Rajasthan High Court - Jaipur
Union Of India And Ors vs Lokesh Kumar Saini And Ors on 11 November, 2013
Author: Ajay Rastogi
Bench: Ajay Rastogi
D.B.Civil Writ Petition No.2773/2012. Union of India & Others. VERSUS Lokesh Kumar Saini & Ors. 11.11.2013. HON'BLE MR.JUSTICE AJAY RASTOGI HON'BLE MR.JUSTICE J.K.RANKA Mr.P.C.Sharma, for petitioner-UOI. Mr.Shobhit Tiwari, for respondents.
***** Instant petition is directed against the order of Central Administrative Tribunal dt.26.11.2011 and while disposing of the OA, the ld.Tribunal gave following directions:-
3. On the contrary, learned counsel for the applicant agrued that the railways have adopted the DOPT OM No.36012/45/2005-Estt.(Res.) dated 10.08.2010 while issuing the RBE No.126/2010 dated 14.09.2010. Para No.3 of the RBE 126/2010 is quoted below:-
3.The instructions on the subject have since been reviewed by the Nodal Department i.e. DOP&T in the light of the CAT/Madras order in OA No.900/2005 (S.Kalugasalatnoonby vs. UOI & Others.), upheld by the Hon'ble High Court/Madras (WP No.15926/2007). Based on the decision communicated by DOP&T in the matter, it is now clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualification will be adjusted against unreserved points or reservation roster irrespective of the fact whether the promotion is made by selection method or non selection method. These orders shall take effect from 21.08.1997, the date of which post based reservation was introduced on Railways........
4. Thus a comparison of OM No.36012/45/2005-Estt.(Res.) of the DOPT dated 10.08.2010 and RBE No.126/2010 dated 14.09.2010 clearly shows that this RBE is based on the facts given in the DOPTs OM dated 10.08.2010. Therefore, it can be easily concluded that the Railways have adopted the OM of the DOPT while issuing the RBE No.126/2010. Since it is not disputed that the OM No.36012/45/2005-Estt.(Res.) dated 10.08.2010 of the DOPT has been quashed by the Hon'ble High Court of Punjab & Haryana in the case of Lachhmi Narain Gupta & Others Vs. Jarnail Singh & Others (supra), therefore, the instructions issued vide RBE No.126/2010 can also not survive. Therefore, any action taken by the respondents in pursuance to the RBE No.126/2010, particularly with reference to Para No.3 of circular, will not remain relevant. Therefore, the respondents are directed not to give effect to RBE No.126/2010 dated 14.09.2010 as the OM of the DOPT No.36012/45/2005-Estt.(Res.) dated 10.08.2010 has already been quashed. With regard to relief Nos.2 & 3, the respondents are directed to take further action in the matter ignoring the RBE No.126/2010 dated 14.09.2010. It was stated at Bar that the judgment of the Hon'ble Punjab & Haryana High Court in the case of Lachhmi Narain Gupta & Others Vs. Jarnail Singh & Others (supra) has been challenged in the Hon'ble Supreme Court by way of SLP. Therefore, these directions of the Tribunal are subject to the final outcome of the SLP filed in the Hon'ble Supreme Court.
Counsel for petitioner submits that apart from objection that circular of the department RBE No.126/2010 dt.14.09.2010 was no depending upon the circular of DOPT dt.10.08.2010 which came to be assailed before the High Court of Punjab & Haryana in the case of Lachhmi Narain Gupta & Others Vs. Jarnail Singh & Others and pending before the Supreme Court in Special Leave Petition. He further submits that the ld.Tribunal has directed the department to take further action in the matter ignoring the circular RBE No.126/2010 dt.14.09.2010 and if any appointment/promotions are made ignoring the same, that certainly will create legal complication and their undertaking will be subject to final outcome of pending SLP before the Supreme Court and the later judgment of the Apex Court may disturb the exercise, if any, undertaken by the department, in the light of the order of ld.Tribunal impugned herein dt.26.11.2011.
Counsel for respondents, on the other hand, submits that in the pending SLP before the Apex Court, there is no interim protection so far granted and that being so, no error has been committed by the ld.Tribunal in directing the department to take further action ignoring the circular RBE No.126/2010 dt. 14.09.2010 and rights of the parties have been protected and the exercise undertaken by the department was made subject to final outcome of pending SLP filed assailing the order passed by the High Court of Punjab & Haryana against the order of DOPT dt.10.08.2010.
After taking note of the submissions made, this fact remains undisputed that para-3 of the circular, which has been referred to by the ld.Tribunal in para-3 of the order impugned dt.26.11.2011 of DOPT's order dt.10.08.2010 is the same which the petitioner has referred to in their circular RBE No.126/2010 dt.14.09.2010 and once the order of DOPT dt.10.08.2010 has been quashed & set aside by the High Court of Punjab & Haryana and SLP is pending before the Apex Court and interim protection has not been granted to the parties, in our considered view, it will be in the interest of justice that those who have been promoted prior thereto, may not be disturbed but at the same time further appointment/promotions, if allowed, ignoring the circular RBE No.126/2010 dt.14.09.2010, may create legal complications. However, the petitioner is at liberty to take further action after the final outcome of the pending SLP before the Apex Court or in terms of any interim direction, if passed by the Apex Court pending SLP, regarding appointment/promotion, etc. Counsel for respondents has brought to our notice that the circular RBE No.126/2010 dt.14.09.2010 has been issued from Railway Board and it is based on the DOPT's circular dt.10.08.2010 but as per his information still the exercise is being undertaken in terms of the circular dt.14.09.2010 in other Divisions of the Railways.
There is no need to pass any further order since the circular of RBE No.126/2010 dt.14.09.2010 has been taken note of by us and it cannot be given effect to pending SLP and is binding upon the Railways Administration, in particular.
Accordingly, the writ petition stands disposed of, as indicated above.
(J.K.RANKA),J. (AJAY RASTOGI),J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, P.A