Central Administrative Tribunal - Mumbai
Arvind Kumar Ranjan vs Western Railway on 11 March, 2025
1 OA No. 876/2023
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No. 876/2023
Reserved on: 29.01.2025
Pronounced on: 11.03.2025
Hon'ble Mr. Justice M.G. Sewlikar, Member (J)
Hon'ble Mr. Santosh Mehra, Member (A)
Arvind Kumar Ranjan,
Son of Shri Parmeshwar Singh,
Date of birth: 01.03.1977, age 46 years,
working as: Senior Section Engineer
(SSE) (Group "C" post), in the office of
Assistant Divisional Engineer, Western
Railway, Mumbai Central, Mumbai
Division, Near Reservation Office,
Mumbai Central, Mumbai 400008, and
residing at: Western Railway Colony,
Bldg No.97/J, Borivali (East), Mumbai
400066, Cell: 9136564892, 9004499234,
email: [email protected]
-Applicant
(By Advocate Mr. R G Walia)
Versus
1. Union of India,
Through: Secretary, Railway Board, Rail
Bhavan, Raisina Road, Rafi Ahmed
Kidwai Marg, New Delhi-110011.
Email id: [email protected]
2. General Manager,
Office of the General Manager,
Western Railway, Headquarters' Office,
M.K. Road, Churchgate, Mumbai 400020.
Email id:
3. D.G.Nair,
Directorate General of National
2 OA No. 876/2023
Academy of Indian Railway,
Vadodara, 390004.
Email: [email protected]
4. Principal Chief Engineer
Headquarters' Office, Western Railway.
M.K. Road, Churchgate, Mumbai 400021.
Email id [email protected]
-Official Respondents
5. Rajesh Kashinath Jatua,
Working as Senior Section Engineer
(ZMC)/VTA, under Principal Chief Engineer,
Headquarters' Office, Western Railway,
M.K. Road, Churchgate, Mumbai 400021.
Email id [email protected]
6. Alok Kumar,
Working as Senior Inspector (Tech)
CRS/WR under Principal Chief Engineer,
Headquarters' Office, Western Railway, M.K. Road,
Churchgate, Mumbai 400021.
Email id - [email protected] - Respondent Nos. 5
to 6 are Private Respondents to be served through
Respondent no. 4 herein.
(By Advocate Mr. S C Dhawan a/w Ms. Vaishali
Choudhari- respondent nos. 1 to 4, Ms. Himanshi
Balodi- private respondent no. 5 and Mr. V A Nagrani-
private respondent no. 6 )
ORDER
Per: Justice M.G. Sewlikar, Member (J)
The applicant by this application is seeking promotion to Group 'B' post of Assistant Engineer (AEN) with all consequential benefits.
3 OA No. 876/2023
2. Facts giving rise to this application are that the applicant is presently working on the post of Senior Section Engineer (SSE) (Group "C" post), in the office of Assistant Divisional Engineer, Western Railway, Mumbai Central, Mumbai Division, Mumbai.
3. The respondents issued a selection Notification dated 20th February, 2023 whereby 20 vacancies were notified for selection to the post of AEN which is a (Group "B" post) against 30% Limited Departmental Competitive Examination (LDCE) Quota. Accordingly, the applicant applied for the same along with other candidates. The respondents conducted the written test on 25th June, 2023. The applicant was declared qualified and, therefore, he was called for viva-voce, which was conducted on 16th to 18th and 23rd August, 2023. The respondents declared the marks obtained by candidates in this selection process vide letter dated 29th August, 2023 (Annexure A-6). The applicant was not promoted but the candidates who had secured less marks than the applicant were promoted. The applicant also noticed that he had given correct answer to question no. 311 but the respondents marked it as wrong 4 OA No. 876/2023 answer. Question no. 209 was cancelled for no valid reason whatsoever.
4. The applicant further contends that the respondents have granted reservation in the matter of promotion and also illegally accelerated seniority in complete violation of the Law of the Land as laid down in the case of M. Nagraj and Others vs Union of India and Others, (2006) 8 SCC 212 dated 19th October, 2006 and other judgment of Supreme Court. The applicant contends that the respondents vide notification dated 20th February, 2023 provided reservation illegally in the matter of promotion even though there is no Rule or Law existing to provide any reservation in the matter of promotion. From the panel of promotion, it is seen that the respondents are promoting four candidates listed at serial no. xvi to xix who have scored less marks than the applicant and this has happened because of the reservation illegally provided by the respondents in the matter of promotion. He contends that the applicant has scored 160.07 marks in LDCE whereas the candidates at serial no. xvi to xix have scored 160, 159.18, 157.15 and 151.30 respectively. According to 5 OA No. 876/2023 the applicant, the answer to question no. 311 was the correct one but the respondents marked it as wrong and the question no. 209 is illegally deleted. If answer to any one of these questions is held to be correct, the applicant will score 161.57 marks (by scoring additional 1.38 marks) and thus, he will be placed above two General category candidates, Rajeev Kumar Singh and Mr. Alok Sharma who are placed at serial nos. 14 and 15 of the said panel. Mr. Rajeev Kumar Singh has scored 161.12 marks whereas respondent no. 6, Shri Alok Kumar has scored 161.05 marks.
5. The applicant made representation against marking wrong answer to question no. 311 and deleting question no. 209 on 22nd September, 2022, 25th September, 2023, 11th October, 2023 and 25th October, 2023. The respondents did not bother to decide these representations and are in the process of implementing the Panel dated 24th August, 2023. Till 27th October, 2023, the respondents did not post any person from the said Panel as AEN. 6 OA No. 876/2023
6. The applicant further contends that before providing reservation in promotion, the respondents have to follow the conditions laid down by Supreme Court in the matter of M. Nagraj (supra) and Jarnail Singh and Others vs Lachhmi Narain Gupta and Others, (2018) 10 SCC 396 dated 26th September, 2018. The applicant contends that the respondents have not conducted any survey to collect quantifiable data to provide reservation in the matter of promotion or consequential seniority. The respondents have also failed to identify the backwardness of the classes of employees to justify the provision for reservation in promotion in the notification dated 20th February, 2023. Therefore, the respondents could not have made any provision for reservation in the notification dated 20th February, 2023. The respondents could not have made provision in notification for promotion without collecting the data as regards adequacy of representation of the backward class in Government service, the relevance / necessity of reservation in the service on the basis of quantifiable data and the effect of reservation on the maintenance of efficiency of administration. The State has 7 OA No. 876/2023 to first form its opinion on the quantifiable data with regard to adequacy of representation and only then, can make provision for providing reservation in promotion. The State has not carried out any exercise till date in compliance or to satisfy the parameters (Prerequisites/Compelling reasons) to provide reservation in promotion. He contends that the only provision granting reservation in promotion was vide Memorandum dated 13th August, 1997 which has been set aside by the Delhi High Court in writ petition no. 3490 of 2010. The applicants have, therefore, filed this OA seeking following reliefs:-
"(a) This Hon'ble Tribunal may graciously be pleased to call for the records and proceedings of the case which led to the issuance of the impugned orders i.e Impugned Order dated 24.08.2023 i.e. Annx "A1" and impugned Notification dated 20.02.2023 i.e Annx. "A2"
and after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same and accordingly direct the respondents to promote the applicant herein to Group "B" post of AEN (Assistant Engineer) with all consequential benefits.
(b) This Hon'ble Tribunal may graciously be pleased to hold and declare that as the applicant has scored more marks than the candidates from Sr. No.16 to 19 in the impugned Panel dated 24.08.2023 prepared by the respondents for the purpose of promotion to the Group "B" post of AEN (Assistant Engineer) and hence he is entitled to be included in the said impugned Panel dated 24.08.2023 above the candidate No.16 in the said Panel dated 24.08.2023 only to the extent it provides reservation in the matter of promotion. 8 OA No. 876/2023
(c)This Hon'ble Tribunal may graciously be pleased to order and direct the respondents to grant marks for Question No.311 by holding that the Answer of the applicant to the said question is correct and proper and accordingly Order and direct the respondents to include the said marks in the total and accordingly promote the applicant to the post of AEN(Assistant Engineer) if he has overall scored more marks than any other candidates.
(d) This Hon'ble Tribunal may graciously be pleased to hold and declare that the impugned act of the respondents to cancel or strike out Question No.209 as illegal and wrong and accordingly hold and declare that the said question be included in the concerned selection and appropriate marks be allotted to persons who have given option No.4 to the said question and accordingly Order and direct the respondents to promote the applicant to the post of AEN (Assistant Engineer) if he has overall scored more marks than any other candidates.
(e) Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case.
(f) Costs of this Original Application may be provided for."
7. In the interim reply filed by the respondents, it is contended that NAIR/Vadodara had communicated the instructions to all Zonal Railways / PUs/ candidates through (I) National Academy of Indian Railways (NAIR) website, (II) in candidate call letter and (III) letters issued by NAIR dated 08th June, 2023 and 15th July, 2023 for raising objections on questions/answer keys after the examination, the objection tracker will be live from 10.00 hrs of 28 th 9 OA No. 876/2023 June, 2023 to 17.00 hrs of 30th June, 2023. This is the only channel of submission of objections. Objections / representations received through letters, emails etc. were not to be entertained and no reply would be sent on these objections / representations. Objections / representations received through objection tracker window would be evaluated by the paper setters and final evaluation would be done on the basis of final answer keys.
8. Respondents filed their detailed reply. They contend that the panel for selection for the post of AEN (LDCE) dated 24th August, 2023 was issued in accordance with law and Board's instructions dated 22nd June, 2022. They contend that the case of Jarnail Singh and related batch of cases in the matter of reservation are yet to be finally disposed off by the Apex Court. As such in terms of instructions issued by Railway Board vide letter No. 2018- E(SCT)1/25/9 dated 22nd June, 2022, the panel of AEN(LDCE) dated 24th August, 2023 (Annexure A-1) was notified as subject to further orders that may be passed by Supreme Court in the Jarnail Singh and other batch of cases. The pre-requisites in the matter of providing 10 OA No. 876/2023 reservation in promotions as mentioned in the case of M. Nagraj (supra) & other related cases have been duly complied with in this selection. They further contend that the candidates at serial nos. xvi to xix in the selection panel were placed on AEN(LDCE) panel as per the vacancies and posts available for the post AEN(LDCE) as assessed for the period 01st January, 2023 to 31st December, 2024 duly approved by the competent authority. After complying with the pre-requisites in the matter of providing reservation in promotions as mentioned in the case of M. Nagraj (supra) & other related cases. A copy of assessment vacancies is enclosed at Annexure- R-1. As per the assessment, there is a requirement of 02 SC, 02 ST and 01 PwBD candidate against reservation for the above LDCE selection. Hence, the candidates at serial no. xvi to xix of the panel dated 24th August, 2023 were empanelled against the vacancies reserved for SC/ST and candidate at serial no. 20 was empanelled against the vacancy reserved for PwBD category.
9. They further contend that the applicant belongs to General category and, therefore, he was considered against 11 OA No. 876/2023 the vacancies notified for General candidates wherein he could not secure the required merit vis-à-vis vacancies assessed for General candidates. He, therefore, could not find his place on the panel.
10. They further contend that the assessment sheet for calculating vacancies for the said selection (Annexure R-1) clearly shows that there was shortfall of SC/ST vacancies for the selection and accordingly, 2 vacancies each were reserved for SC and ST candidates in the AEN(LDCE) selection in question following the norm of adequacy of representation for reserved community in the selection. As per para E (a) of the Assessment sheet for selection to Group 'B' posts of AEN for the assessment period 01 st January, 2023 to 31st December, 2024, there is requirement of 18 SC and 09 ST employees as per roster against 117 total assessed cadre posts for Group 'B'. As against this, there are 12 officers from SC community and 03 officers from ST community working on the roster against the vacancies reserved for SC & ST respectively as per details given in para E (b) of the said Assessment sheet (Annexure - R1). Hence, there was a net requirement of 06 12 OA No. 876/2023 SC and 06 ST officers for filling up Group 'B' posts. Thus, there is a requirement of 15 General, 02 SC and 02 ST officers besides 01 officer from PwBD category. The vacancies of reserved communities for the said selection were assessed based on the quantifiable data and as per the conditions prescribed by the Apex Court.
11. The applicant filed rejoinder. He contends that on the Notification dated 20th February, 2023, the respondents did not take any step for complying with the pre-requisites. No compelling reason has been stated or demonstrated for the State / Respondents to provide reservation in the matter of promotion. Even as to what extent reservation is to be applied after satisfaction of pre-requisites has not been brought out by the respondents. The respondents have, therefore, come to the Court with unclean hands. They contend that the Annexure- R-1 is an assessment of vacancies and is not satisfaction of pre-requisites to provide reservation in the matter of promotion.
12. He further contends in the rejoinder that the Written Test was held on 25th June, 2023. Answer Key was issued 13 OA No. 876/2023 by NAIR Vadodara. Answer Key was uploaded on the website of NAIR on 28th June, 2023. He contends that the Answer Key shows that for question no. 311, answer given by the applicant was option no. 1 and according to Answer Key, correct answer was option no. 1. According to the applicant, Annexure RJ A1 is the copy of the relevant portion of the said answer sheet dated 28th June, 2023 which clearly shows that the answer given by the applicant was correct and the same goes for question no. 209.
13. He further contends that the respondents subsequently uploaded another answer key which was downloaded. The respondents altered the answer to question no. 311 from Option 1 to Option 2 and question no. 209 was all-together removed/deleted in an arbitrary manner. The applicant made representations on 22nd September, 2023, 25th September, 2023, 11th October, 2023 and 25th October, 2023 and along with the said representations full documentary proof was enclosed to highlight that his answer to question no. 311 and 209 were correct and proper. The averments in this respect have been made by the applicant in Original Application which 14 OA No. 876/2023 have not been denied by the respondents nor have they presented any other document to show that the answer of the applicant to question no. 311 and 209 were wrong and incorrect. The respondents have not explained as to how question no. 209 was deleted. Question no. 209 was neither erroneous nor its answers were wrong. He contends that the letter dated 05th December, 2023 (Annexure R-2) was never communicated to the applicant either physically or by Post or by E-mail. The same was uploaded on E- Office which was the common Official Portal of the Western Railway.
14. The respondent no. 5 has filed the reply. He contends that the Panel dated 24th August, 2023 consisting of total 20 employees out of which employees at serial no. xvi to xix belongs to SC/ST category and employees at serial no. 20 belongs to PwBD category. The applicant deliberately joined employee at serial no. 15, Alok Kumar as respondent no. 5 who was a General category candidate and then only respondent no. 5 was joined from all the reserved category candidate. He contends that the applicant has deliberately not joined the affected parties in the OA with an oblique 15 OA No. 876/2023 motive to obtain order in his favor. The affected parties have substantial legal interest in the subject matter of the litigation. The applicant has sought multiple reliefs which is contrary to rules. On one hand, the applicant is seeking declaration to his answer to be correct for two questions and on the other hand, he is challenging the policy of reservation in promotion in the notification at a much latter stage so that he can claim a seat of a reserved employee. The applicant was well aware with the fact that there is reservation in the promotion procedure. He did not challenge the notification and participated in the selection procedure. After the written test was over and the answer key was declared, three days were given to all the employees to raise objection related to any question of the written test examination. The applicant did not raise any objection. When the applicant came to know that he has not been placed in the panel due to his not qualifying written examination, he has challenged the notification with an oblique motive. The applicant has not challenged the notification dated 20th February, 2023 in which it was clearly mentioned that there would be reservation in 16 OA No. 876/2023 promotion. The applicant having knowledge of the reservation provided in the notification participated the selection process. After declaring unsuccessful, he cannot challenge the selection process.
15. He further contends that Article 16(4A) of the Constitution of India allows the State to grant reservation in promotions in favour of Scheduled Castes and Scheduled Tribes which was inserted by the Parliament by the 77th Amendment Act, 1995. The constitutional validity of Article 16(4A) was upheld in the case of M. Nagraj (supra) versus Union of India. In the case of M. Nagraj (supra), the Supreme Court held that the conflicting claims of individual right under Article 16(1) and preferential treatment in the matter of promotion to SC/STs under Article 16(4A) must be balanced. To achieve this balance, the Supreme Court has provided few condition to be followed while giving reservation in promotion and those condition has been followed by the respondents.
16. He further contends that OM dated 13th August, 1997 issued by DoPT for accelerated promotion and seniority in 17 OA No. 876/2023 service has been quashed by Delhi High Court in Writ Petition No. 3490 of 2010. However, Civil Application No. 662 of 2022 against this decision is pending in Supreme Court. This fact has been deliberately withheld by the applicant. He, therefore, prayed for the dismissal of the application.
17. Respondent no. 6, Alok Kumar appeared but did not file any reply and made oral arguments through his advocate.
18. We have heard learned counsel for the applicant and learned counsel for the respondent nos. 1 to 4 and learned counsel for the respondent no. 5 and learned counsel for the respondent no. 6.
19. Perused the pleadings, read the authorities cited by the learned counsels for their respective parties.
20. Learned counsel for the applicant submitted that the applicant has secured more marks than the respondent nos. 5 & 6 and the candidates at serial no. xvi to xix in the panel of promotion. He contended that the applicant was 18 OA No. 876/2023 not empanelled because of the reservation applied in promotion. He contended that under Article 16(4A) of the Constitution of India, reservation in promotions can be granted only when the State has collected the quantifiable data showing inadequacy of representation and that the efficiency will be maintained. In the case of M. Nagraj (supra), it has been held that the State is not bound to make reservation for SCs/STs in the matters of promotions. If the State wishes to exercise his 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 with Article 335 of the Constitution. No quantifiable data is collected to show that there is inadequacy of representation and, therefore, the respondents have made provision for reservation. Same principle has been enunciated in the case of S. Panneer Selvam and Others versus State of Tamil Nadu and Others, (2015) 10 SCC 292, decided on 27th August, 2015. In the case of Suresh Chand Gautam versus State of Uttar Pradesh and Others, (2016) 11 SCC 113, relying on 19 OA No. 876/2023 the case of M. Nagraj (supra), same principle has been enunciated.
21. He further submitted that in the case of B. K. Pavitra and Others versus Union of India and Others, (2017) 4 SCC 620, decided on 9th February, 2017, it is held that it is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. Same principle has been enunciated in the case of Jarnail Singh and Others versus Lachhmi Narain Gupta and Others, (2018) 10 SCC 396. In the case of Jarnail Singh and Others versus Lachhmi Narain Gupta and Others, (2022) 10 SCC 595, it has been held that the Supreme Court in the case of M. Nagraj (supra), made it clear that the unit for operation of the roster would be the cadre strength. Before providing for reservation in promotions to a cadre, the State is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs. He has also placed reliance on the case of Anupam Yadav and another versus Union of India and others in OA 20 OA No. 876/2023 No. 1435/2018 of Chandigarh Bench of this Tribunal in which following principles have been culled out:-
"57. That on the basis on ratio as decided in M. Nagaraj, (2006) 8 SCC 212 and further explained in Jarnail Singh, 2018 (10) SCC 396 and 2022 SCC Online SC 96, it can be deduced as follows:
a. That unlike Article 16(1), the Article 16(4), 16(4A) and 16(4B) are not a fundamental right, but only enabling, discretionary or affirmative provisions vested in State.
b. That the State cannot be bound to provide the reservation in promotion for SCs and STs category under Article 16(4A), but if it wants to provide said reservation, it has to comply with the following conditions, i.e., i. It has to collect quantifiable w.r.t. backwardness of class. [obliterated by Jarnail Singh, 2018 (10) SCC 396];
ii. It has to define Creamy Layer so that equals could be treated equally. [explained and clarified by Jarnail Singh, 2018 (10) SCC 396 that Creamy Layer is a rule of equity under Article 14 and 16(1) , and not of classification, thus when it is applied to SCs and STs category, it does not affect Article 341 and 342];
iii. It has to collect data w.r.t. overall representation of that class in public employment. [explained and clarified by Jarnail Singh, 2018(10) SCC 396 and 2022 SCC Online SC 96 that the representation doesn't mean representation in proportion to population under Article
330. Test of representation is left to the State because as the post gets higher, it may be necessary to reduce the number of SCs and STs on promotional posts];
iv. it has to comply with Administrative Efficiency under Article 335 (explained by M. Nagraj (2006) 8 SCC 212 that 82nd constitutional amendment has relaxed Article 335, but not obliterated)."
22. He contended that there is no rule or provision to indicate as to how data is to be calculated to determine the 21 OA No. 876/2023 inadequacy of representation. The respondents did not frame any legislation nor did they issue any memorandum. The only source was the Memorandum dated 13th August, 1997 issued by DoPT which has been quashed by Delhi High Court in Writ Petition no. 3490 of 2010. He submitted that according to respondents, the cadre strength is the criteria for collecting quantifiable data to determine inadequacy of representation. He states that in the case of The State of Punjab & Ors. versus Davinder Singh & Ors. in Civil Appeal No. 2317 of 2011 (Supreme Court), it has been held that "the inference in M. Nagraj (supra) that cadre must be taken as a unit to determine inadequacy of representation based on the above observations in the case of R.K. Sabharwal and Ors. versus State of Punjab and Ors. 1995 AIR 1371 dated 10th February, 1995, in our respectful opinion, is misplaced. The cadre as a unit was considered only for the purpose of preparation of roster to draw a balance between the reserved and open seats. This Court did not hold that cadre must be used as a unit for the purpose of determining the inadequacy of representation. In fact, R.K. Sabharwal (supra) says to the 22 OA No. 876/2023 contrary. R.K. Sabharwal (supra) observed that the State Government may take the total population of a particular Backward Class and its representation in the State Services while determining adequacy of representation."
23. He contended that the respondents did not do this exercise and illegally provide reservation in the matter of promotion. He further submitted that when there is an illegality in the selection process, there is estoppel. For this purpose, he placed reliance on the case of Dr (Major) Meeta Sahai versus State of Bihar and Others, (2019) 20 SCC 17 in which it has been held thus:-
"16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576....
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."23 OA No. 876/2023
24. He contended that these observations make it clear that there is no estoppel against law. The respondent without considering the fact that quantifiable data has not been collected as mandated in the case of M. Nagraj (supra), has illegally provided reservation in the matter of promotion. He submitted that, therefore, when there is illegality, it can be challenged at any time. For this purpose, he placed reliance on the case of All Indian Equality Forum and Others versus Union of India and Others in OA No. 727/2013 dated 29th November, 2018 of this Bench of this Tribunal in which it has been held that when illegal actions are taken by respondents, challenge can be raised at any point of time and when challenge is successfully made, that will render the initial action of respondents null and void. It is, therefore, not necessary to implead all the respondents who are going to be affected.
25. He further contended that the applicant has scored 160.07 marks whereas the candidates at serial no. xvi to xviii have scored much lesser marks than the applicant. At serial no. xvi, Radheshyam Meena has scored 160, Serial 24 OA No. 876/2023 no. xvii, Sanjeev Kumar has scored 159.18, Serial no. xviii, Radheshyam Meena has scored 157.15 marks and serial no. 19, Rajesh Kashinath Jatua has scored 151.30 marks. He submitted that all these candidates have scored lesser marks than him and he has impleaded only Rajesh Kashinath Jatua as respondent no. 5 as he will be the only affected person if applicant is granted the relief. He further contended that in unreserved category, Alok Kumar has scored 160.05 marks and he has been empanelled. The applicant had answered question no. 311 correctly and he has annexed material to this OA to indicate that the applicant had correctly answered question no. 311. He contended that the Written Test was conducted on 25th June, 2023 and answer key was uploaded on the website of NAIR on 28th June, 2023 and answers to question nos. 311 and 209 were notified as correct answers. However, another answer key was uploaded on the NAIR website on 19th September, 2023 in which the answer to question no. 311 was altered from Option 1 to Option 2 and question no. 209 was all-together deleted without any justification. He submitted that if answer to question no. 311 is considered 25 OA No. 876/2023 to be correct, he would score 1.38 marks more which will take his total to 161.45 marks (in the application, it is incorrectly mentioned as 161.57) which is higher than Alok Kumar, respondent no. 6. He further submitted that question no. 209 has been deleted without giving any justification. In these circumstances, the application will have to be allowed. The applicant be promoted as AEN Group 'B'.
26. Learned counsel for the respondent nos. 1 to 4 submitted that the respondents have prepared a chart showing inadequacy of representation. She submitted that the respondents have prepared this chart showing inadequacy of representation so far as SCs/STs are concerned on the basis of cadre taking as a unit for determining inadequacy of representation. Therefore, the objection that the respondents have not collected a quantifiable data to show inadequacy of representation is without any base. She further submitted that the respondents have assessed answer to question no. 311 as incorrect. The applicant did not raise any objection as regards the answer to Q.No. 311 within the time limit 26 OA No. 876/2023 prescribed. Therefore, the representations made thereafter, have no value. Question no. 209 was correctly deleted by following proper procedure as per guidelines contained in Board's letter no. E(GP)2022/2/4 dated 26th October, 2022 (RBE no. 134/2022) and 28th November, 2022. The benefit of this question has been accorded to those candidates who have attempted the deleted questions. The procedure is explained in the letter dated 18th March, 2023 (Annexure- RJ A2). The procedure adopted is explained with the following illustrations:-
i. This procedure will arise only if the deleted question has been attempted by the candidate. If the candidate has answered either all 100 or less than 100 questions, but the deleted question is not one of the attempted questions. there is not any impact for him/her and his/her final score has been determined out of 100.
ii. If the candidate has attempted 100 questions and two of these have been subsequently omitted /deleted, he has been evaluated out of 98, and finally re- calculated out of 100.
iii. If the candidate has attempted, say 90 questions and two of these have been subsequently omitted/deleted, he has been evaluated out of 98, and finally re-calculated out of 100."
27. She contended that by applying this procedure, the marks of the applicant have been calculated and he was found to have scored 160.07 marks which is below the 27 OA No. 876/2023 marks secured by respondent no. 6 and, therefore, the applicant has not been selected. She further contended that the DoPT has issued OM dated 12th April, 2022 in which procedure to be followed prior to effecting reservations in the matter of promotions by all departments of the Central Government have been prescribed and these promotions will be subject to further orders that may be passed by the Supreme Court in Jarnail Singh batch of cases. She submitted that the respondents have carried out the promotions in terms of this OM and, therefore, they are subject to this OM.
28. She further submitted that the applicant with open eyes participated in the selection process and challenged the selection process only after he was not selected. Had he been selected, he would not have dreamt of challenging the selection process. For this purpose, she placed reliance on the case of Dhananjay Malik and Others versus State of Uttaranchal and Others, (2008) 4 SCC 171 dated 5th March, 2008. The applicant is, therefore, estopped from challenging the selection process.
28 OA No. 876/2023
29. Learned counsel for the respondent no. 5 submitted that in the advertisement, it is specifically mentioned that 2 posts for SC, 2 posts for ST and 01 post for PwBD candidates are reserved. The applicant appeared for the examination with full knowledge that reservation was provided in the matter of promotion in the advertisement dated 20th February, 2023. The applicant did not challenge the advertisement for the reasons best known to him. No plausible explanation is forthcoming from the applicant as to why he did not challenge the advertisement when reservation in the matter of promotion was provided. He raised this objection only when he failed in the examination. If the applicant had succeeded in the examination, surely, he would not have challenged the selection process. Therefore, now, the applicant cannot turn around and say that the advertisement was illegal as reservation was provided in matters of promotion. She submitted that reservation in promotion is permissible in terms of Section 16(4A) of the Constitution of India, the only rider is that there should be quantifiable data to show that there is inadequacy of representation for SCs/STs. The 29 OA No. 876/2023 respondents have collected the said data on the basis of the cadre as a unit for determining inadequacy of representation. She submitted that the applicant has not impleaded other affected candidates at serial nos. xvi to xviii. It is settled law that affected party has to be impleaded as the respondents. The applicant has impleaded only respondent no. 5 and, therefore, the petition is bad for nonjoinder of necessary parties. For this purpose, she has placed reliance on the case of Moreshar s/o Yadaorao Mahajan versus Vyankatesh Sitaram Bhedi (D) THR. LRS. And Others in Civil Appeal Nos. 5755-5756 of 2011 (Supreme Court).
30. She further submitted that quantifiable data as regards inadequacy of representation can be collected on the basis of cadre taking it as a unit. She placed reliance on the case of Shri Rahul K. Dhumal versus Union of India and Others in OA No. 638/2017 of this Bench of this Tribunal dated 05th June, 2024.
31. Learned counsel for the respondent no. 6 submitted that the applicant did not challenge the advertisement 30 OA No. 876/2023 despite having knowledge of the fact that reservation was provided in the matter of promotion. Therefore, he has acquiesced to the process of selection. He is, therefore, estopped from challenging the selection process. He further contended that the representations of the applicant from page- 64 to 80 clearly show that he did not raise the issue of reservation. His representations pertain to the marks illegally deleted and deletion of question no. 209. There is no whisper about the reservation in promotion. Only after getting legal advise, the applicant has taken a ground for challenging the selection process. He placed reliance on the case of Union of India and Others versus N. Murugesan and Others, (2022) 2 SCC 25 dated 07th October, 2021 (Supreme Court).
32. In reply, learned counsel for the applicant submitted that the respondents claimed that they have collected the data to show inadequacy of representation. This is assessment of vacancies for selection to Group 'B' Posts of Assistant Engineer for the selection period from 01st January, 2023 to 31st December, 2024. Moreover, this is not prepared by the State. It is done by some local 31 OA No. 876/2023 authority. Therefore, this cannot be elevated to the inadequacy of representation prepared by the State. He contends that this data is prepared by Dy.CPO(G), Rajesh Kumar Chaudhari, PCPO, Surendra Kumar and PCE, Pradeep Kumar Garg. He submitted that, therefore, this cannot be treated as inadequacy of representation.
33. We have given thoughtful consideration to the submissions made by the learned counsels for their respective parties.
34. Perused the record and went through the case laws cited by the learned counsels for their respective parties.
35. Advertisement dated 20th February, 2023 for the selection to the post of AEN (LDCE 30%) was published vide Annexure A-2. From this advertisement, it is clear that reservation was provided for promotion to the Group 'B' Post of AEN for the assessment cycle 01st January, 2023 to 31st December, 2024. As per the advertisement, 02 posts for SC, 02 posts for ST and 01 post for PwBD candidates were reserved. Thus, in all, five posts were reserved. In terms of Section 16(4A) of the Constitution of India, the 32 OA No. 876/2023 State can make any provision for reservation in matters of promotion, with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Constitutional validity of Section 14A was challenged in the case of M. Nagraj (supra). While upholding the constitutional validity of Article 16(4A), in para 123 of the case of M. Nagraj (supra), Supreme Court held thus:-
123. However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters 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 with 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."33 OA No. 876/2023
36. From these observations, it is clear that the State is not bound to make reservation for SCs/STs in matter of promotion but if the State decides to make provision for reservation in matters of promotion, it has to collect quantifiable data showing inadequacy of representation of that class in public employment in addition to compliance with Article 335 of the Constitution. In the case of Jarnail Singh and Others versus Lachhmi Narain Gupta and Others, (2022) 10 SCC 595, in para 38, it has been held thus:-
38. In the Office Memorandum dated 2-7-1997, the Union of India set out the principles for making and operating post-based rosters, in which it has been expressly stated that cadre is to be construed as the number of posts in a particular grade. It is made clear that rosters have been prepared grade-wise which are reviewed on a yearly basis and that reservation in promotions is implemented on the basis of these rosters, which operate grade-wise. In M. Nagaraj, this Court approved that the percentage of reservation in promotions was to be applied to the entire cadre strength, as held in R.K. Sabharwal While doing so, this Court in M. Nagaraj made it clear that the unit for operation of the roster would be the cadre strength.
Before providing for reservation in promotions to a cadre, the State is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or "class"/"group" but it should be relatable to the grade/category of posts to which promotion is sought. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data 34 OA No. 876/2023 pertaining to representation of SCs and STs is with reference to the entire service."
37. It was argued that cadre is the unit for determining the inadequacy of representation. However, the Constitutional Bench of the Supreme Court in the case of Davinder Singh & Ors. (supra), clarified that the inference in M. Nagraj (supra) that cadre must be taken as a unit to determine inadequacy of reservation based on the observations in R.K. Sabharwal (supra) is misplaced. The cadre as a unit was considered only for the purpose of preparation of roster to draw a balance between the reserved and open seats. In M. Nagraj (supra), it was not held by the Supreme Court that cadre must be used as a unit for the purpose of determining inadequacy of representation. The inadequacy of representation in the services of the State is an indicator to determine the backwardness of the class in the services of the State. When the cadre-strength is used, the inadequacy of representation of the class is not determined. Rather, it determines the inadequacy of representation in a cadre, thereby, merging the distinction between quantitative and 35 OA No. 876/2023 qualitative representation. It was further held that the observations in M. Nagraj (supra) that adequate representation of the class or group must be measured against the cadre is contrary to the plain language of Articles 16(4) and 16(4A). Both the provisions use the phrase "not adequately represented in the services under the State."
38. Thus, as per the Constitutional Bench judgement of the Supreme Court in the case of Davinder Singh & Ors. (supra), cadre should not be taken as a unit to determine inadequacy of representation. The State should take the total population of a particular backward class and its representation in the State services while determining inadequacy of representation.
39. It is the case of the respondents that they have collected the data to show inadequacy of representation. This data is produced at Annexure R-1. From its title, it is clear that it is Assessment of Vacancies for Selection to Group 'B' Posts of Assistant Engineer for the Selection Period from 01st January, 2023 to 31st December, 2024. 36 OA No. 876/2023 This does not say that it is the quantifiable data showing inadequacy of representation under the services of the State. In these circumstances, it cannot be said to be a quantifiable data.
40. Now, the question is whether the applicant can challenge the selection process.
41. It is settled law that while challenging the selection process, the applicant has to implead all the candidates who are going to be affected because of the orders that will be passed in the matter. The affected persons are going to be a necessary party for they are the ones who are going to be affected because of the orders that will be passed in the matter. The respondents have raised the objection that the applicant has not impleaded the other three respondents who are at serial nos. xvi, xvii and xviii who have been granted promotion on the ground of reservation. These three officers are going to be affected by the orders passed by this Tribunal. It is trite that any party who is likely to be affected by the orders of the Court/Tribunal is a necessary party and has to be impleaded. Therefore, candidates at 37 OA No. 876/2023 serial no. xvi to xix are necessary parties to this OA. Since respondents have not added them as party respondents, the OA is bad to that extent. Therefore, the promotion to the Post of AEN of respondent no. 5 cannot be challenged by the applicant.
42. Now the question is whether the applicant has correctly answered question no. 311. The applicant has contended in the OA that question no. 311 was as under:-
"How may Sub-Committees are there in the Parliament Committee on Official Langauage?
(1) 03' (2) 04 (3) 02 (4) 05"
43. The correct answer to the said question was option no. 1- 03 as per the answer key. The applicant has answered option no. 1 i.e. 03 and that was the correct answer. He contends that the response sheet / answer key was published on the next date. It shows that the answer according to the answer key was option no. 1. The 38 OA No. 876/2023 applicant had also answered option no. 1. Therefore, the answer according to the answer key was correct.
44. In reply, respondents contend that for raising the objection on questions / answer keys after the examination, the objection tracker was live from 10.00 hrs of 28th June, 2023 to 17.00 hrs of 30th June, 2023. Objections / representations received through letters, emails etc. were not entertained. They further contend that on the basis of objections received in the objection tracker, the respondents revised the answer to question no. 311 and it was changed subsequently on 19th September. 2023. This clearly shows that the revision in respect of answer to question no. 311 was carried out and the answer subsequently declared was option no. 2 on account of the objections raised. Learned counsel for the applicant submits that option no. 1 i.e. 3 is the correct answer to Q.No. 311. Learned counsel for the respondents disputes this position. This Tribunal is not an expert to decide which is the correct answer to Q.No. 311. It is the job of the experts and not of this Tribunal. The respondents have not explained as to on what basis they initially mentioned in 39 OA No. 876/2023 the answer key (option no. 1) as the correct answer and on what basis they revised the answer to option no. 2. They have not placed anything on record to that effect.
45. So far as Q.No. 209 is concerned, the respondents contend that the deletion of Q.No. 209 was done by NAIR/Vadodara only after following due procedure duly notified by them. Such deletion of question is applicable to all candidates who attempted the question and it is not restricted to the applicant only.
46. The respondents have not explained as to what procedure they have followed for deleting the Q.No. 209. They have simply alleged in the reply that a proper procedure as prescribed by NAIR was followed. The applicant in the rejoinder has produced at Annexure- RJ A- 2, the procedure for treatment of deleted questions. The para in respect of the treatment of deleted questions is reproduced in para no. 26 of this judgment. It shows that incorrect questions are to be deleted and treatment is to be given to all the candidates who attempted the question in the manner provided in para 5(i), (ii) and (iii). The 40 OA No. 876/2023 respondents have not explained as to how this question was incorrect. If it is incorrect, how the marks of the applicant and other candidates who attempted this question have been assessed. The respondents should have given the details as regards the position of marks of the applicant and other candidates (who attempted this question) after deletion of this question no. 209. The respondents have not done that. They have simply directed deletion of this question. The question no. 209 was like this:-
"As per IRPWM 2020, which statement is correct in relation to Certificate of Competency issued to the staff?
(1) He should be literate (2) He should have knowledge of Hindi or other local language (3) He should have passed the prescribed Medical test (4) All of the above
47. According to the applicant, the correct answer was option no. 4 i.e. All of the above. How this question was incorrect is not explained by the respondents. Therefore, it has to be said that the deletion of the question was 41 OA No. 876/2023 incorrect. In these circumstances, we do not think that the deletion of question was in accordance with the procedure laid down by the respondents.
48. By the Order dated 08th January, 2025, we had directed the respondent nos. 1 to 4 to give information in tabulated form indicating how allowing of two questions would impact the result of all the candidates in general and their comparative ranking. The respondents did not give the information in tabulated form despite giving three weeks' time. In this view of the matter, it would be appropriate to direct the respondents to again undertake the exercise of reassessing the Q.No. 311 and Q.No. 209. In view of this, we allow the application partly.
49. Thus, application to the extent of respondent no. 5 is dismissed.
50. Respondents are directed to set up Three-Member Committee of Experts to assess the Q.No. 311 and Q.No.
209. The Committee shall also suggest if answer to Q.No. 311 is as per the allegations of the applicant, and if deletion of Q.No. 209 is improper, whether answer given by 42 OA No. 876/2023 applicant to this question is correct, how it would impact all the candidates and accordingly, pass fresh orders and if the applicant scores more marks than the other candidates, he should be given appointment.
(Santosh Mehra) (Justice M.G.Sewlikar)
Member (A) Member (J)
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