Central Administrative Tribunal - Delhi
Yogesh Kumar vs Kvs on 14 August, 2024
1
Item No. 21(C-3)
O.A. No.922/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.922/2023
Order reserved on : 31.07.2024
Order pronounced on : 14.08.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Yogesh Kumar,
Assistant Section Officer,
Kendriya Vidyalaya,
Kamla Nehru Nagar,
Ghaziabad (1st Shift) (Group 'B'),
Aged about 47 years
S/o Late Dhani Ram, 4/12,
Second Floor, Nehru Nagar,
New Delhi-110065.
... applicant
(By Advocate: Mr. Dinesh Kumar Tandon)
VERSUS
1. The Commissioner,
Kendriya Vidyalaya Sangathan,
18-Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016.
2. The Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
18-Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016.
3. The Assistant Commissioner (Admn./RPS),
Kendriya Vidyalaya Sangathan,
18-Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016.
... Respondents
(By Advocate : Mr. N.K. Bhatnagar with Ms. Rupali
and Ms. Pratishtha Mazumdar)
2
Item No. 21(C-3)
O.A. No.922/2023
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The applicant was initially appointed as Assistant in Kendriya Vidyalaya Sangathan (KVS) on 04.03.2014 through direct recruitment. In the year 2016, the post held by the applicant was re-
designated as Assistant Section Officer (ASO). On 17.04.2018, the respondents issued a notification for promotion to the post of Section Officer through Limited Departmental Competition Examination (LDCE). The applicant registered himself online and thereafter, participated in the said examination. He belongs to Reserved Category (SC) and in terms of the result notice, he obtained 81.5436 marks.
2. Learned counsel for the applicant stated that in terms of the result annexed at Page 24 dated 24.12.2018, one candidate who belongs to SC category has obtained 98.6577 marks as against the cut off for UR category and therefore, in terms of the law laid down by the Hon'ble Apex Court, he should have been promoted against the UR category leaving one vacancy for the applicant in the SC category. 3 Item No. 21(C-3) O.A. No.922/2023 Since the respondents have promoted the candidate who had obtained 98.6577 marks under the SC category itself, the applicant has been deprived of the promotion. Aggrieved by the same, the applicant has preferred the instant OA seeking the following reliefs:-
"(i) quash the impugned letter dated 14-02-
2023 as contained at Annexure No. A-1 to the Original Application.
(ii) direct the respondents No.1 to issue the promotion to the applicant for the post of Section Officer from the panel for the year 2018 under SC category with consequential benefits from the date the candidates joined on the post in the year 2018.
(iii) pass any order(s) or further order(s) or direction(s) as be deemed just and proper to meet the ends of justice.
(iv) allow the Original Application with cost." 3.1 Learned counsel for the applicant submitted that in light of the decision dated 10.02.1995 of the Hon'ble Apex Court in R.K. Sabharwal & Ors. Vs. State of Punjab & Ors. 1995 SCC (2) 745, the respondents were obliged to give the vacancy to the candidate who have participated under the reserved category (SC) and had obtained higher marks than the last selected candidate in the UR category, thereby, leaving one vacancy under the SC category and the 4 Item No. 21(C-3) O.A. No.922/2023 applicant makes his claim on the said vacancy. Para 11 of the same is reproduced hereinbelow:-
"11. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at various roster points are filled from amongst the scheduled Casts/ Scheduled Tribes candidates, 2 posts arc filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by December 31, 1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the 1996, 25 more persons belonging to the general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Casts and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster-point it would be open to the State Government to carry forward the point in a just and fair manner."
3.2 Learned counsel for applicant further drew strength from the decision of the Coordinate Bench of 5 Item No. 21(C-3) O.A. No.922/2023 the Tribunal in OA No. 571/2019 decided on 15.12.2020. Paras 15, 17 and 19 thereof read as under :-
"15. The controversy, raised in the instant OA, lies in a narrow compass: whether a reserved category candidate who is next in turn for promotion on his/her own merit, can be promoted on an unreserved vacant post.
The issue was deliberated in R.K. Sabharwal (para-6.1 supra) and was settled wherein it was held that it is incumbent on State to reach a conclusion that backward classes, for whom reservation is made, are not adequately represented in State Services. Thereafter, post based roster needs to be followed especially for initial recruitment, wherein certain roster points need to be earmarked to the intended reserved community, to the extent of reservation to be achieved on running basis, wherein the roster point, which is not meant for a reserved community, can be occupied by a General as well as a reserved community candidate depending upon his/her turn in the select panel prepared as per the method of appointment by promotion i.e. whether seniority-cum-suitability method or as per merit based method. As against this, the roster point for reserved community must necessarily be filled by a candidate belonging to that community only.
This position has remained unchanged.
xxx xxx xxx xxx
17. The respondents have referred the issue of promotion of applicant, for clarification to DoPT as well as Ministry of Health & Family Welfare, who in turn have also consulted Ministry of Law & Justice for clarity. They had clarified to act as per DoPT directives. The DoPT directives were issued on 11.07.2002, 31.01.2005, 15.06.2018 (para-8 supra).6
Item No. 21(C-3) O.A. No.922/2023 In none of these directives there is any prohibition that a reserved category candidate cannot be promoted in his/her turn on merit for a vacancy which may be earmarked for unreserved category.
Therefore, while an unreserved category candidate can be promoted against an unreserved vacancy only, a reserved category candidate can be promoted to a reserved vacancy as per reservation as well as he/she can be considered for promotion against an unreserved vacancy if he/she happens to be the next candidate in line for promotion on merit.
xxx xxx xxx xxx
19. The respondents are directed to consider the applicant for the vacant post of Hindi Officer by constituting a review DPC. In case she is found fit for promotion, she shall be granted promotion from the same date her juniors were promoted, and she shall also be granted pay fixation at par with her juniors, who were promoted vide orders dated 29.01.2019. The due arrears shall also be paid.
This entire exercise shall be completed by the respondents within a period of 08 weeks from the date of receipt of a certified copy of this order. No costs.
Pending MA also stands disposed of."
4. Pursuant to notice, the respondents have filed their reply. Learned counsel for respondents vehemently opposed the present OA and submitted that in case the submissions of learned counsel for the applicant were to be accepted, there would be one 7 Item No. 21(C-3) O.A. No.922/2023 person who has been extended promotion in the unreserved category who would have to be reverted and since the said person has not been arrayed as party respondent, the relief claimed by the applicant cannot be extended in the absence of this person. Therefore, the OA cannot be entertained. He further submitted that the notification dated 17.04.2018 with respect to the promotion for the post of Section Officer through the LDC Examination was issued in the year 2018 and the applicant preferred application in the year 2023 and, therefore, the same is hopelessly barred by limitation.
5. We have heard the learned counsel for the parties and gone through the pleadings available on record.
6. The undisputed facts in the OA are that the applicant belongs to the SC category. He has obtained 81.5436 marks and one candidate belonging to the SC category has obtained 98.6577 marks, which are higher than the marks obtained by the last selected candidate in the unreserved category. According to us, in terms of the decision of the Hon'ble Apex Court in R.K. Sabharwal (supra), the 8 Item No. 21(C-3) O.A. No.922/2023 respondents were obliged to consider the candidature of the SC candidate who has obtained 98.6577 marks under the unreserved category, giving way to the applicant. The submission of the learned counsel for the respondents based on the counter reply is that the respondents have prepared the seniority list in accordance with the DOP&T OM dated 15.06.2018. According to us, this averment is misplaced as this OM deals with promotion from reserved to reserved and unreserved to unreserved and also in matters of promotion while in the present facts, this is a situation where the reserved category candidate has obtained higher marks than the unreserved category candidate.
7. We are confronted with a situation where in case the relief is awarded to the applicant i.e. Shri Yogesh Kumar, the SC candidate who has obtained higher marks i.e. 98.6577 will be shifted against the unreserved vacancy and the last selected candidate in the unreserved list would have to forego his promotion, who is not a party before us.
8. On 16.05.2024, after issuance of notice, on consideration on the prayer of interim relief, the 9 Item No. 21(C-3) O.A. No.922/2023 promotion to the post of Section Officer pursuant to the LDC Examination was made subject to the final outcome of the present OA. Therefore, the objection that the affected person is not arrayed as party respondents, according to us, is misplaced. We reiteriate that by order dated 16.05.2023, interim protection has already been granted to the applicant, stating that any promotion made to the post of Section Officer shall be subject to the final outcome of the present OA.
9. Be that as it may, the applicant who belongs to the SC category and has obtained his merit is entitled to be promoted to the post of Section Officer under the LDC Examination. However, the person who may be an affected one, according to us, also needs some protection as he has been promoted and continued for a reasonable long period of time. To give benefit to one, the other person cannot be put to disadvantage for the fault on the part of the respondents.
10. Therefore, the OA is allowed with the following directions:-
10
Item No. 21(C-3) O.A. No.922/2023
(i) The applicant shall be included in the list of selected candidates against the SC category for the LDC Examination held in the year 2018.
(ii) Shri Subodh Kumar Saroha, a candidate in the SC category who has obtained higher marks than the last selected candidate under the unreserved category would be treated as unreserved for this promotion.
(iii) The last selected candidate in the general category, who will make way to the promotion of the applicant in compliance of the above directions at (i) and (ii), shall be extended the supernumerary post in the unreserved category on the post of Section Officer, till a regular post is created.
(iv) The applicant shall be entitled to all the consequential benefits including seniority albeit on notional basis.
(v) The above directions shall be complied with within a period of four weeks from the date of receipt of a certified copy of this order.11
Item No. 21(C-3) O.A. No.922/2023
11. The OA stands allowed in the aforesaid terms. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
'rk'
1
Item No. 21(C-3)
O.A. No.922/2023
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.922/2023 Order reserved on : 31.07.2024 Order pronounced on : 14.08.2024 Hon'ble Mrs. Pratima K. Gupta, Member (J) Hon'ble Dr. Chhabilendra Roul, Member (A) Yogesh Kumar, Assistant Section Officer, Kendriya Vidyalaya, Kamla Nehru Nagar, Ghaziabad (1st Shift) (Group 'B'), Aged about 47 years S/o Late Dhani Ram, 4/12, Second Floor, Nehru Nagar, New Delhi-110065.
... applicant (By Advocate: Mr. Dinesh Kumar Tandon) VERSUS
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016.
2. The Joint Commissioner (Admn.), Kendriya Vidyalaya Sangathan, 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016.
3. The Assistant Commissioner (Admn./RPS), Kendriya Vidyalaya Sangathan, 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016.
... Respondents (By Advocate : Mr. N.K. Bhatnagar with Ms. Rupali and Ms. Pratishtha Mazumdar) 2 Item No. 21(C-3) O.A. No.922/2023 ORDER By Hon'ble Mrs. Pratima K. Gupta, Member (J) :-
The applicant was initially appointed as Assistant in Kendriya Vidyalaya Sangathan (KVS) on
04.03.2014 through direct recruitment. In the year 2016, the post held by the applicant was re- designated as Assistant Section Officer (ASO). On 17.04.2018, the respondents issued a notification for promotion to the post of Section Officer through Limited Departmental Competition Examination (LDCE). The applicant registered himself online and thereafter, participated in the said examination. He belongs to Reserved Category (SC) and in terms of the result notice, he obtained 81.5436 marks.
2. Learned counsel for the applicant stated that in terms of the result annexed at Page 24 dated 24.12.2018, one candidate who belongs to SC category has obtained 98.6577 marks as against the cut off for UR category and therefore, in terms of the law laid down by the Hon'ble Apex Court, he should have been promoted against the UR category leaving one vacancy for the applicant in the SC category. 3 Item No. 21(C-3) O.A. No.922/2023 Since the respondents have promoted the candidate who had obtained 98.6577 marks under the SC category itself, the applicant has been deprived of the promotion. Aggrieved by the same, the applicant has preferred the instant OA seeking the following reliefs:-
"(i) quash the impugned letter dated 14-02-
2023 as contained at Annexure No. A-1 to the Original Application.
(ii) direct the respondents No.1 to issue the promotion to the applicant for the post of Section Officer from the panel for the year 2018 under SC category with consequential benefits from the date the candidates joined on the post in the year 2018.
(iii) pass any order(s) or further order(s) or direction(s) as be deemed just and proper to meet the ends of justice.
(iv) allow the Original Application with cost." 3.1 Learned counsel for the applicant submitted that in light of the decision dated 10.02.1995 of the Hon'ble Apex Court in R.K. Sabharwal & Ors. Vs. State of Punjab & Ors. 1995 SCC (2) 745, the respondents were obliged to give the vacancy to the candidate who have participated under the reserved category (SC) and had obtained higher marks than the last selected candidate in the UR category, thereby, leaving one vacancy under the SC category and the 4 Item No. 21(C-3) O.A. No.922/2023 applicant makes his claim on the said vacancy. Para 11 of the same is reproduced hereinbelow:-
"11. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at various roster points are filled from amongst the scheduled Casts/ Scheduled Tribes candidates, 2 posts arc filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by December 31, 1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the 1996, 25 more persons belonging to the general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Casts and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster-point it would be open to the State Government to carry forward the point in a just and fair manner."
3.2 Learned counsel for applicant further drew strength from the decision of the Coordinate Bench of 5 Item No. 21(C-3) O.A. No.922/2023 the Tribunal in OA No. 571/2019 decided on 15.12.2020. Paras 15, 17 and 19 thereof read as under :-
"15. The controversy, raised in the instant OA, lies in a narrow compass: whether a reserved category candidate who is next in turn for promotion on his/her own merit, can be promoted on an unreserved vacant post.
The issue was deliberated in R.K. Sabharwal (para-6.1 supra) and was settled wherein it was held that it is incumbent on State to reach a conclusion that backward classes, for whom reservation is made, are not adequately represented in State Services. Thereafter, post based roster needs to be followed especially for initial recruitment, wherein certain roster points need to be earmarked to the intended reserved community, to the extent of reservation to be achieved on running basis, wherein the roster point, which is not meant for a reserved community, can be occupied by a General as well as a reserved community candidate depending upon his/her turn in the select panel prepared as per the method of appointment by promotion i.e. whether seniority-cum-suitability method or as per merit based method. As against this, the roster point for reserved community must necessarily be filled by a candidate belonging to that community only.
This position has remained unchanged.
xxx xxx xxx xxx
17. The respondents have referred the issue of promotion of applicant, for clarification to DoPT as well as Ministry of Health & Family Welfare, who in turn have also consulted Ministry of Law & Justice for clarity. They had clarified to act as per DoPT directives. The DoPT directives were issued on 11.07.2002, 31.01.2005, 15.06.2018 (para-8 supra).6
Item No. 21(C-3) O.A. No.922/2023 In none of these directives there is any prohibition that a reserved category candidate cannot be promoted in his/her turn on merit for a vacancy which may be earmarked for unreserved category.
Therefore, while an unreserved category candidate can be promoted against an unreserved vacancy only, a reserved category candidate can be promoted to a reserved vacancy as per reservation as well as he/she can be considered for promotion against an unreserved vacancy if he/she happens to be the next candidate in line for promotion on merit.
xxx xxx xxx xxx
19. The respondents are directed to consider the applicant for the vacant post of Hindi Officer by constituting a review DPC. In case she is found fit for promotion, she shall be granted promotion from the same date her juniors were promoted, and she shall also be granted pay fixation at par with her juniors, who were promoted vide orders dated 29.01.2019. The due arrears shall also be paid.
This entire exercise shall be completed by the respondents within a period of 08 weeks from the date of receipt of a certified copy of this order. No costs.
Pending MA also stands disposed of."
4. Pursuant to notice, the respondents have filed their reply. Learned counsel for respondents vehemently opposed the present OA and submitted that in case the submissions of learned counsel for the applicant were to be accepted, there would be one 7 Item No. 21(C-3) O.A. No.922/2023 person who has been extended promotion in the unreserved category who would have to be reverted and since the said person has not been arrayed as party respondent, the relief claimed by the applicant cannot be extended in the absence of this person. Therefore, the OA cannot be entertained. He further submitted that the notification dated 17.04.2018 with respect to the promotion for the post of Section Officer through the LDC Examination was issued in the year 2018 and the applicant preferred application in the year 2023 and, therefore, the same is hopelessly barred by limitation.
5. We have heard the learned counsel for the parties and gone through the pleadings available on record.
6. The undisputed facts in the OA are that the applicant belongs to the SC category. He has obtained 81.5436 marks and one candidate belonging to the SC category has obtained 98.6577 marks, which are higher than the marks obtained by the last selected candidate in the unreserved category. According to us, in terms of the decision of the Hon'ble Apex Court in R.K. Sabharwal (supra), the 8 Item No. 21(C-3) O.A. No.922/2023 respondents were obliged to consider the candidature of the SC candidate who has obtained 98.6577 marks under the unreserved category, giving way to the applicant. The submission of the learned counsel for the respondents based on the counter reply is that the respondents have prepared the seniority list in accordance with the DOP&T OM dated 15.06.2018. According to us, this averment is misplaced as this OM deals with promotion from reserved to reserved and unreserved to unreserved and also in matters of promotion while in the present facts, this is a situation where the reserved category candidate has obtained higher marks than the unreserved category candidate.
7. We are confronted with a situation where in case the relief is awarded to the applicant i.e. Shri Yogesh Kumar, the SC candidate who has obtained higher marks i.e. 98.6577 will be shifted against the unreserved vacancy and the last selected candidate in the unreserved list would have to forego his promotion, who is not a party before us.
8. On 16.05.2024, after issuance of notice, on consideration on the prayer of interim relief, the 9 Item No. 21(C-3) O.A. No.922/2023 promotion to the post of Section Officer pursuant to the LDC Examination was made subject to the final outcome of the present OA. Therefore, the objection that the affected person is not arrayed as party respondents, according to us, is misplaced. We reiteriate that by order dated 16.05.2023, interim protection has already been granted to the applicant, stating that any promotion made to the post of Section Officer shall be subject to the final outcome of the present OA.
9. Be that as it may, the applicant who belongs to the SC category and has obtained his merit is entitled to be promoted to the post of Section Officer under the LDC Examination. However, the person who may be an affected one, according to us, also needs some protection as he has been promoted and continued for a reasonable long period of time. To give benefit to one, the other person cannot be put to disadvantage for the fault on the part of the respondents.
10. Therefore, the OA is allowed with the following directions:-
10
Item No. 21(C-3) O.A. No.922/2023
(i) The applicant shall be included in the list of selected candidates against the SC category for the LDC Examination held in the year 2018.
(ii) Shri Subodh Kumar Saroha, a candidate in the SC category who has obtained higher marks than the last selected candidate under the unreserved category would be treated as unreserved for this promotion.
(iii) The last selected candidate in the general category, who will make way to the promotion of the applicant in compliance of the above directions at (i) and (ii), shall be extended the supernumerary post in the unreserved category on the post of Section Officer, till a regular post is created.
(iv) The applicant shall be entitled to all the consequential benefits including seniority albeit on notional basis.
(v) The above directions shall be complied with within a period of four weeks from the date of receipt of a certified copy of this order.11
Item No. 21(C-3) O.A. No.922/2023
11. The OA stands allowed in the aforesaid terms. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
'rk'