Rajasthan High Court - Jodhpur
Surgyan Meena & Anr vs The Union Of India & Ors on 9 May, 2017
Bench: Chief Justice, Pushpendra Singh Bhati
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 9657 / 2014
1. The Union of India through the General Manager, HQ Office,
North Western Railway, Malviya Nagar, Near Jawahar Circle, Jaipur.
2. Railway Board through its Chairman, Railway Bhawan, New
Delhi.
3. Senior Divisional Personnel Officer, North Western Railway,
Jodhpur Division, Jodhpur.
----Petitioners
Versus
1. Shri Ram Sukh Chaudhary s/o Shri Bhagaram Chaudhary,
resident of c/o Hema Ram Chaudhary, H.No.183, Indira Colony,
Civil Air Port Road, Jodhpur.
2. Shri Navratan Sen s/o Shri Ghanshyam Sen, r/o K-716,
Street No.16, Sen Colony, Chandna Bhaker, Jodhpur.
----Respondents
3. Shri Surgyan Meena s/o Shri Gandor Meena, r/o House No.6,
Ramapeer Colony, Ratnada, Jodhpur.
4. Shri Roopendra Kumar s/o Shri Mishri Lal, r/o c/o Shri
Bhagirath Goyal, House No.6-H 29Y Kudi Bhagtasni, Housing
Board, Jodhpur.
----Proforma-Respondents
Connected With
D.B. Civil Writ Petition No. 733 / 2015
1. Surgyan Meena son of Shri Gandor Meena, aged about 38
years, Resident of House No.6, Ramapeer Colony, Ratanada,
Jodhpur.
2. Roopendra Kumar son of Shri Mishri Lal, aged about 44
years, Resident of C/o Shri Bhagirath Goyal, House No.6-H 29Y
Kudi Bhagtasani, Housing Board, Jodhpur.
------Petitioners
1. The Union of India through the General Manager, HQ Office,
North Western Railway, Malviya Nagar, Near Jawahar Circle, Jaipur.
2. Railway Board through its Chairman, Railway Bhawan, New
Delhi.
3. Senior Divisional Personnel Officer, North Western Railway,
Jodhpur Division, Jodhpur.
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4. Shri Ram Sukh Chaudhary son of Shri Bhagaram Chaudhary,
Resident of C/o Hema Ram Chaudhary, H.No.183, Indira Colony,
Civil Air Port Road, Jodhpur.
5. Shri Navratan Sen son of Shri Ghanshyam Sen, R/o K-716,
Street No.16, Sen Colony, Chandna Bhaker, Jodhpur.
-----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Kamal Dave for Union of India
Mr.Dhirendra Pandey
Mr.S.K.Malik
For Respondent(s) : Mr.J.K.Kaushik
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 09/05/2017
1. Union of India and Surgyan Meena impleaded as respondent no.4 in OA No.203/2013 have challenged the order dated 8 th July, 2014 passed by the Central Administrative Tribunal allowing the OA filed by the contesting respondents in the two captioned writ petitions.
2. The Railway authorities issued a notification inviting applications to fill up 9 vacant posts of Loco Inspector vide letter dated 15th February, 2013. The grievance of the applicants was to the Railway Board circular no.114/97 amended by the corrigendum no.59/01 as per which a method of roster point, being at variance with a DoPT model roster, showed 4 posts reserved for SC and 2 for ST as against 3 for SC and 1 for ST if DoPT roster point model circular had to be applied.
3. The Tribunal has held that the issue was no longer res 3 integra and was covered by a Division Bench judgment of this Court reported as RLW 2003(2) Raj.1203 UOI V/s Rajendra Kumar Gaur.
4. Though notice was issued of the petition seeking leave to appeal filed against the judgment of the Division Bench of this Court, but ultimately the petition was disposed of on a concession made before the Supreme Court and thus the binding nature of the Division Bench judgment qua this Court remains.
5. Notwithstanding that, we have perused the decision of the Division Bench. The decision brings out an anomaly which results if the Railway Board circular is to apply. Paragraphs 10 to 14 of the Division Bench judgment would be relevant to be noted and we quote the same:
"10. To find out whether the office memorandum issued by the DOPT is binding upon the Railway Board, there is no dispute that the DOPT issued office memorandum as back as on 6.1.1981 saying that if other Ministries/Department intend to depart from the policies laid down by the Department of Personal, it is mandatory for them to consult the Department of Personnel in terms of Sub-rule 4 of Rule 4 of the Transaction of Business Rules, otherwise the policy laid down by the Department of Personnel are binding on them. This direction was reiterated in office memorandum dated 1.1.1998. It is also relevant to mention here that even during course of arguments also it was not the case of the petitioner that the Railway Board is not bound by the policy decisions of DOPT. Further these office memorandum are not under challenge by the Railway Board. This is also not the case of the Railway Board that before issuing memorandum dated 21.8.1997, the Railway Board consulted the DOPT as required under Sub-rule 4 of Rule 4 of the Transaction of Business Rules. Therefore, the tribunal was right in holding that the decision of DOPT was binding upon the Board.
11. So far as the contention of the learned counsel for the petitioners that the Railway Board has powers to issue orders under the Railway Establishment Code and they are treated as law is concerned, it appears to be applicable to the 4 Railway Establishment whereas the Transaction of Business Rules govern the working of the various Ministries and Departments of the Union of India under the statutory provisions of the Rules and it is not the case of the even Railway Board that, the Railway Board can refuse to follow the policies laid down by the DOPT. Therefore, the policies laid down by the DOPT are binding upon the Railway Board and it cannot be said that the Railway Board can depart from the policies laid down by the DOPT.
12. Now the question arises whether there was any deviation from the policies laid down by the DOPT by the Railway Board by issuing office memorandum dated 21.8.1997. For this, the submission of the learned counsel for the petitioners is of two folds; one is that the office memorandum of the Railway Board dated 21.8.1997 is not having any variance from the policy laid down by the office memorandum of the DOPT dated 2.7.1997. According to the learned counsel for the petitioners, the policy is to provide reservation of the candidates of SC/ST/OBC and this reservations should not exceed in total beyond 50%. By office memorandum dated 21.8.1997, the Railway Board has not provided for reservation beyond the limit of 50%. The roster has been prescribed by the Railway Board to give 15% and 7.5 representation of the SC and SC candidates in small cadre which is also in consonance of the policy decision and in taking into account the legal aspects which were considered and decided by the Hon'ble Apex Court.
13. To find out whether there is any variance between two office memorandums, we have to find out from the two orders itself. In the office memorandum of the DOPT dated 2.7.1997, in para No. 4 of the memorandum, principles for preparing the roster has been narrated and in sub-para (e) of para 4 a specific point of providing method for preparation of the roster in small cadres upto 13 posts was considered wherein it is provided that in small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories. In such cases, the administrative Ministries/Departments may consider grouping of posts in different cadres as prescribed in DOPT's office memorandum No. O.M. No. 42/21/49 NGS dated 28.1.1952 and subsequent orders and prepare common roster for such groups. It was also provided that in the event it is not possible to resort to such grouping, enclosed rosters (Appendices to Annexure-11, III and IV) for cadre strength upto 13 posts may be followed. In para No. 7, it is specifically mentioned that all Ministries/Departments are requested to initiate immediate action to prepare rosters 5 and operate them according to these guidelines. The model roster was drawn up keeping in mind two fundamental principles; (1) the reservation for the entitled categories is to be kept within the prescribed percentage of reservation and (2) the total reservation should in no case exceed 50% of the cadre. The controversy in this case is for the vacancies in small cadres, for which the provision has been made in para 4(e) of the memorandum of DOPT, wherein it is specifically provided that in the event of vacancy of small cadres of upto 13 posts, the administrative Ministries/Departments may consider grouping of posts in different cadres as already prescribed and in the event it is not possible to resort to such grouping, as per the enclosed rosters and Appendices annexed with the office memorandum of the DOPT provides model roster for cadre strength upto 13 posts. Therefore, it is clear from the above memorandum that in memorandum, there is a specific provision for providing roster for promotion for small cadre strength upto 13 posts, whereas in the office memorandum issues by the Railway Board dated 21.8.1997, there is a significant change in the matter of small cadre reservation upto 13 posts. Para 4(e) of the order of the DOPT dated 2.7.1997 reads as under :
"4(e) In small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories. In such cases, the administrative Ministries/Departments may consider grouping of posts in different cadres as prescribed in this Department's O.M. No. 42/21/49 NGS dated 28.1.1952 and subsequent orders reproduced at pages 70 to 74 of the Brochure on Reservation for Scheduled Castes & Scheduled Tribes (Eighth Edition) and prepare common rosters for such groups. In the even it is not possible to resort to such grouping, the enclosed rosters (Appendices to Annexures- II, III & IV) for cadre strength upto 13 posts may be followed. The principles of operating these rosters are explained in the explanatory notes."
Whereas, para 4(d) of the office memorandum dated 21.8.1997 of the Railway Board reads as under :-
"4(d) In the small cadre upto '13' posts the method prescribed for preparation of rosters does not permit the reservation to be made for both categories SC/ST. Therefore, enclosed roster (Annexure-III) for cadre strength upto 14 posts may be followed. The principles of operating the rosters has been detailed in the Explanatory Notes. The reservation even in single post have been held as constitutional and valid recently by the Hon'ble Supreme Court in the case of Union 6 of India and Ors. v. Madhav s/o Gajanan Chouhbal and Ors. (JT 1996 (9) SC 320)."
14. What has been done by the Railway Board is that instead of providing roster for upto the 13 posts, it has provided for the cadre strength upto 14 posts resulting into radical change in the replacement position of the SC/ST candidate. In DOPT's Model roster in the cadre strength of number of two posts/vacancies, for SC candidates, comes at 5th place and ST candidates comes at 8th place, whereas in the office memorandum of the Railway Board dated 21.8.1997, in the cadre strength, the post for SC candidate comes at 2nd place and for ST candidates it comes at 6th place. Again SC candidate at 10th place. In cadre strength of three, the posts comes to the SC candidate at 4th place and for the ST candidate at 11th place, whereas in the memorandum of the Railway Board, for cadre strength of three, the post to the SC candidates comes at 1st place, for ST at 5th place. Again for SC comes at 9th place. Therefore, the sequence of availability of the post to SC/ST candidates has been changed by the memorandum of the Railway Board. No reason has been assigned in the order of the Railway Board for departing from the roster prescribed by the DOPT and no reason has been given to provide for roster upto 14 posts instead of upto 13 posts. Therefore, it is clear from the memorandum issued by the DOPT and the memorandum issued by the Railway Board that the Railway Board has not adopted the roster which is at material variance from the roster issued by the DOPT. The submission of the learned counsel for the petitioner is factually wrong."
6. Adopting the reasoning of the Division Bench which in any case binds a co-ordinate bench, the two captioned writ petitions are dismissed.
7. No costs.
(DR.PUSHPENDRA SINGH BHATI)J. (PRADEEP NANDRAJOG)CJ. Parmar