Subject to Exemptions and Exclusions referred in Chapter 3, the following reservations are in force in favour of the Scheduled Castes and Scheduled Tribes in filling vacancies in posts and services under the Government of India:
(i) & (ii) xxx xxx xxx
Scheduled Scheduled
Castes Tribe
(iii) Post filled by promotion:-
(a) Through limited 15%
departmental
competitive
examination, in Groups
B, C and D (Class II, III,
IV), in grades or
services in which the
element of direct
recruitment if any, does
not exceed 75%
(b) By Selection from Group 15%
B (Class II) to the lowest
rung or category in
Group A (Class (I) and in
Groups B, C and D
(Class II, III and IV)
posts, in grades or
services in which the
element of direct
recruitment if any, does
not exceed 75%
CWP No. 1052-CAT of 2010 (O&M) 13
(c) On the basis of seniority 15%
subject to fitness, in
Groups A, B, C and D -
(Class I, II, III and IV),
posts, in grades or
services in which the
element of direct
recruitment, if any, does
not exceed 75 per-cent"
19. A perusal of the aforesaid provision would show that the percentage of reservation for posts to be filled up by promotion is 15% whether it is through limited departmental competitive examination or by selection from Group B etc. or on the basis of seniority subject to fitness. The instructions have further clarified by providing a 'Model Roster of Reservation' where the percentage is 15%. The Model Roster is available in the Swamy's Compilation on 'Reservations and Concessions', Ninth Edition-2008. The relevant extract of Annexure-III of the Post-based Rosters effective from 2.7.1997, which has been issued by the Government of India, Department of Personnel and Training to implement the judgment of Hon'ble the Supreme Court rendered in the case of R.K. Sabharwal (supra), (supra) vide O.M. No. 36012/2/96-Estt. (Res.), dated 2.7.1997, is reproduced as under:
" ANNEXURE-III
FOR PROMOTION
Objective:- Representation of each of the reserved
category should at no point of time
exceed the reservation prescribed for it.
MODEL ROSTER OF RESERVATION WITH REFERENCE TO POSTS Sl. Share of entitlement Category for which CWP No. 1052-CAT of 2010 (O&M) 14 No. SC @ 15% ST @ 7.5% the post should be of earmarked Post
1. 0.15 0.075 UR
2. 0.30 0.15 UR
3. 0.45 0.225 UR
4. 0.6 0.3 UR
5. 0.75 0.375 UR
6. 0.90 0.45 UR
7. 1.05 0.525 SC-1
8. 1.2 0.6 UR
9. 1.35 0.675 UR
10. 1.5 0.75 UR
11. 1.65 0.825 UR
12. 1.8 0.9 UR
13. 1.95 0.975 UR
14. 2.1 1.05 ST-1
15. 2.25 1.125 SC-2
16. 2.40 1.2 UR
17. 2.55 1.275 UR
18. 2.70 1.35 UR
19. 2.85 1.425 UR
20. 3.0 1.5 SC-3
21. 3.15 1.575 UR
22. 3.30 1.65 UR
23. 3.45 1.725 UR
24. 3.60 1.8 UR
25. 3.75 1.875 UR
26. 3.90 1.95 UR
27. 4.05 2.025 SC-4
28. 4.20 2.1 ST-2
29. 4.35 2.175 UR CWP No. 1052-CAT of 2010 (O&M) 15
30. 4.50 2.25 UR
31. 4.65 2.325 UR
32. 4.80 2.4 UR
33. 4.95 2.475 UR
34. 5.10 2.55 UR
35. 5.25 2.625 SC-5
36. 5.40 2.7 UR
37. 5.55 2.775 UR
38. 5.70 2.85 UR
39. 5.85 2.925 UR
40. 6.00 3 ST-3
41. 6.15 3.075 SC-6
42. 6.30 3.15 UR
43. 6.45 3.225 UR
44. 6.60 3.3 UR
45. 6.75 3.375 UR
46. 6.90 3.45 UR
47. 7.05 3.525 SC-7
48. 7.20 3.6 UR
49. 7.35 3.675 UR
50. 7.50 3.75 UR
51. 7.65 3.825 UR
52. 7.80 3.9 UR
53. 7.95 3.975 UR
54. 8.10 4.05 SC-8 55 xxx xxx xxx"
to 200
20. A perusal of the aforesaid Model Roster would show that it has been prepared to determine the share of entitlement when the reservation provided is 15%. Up to point No. 47, the candidate CWP No. 1052-CAT of 2010 (O&M) 16 belonging to Scheduled Caste category would consume 7 posts and, therefore, out of 48 posts, 7 would fall to the share of the members of the Schedule Castes and in order to earn 8th post the cadre strength has to be 54. This is adequately depicted by Serial No. of the post and by devoting a complete column to the category to which the post should be earmarked. Therefore, we cannot accept the view expressed by the Tribunal that firstly the percentage for reservation for the members of the Scheduled Caste category is 14%. The Tribunal has also not correctly appreciated that while working out the roster, the question of rounding off would not be relevant because the Model Roster puts all guess-work, like rounding off, to rest by working out the percentage up to particular number of posts and then earmarking the posts to the un-reserved or the Scheduled Caste or the Scheduled Tribe categories. It was purportedly done in pursuance to the directions issued by the five- Judges Constitution Bench of Hon'ble the Supreme Court in R.K. Sabharwal's case (supra).
(supra)
21. The judgment of Hon'ble the Supreme Court in the case of Bhudev Sharma (supra) would not support the submission made by the private respondents because there the reservation was prescribed by percentage without earmarking the posts on a roaster.
In other words, only percentage of quota for physically handicapped category was provided but there was no Model Roster substantiating the working of the quota for the whole cadre. In the absence of any Model Roster the rounding off may be permissible but not in a case where the Model Roster has clarified the picture at the hands of the respondent Administration.
22. The object of providing the Model Roster declared itself in the roster is that "representation of each of the reserved category CWP No. 1052-CAT of 2010 (O&M) 17 should at no point of time exceed the reservation prescribed for it." Therefore, the argument that the members of the Scheduled Caste category would never be able to achieve full percentage of their reservation is not sustainable because the Model Roster has a statutory flavour. There is no challenge to the statutory flavoured instructions and the Model Roster. Therefore, we are of the view that the Tribunal has reached the correct conclusion but by erroneous reasoning.
23. As a sequel to the above discussion, this petition fails and the same is accordingly dismissed.
(M.M. KUMAR) JUDGE (T.P.S. MANN) MANN) March 9, 2011 2011 JUDGE Pkapoor