Central Administrative Tribunal - Delhi
M L Meena vs M/O Railways on 21 October, 2024
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C-3/Item-39 OA-1861/2020
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./1861/2020
Reserved on: 11.09.2024
Pronounced on: 21.10.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
Makkhan Lal Meena, aged about 55 years,
S/o Shri Khilari Ram Meena
Working as Chief Booking Supervisor
Group `C' at Mathura Jn. Railway Station
Agra Division, North Central Railway
Resident of : Rly. Qr. No.D-40,
West Railway Colony,
Mathura (U.P.) - 281001 ...Applicant
(Through Sh. T.D. Yadav for Sh. P.S. Khare, Advocate)
VERSUS
1. Union of India thro'
The General Manager,
North Central Railway,
Saraswati Parisar, Subedar Ganj,
Allahabad, U.P.
2. The Divisional Railway Manager
North Central Railway,
Agra Cantt. (U.P.) ...Respondents
(Through Shri Piyush Gaur, Advocate)
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A):-
The applicant was initially appointed as Commercial Clerk with Central Railway on 26.03.1991 and subsequently promoted to the post of Commercial 2 C-3/Item-39 OA-1861/2020 Supervisor on 01.08.2001. On completion of two years of regular service, he was entitled to be considered for next promotion to the post of Chief Commercial Supervisor (CCS). The restructuring exercise was undertaken by the respondents with respect to Group-C and D cadres that included the Commercial Supervisors. After the said re-
organization exercise, since the applicant, who belongs to the ST category was not considered for promotion to the post of Commercial Supervisor from the date of his entitlement i.e. 01.08.2003. However, the applicant was extended promotion to the post of Chief Commercial Supervisor w.e.f. 09.05.2008. It is the grievance of the applicant that the applicant was in fact entitled for promotion against the SC roaster point w.e.f. 01.11.2003 itself. Aggrieved by the same the applicant has preferred representation on 07.08.2008 followed by a reminder. This representation has been rejected by the respondents by the impugned order dated 02.02.2019. Assailing the said order of the respondents, the applicant has filed this OA seeking the following reliefs:-
"8.1 allow the OA and by quashing the impugned orders dated 04.02.2019, 14.02.2019 and 29.08.2019 (Anns. A-1, A- 2, & A-3), direct the respondents to release the promotional benefits to the petitioner in Grade of Rs. 6500-10500 w.e.f. 01.11.2003 under Restructuring Scheme, 2003 and GP Rs. 4800/- in PB-II Rs. 9300-34800 w.e.f. 01.01.2006 and further promotion in GP Rs. 4800/- in PB-II Rs. 9300-34800 w.e.f. 01.11.2013 or a later date under the MACP Scheme, 2008 with all consequential benefits of arrears of pay and allowances and interest thereon @ 18% p.a. compounded yearly; and 3 C-3/Item-39 OA-1861/2020 8.2 pass any such other order or direction as the Hon'ble Tribunal may deem just and proper as per facts and circumstances of the case besides the cost and expenses of present litigation."
2.1 The learned counsel for the applicant, in support of the applicant's case, draws attention to the office note (page 29), that details the sanctioned strength, He states that in the category of Chief Commercial Supervisor, before the restructuring the sanctioned strength was 20, assigning 3 posts to SC, 2 to ST and 15 to UR category. The office note further confirms that there were three vacancies already occupied by 3 SC, 1 ST and 16 UR category candidates. He submits thereby one point with respect to ST candidate existed before the restructuring. After the re- structuring exercise undertaken by the respondents, though the number of posts increased to 31, however the respondents have incorrectly mentioned that there was no roaster point for ST category. Therefore, he submits that in light of the fact that one roster point to the ST category, before the cadre restructuring, should have been reflected after the cadre restructuring exercise as well and the cause of the applicant should have been considered against the said post. He draws attention to the communication dated 09.08.2012 annexed at page 37 of the OA which is reproduced as under:-
"Sub: Regarding grant of promotion to Sh. M.L. Meena Chief Booking Supervisor under Re-structuring of Cadre w.e.f. 01.11.2003.4
C-3/Item-39 OA-1861/2020 A representation has been given by Sh. M.L. Meena who is at present working on the post of Chief Booking Supervisor in this office, through which he has demanded promotion w.e.f.01.11.2003 under Restructuring on the ST Point.
Particulars of sanctioned post & on Roll position on Agra Division on 01.11.2003 is as under:-
Sanctioned Posts Men on Roll Existing Vacancies UR SC ST Total UR SC ST Total UR SC ST Total 15 3 02 20 16 03 01 20 +1 Nil 01 Nil Since at the time of organisation of Agra Division, employees had come to Agra Division from other Divisions, there was short fall of 01 post of ST but on 20 sanctioned post total 20 employees were working on 01.11.2003, therefore, there was no existing vacancy on 01.11.2003.
Number of posts were increased from 20 to 31 under the restructuring on 01.11.2003. Therefore 11, (eleven) posts were increased and as PBR 09 posts of UR and 02 posts of SC were to be filled up. No point post is made out according to PBR. Therefore, as per para 4.4. of letter No. RBE No. 05/2004 dated 08.01.2004 of (Railway Boards) only restructured posts have been filled up as per PBR.
Since, there were 20 employees working against 20 sanctioned posts but the shortfall of ST-01 post was there, which was filled up after restructuring. The employee is requesting for his promotion on 01.11.2003 against existing vacancy under the restructuring. Therefore only with application of Sh. M.L. Meena, complete case of restructuring of CBS along with the proforma is sent herewith for proper guidance/ instructions."
2.2 In spite of the clarification in details mentioned in the aforesaid communication dated 09.08.2012 the respondents are illegally and arbitrarily rejected the case of the applicant by way of the impugned order. He states that since restructuring was recommended in the year 2008, the applicant was entitled to be considered against the roaster point for SC category w.e.f. 01.11.2003 itself. 5
C-3/Item-39 OA-1861/2020 3.1 Per contra, Mr. Piyush Gaur, learned counsel for the
respondents vehemently opposes the present OA. He draws strength from his counter reply and submits that though the 20th point was assigned to the ST category before the cadre re-structuring exercise in the Agra Division, however, in terms of the Railway Circular issued from time to time, the minimum residency period is 2 years is required to be considered for promotion which the applicant did not possess and, therefore, he could not be considered against the roaster point assigned to SC category in the year 2003. In the meanwhile, since the cadre restructuring exercise was implemented w.e.f. 01.11.2003 though the 11 posts were created for Commercial Supervisor, however, after the restructuring exercise there were no ST point, therefore, the applicant could not be considered for promotion.
4. We have heard both the counsels carefully and gone through the records of the case thoroughly. Here the cardinal issue essential for consideration of the relief sought by the applicant relates to his right to be considered for promotion based on principle of "reservation in promotion" pertaining a period as back as 2003. 4.1 It is admitted by both the parties that the applicant belongs to the ST community. The relevant date for consideration for promotion as claimed by the applicant is 1.8.2003 because he had completed the relevant qualifying 6 C-3/Item-39 OA-1861/2020 period of two years of regular service as Commercial Clerk w.e.f 1.08.2001. As per the claim of the applicant, there was one post (though no vacancy) available for ST category as per the roster point meant for such promotion. While he was considered for promotion under the reserve category and promoted as Chief Commercial Supervisor w.e.f 9.05.2008, the applicant is agitating since 9.05.2008 through submission of his first representation on 29.06.2010 to the respondents to consider him for promotion w.e.f 1.08.2003 when he completed two years of qualifying service in the feeder cadre and based on roster point reserved for the ST category. The respondents have finally responded to the applicant vide impugned communication that there was no vacancy of Chief Commercial Supervisor as on 1.08.2003 for consideration of the claim of the applicant for promotion on basis of roster for ST category. Hence, now the issue has boiled down to "availability of vacancy" vis-à-vis "operation of roster point on post based reservation for promotion'. 4.2 The right to be considered for promotion based either on "availability of vacancy" or on "operation of roster point based on number of posts" arose when the respondents issued the promotion order dated 9.05.2008. The present applicant preferred not to approach the appropriate law forum by impugning the said promotion order immediately 7 C-3/Item-39 OA-1861/2020 after the respondents did not respond to his alleged representations. Even in the present OA, the applicant has not impugned any such promotion order. He preferred to make repeated representations to the respondents and finally approached this Tribunal on 11.03.2020 seeking ante dating of his promotion w.e.f 1.08.2003. 4.3 The Apex Court in its judgment in Union of India and Others Vs. Tarsem Singh, (2008) 11 SCALE 594 held that:
"If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained."
Here the applicant has claimed to be considered for promotion on the basis of alleged roster point existing as on 2003. He has not produced nor prayed for the production of maintenance of roster point as on 1.08.2003. The applicant has not impleaded the third parties who might be affected if such promotion is granted to him with effect from 1.08.2003. It is not brought to our notice whether there were other eligible ST candidates as on 1.08.2003. The matter requires consideration of the service record of such candidates including the present applicant from 2001 to 2003, as per the claim of the applicant. A period of nearly 20 years has lapsed since then. The matter has become stale.
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C-3/Item-39 OA-1861/2020 4.4 The Doctrine of Laches emanates from the principle
that the Courts will not help people who sleep over their rights and helps only those who are aware and vigilant about their rights. A party is said to be guilty of laches when they come to the Court to assert their rights after a considerable delay in that respect. The doctrine of laches is based on the principle "delay defeats equity". 4.5 Since 2001, millions of cusecs of water has flown under the Yamuna Bridge. The concepts like maintenance of Roster point (based on posts, not on basis of vacancies) for promotion based on reservations after the verdict of the Apex Court in R.K. Sabharwal Vs State of Punjab (AIR) 1995 SC 1371, Union of India Vs. Virpal Singh Chauhan, (AIR) 1996 SC 442 and Union of India and others Vs. J.C. Malik and others, SLJ 1996 (1) 114 have undergone significant reiteration and reinterpretation in subsequent case laws by the Apex Court in Ajit Singh Janjua and others Vs. State of Punjab & Ors., 1996 (2) SCC 215( Ajit Singh-I), Ajit Singh and ors. Vs State of Punjab and ors., 2000 (1) SCC 430 (Ajit Singh-II), ; M.G. Badappanavar and Anr. Vs State of Karnataka & ors., AIR 2001 SC 260. 4.6 Again, the 85th and 86th Constitutional amendments to the Constitution of India in 2001 have been effected providing a constitutional framework for ensuring consequential seniority to any class in promotion. While 9 C-3/Item-39 OA-1861/2020 upholding the validity of the constitutional validity of above amendments in M. Nagraj & Ors Vs. Union of India & ors., 2006 (8) SCC 212, the Constitutional Bench held that Article 16 (4A) is an enabling provision. The State is not bound to make reservations in promotions for the SC and SCT. But, if it seeks to do so, it must collect quantifiable data on three facts: a) the backwardness of the class; b) the inadequacy of the representation of that class in public employment; and c) The general efficiency of service as mandated by Article 335. Subsequently, the Apex Court in B.K. Pavitra and ors. Vs. Union of India and ors, AIR 2019 SC 2723 upheld the constitutional validity of the Karnataka Reservation Act, 2018 based on the recommendations of the Ratna Prabha Committee considering the guidelines in M. Nagraj (supra) case. Finally, the Apex Court in Jarnail Singh & Ors Vs. Lachhmi Narain Gupta & ors., in an interim order dated 28.1.2022 in CA no.629 of 2022 has furnished significant clarifications formulating the following issues :
i) What is the yardstick by which, according to M. Nagaraj (supra), one would arrive at quantifiable data showing inadequacy of representation of SCs and STs in public employment?10
C-3/Item-39 OA-1861/2020
ii) What is the unit with respect to which quantifiable data showing inadequacy of representation is required to be collected?
iii) Whether proportion of the population of SCs and STs to the population of India should be taken to be the test for determining adequacy of representation in promotional posts for the purposes of Article 16(4-A)?
iv) Should there be a time period for reviewing inadequacy of representation?
v) Whether the judgment in M. Nagaraj (supra) can be said to operate prospectively?
vi) Whether quantifiable data showing inadequacy of representation can be collected on the basis of sampling methods, as held by this Court in B.K. Pavitra & Ors. Vs. Union of India & Ors., 2017 (4) SCC 620 ("B.K. Pavitra II")?
4.7 Now the question arises as to which case laws and which constitutional provisions would be applicable to the case at hand which pertains to maintenance of roster point based on posts as existed (or did not exist) as on 1.08.2003? Can we transpose the interpretation of the Apex Court in subsequent judgments and the constitutional amendments to the case at hand? Or should we restrict the interpretations and case laws prevailing at 11 C-3/Item-39 OA-1861/2020 the relevant point of time? Will it not be travesty of justice if we apply old case laws to a period pertaining to 2001-03 when we know that there are significant further fine tuning of the constitutional and case laws available now. 4.8 In view of the above discussion, we are of the opinion that the present applicant's case has become stale. The present OA suffers from delay and laches. We are unable to grant any relief to the applicant at this stage for a period pertaining to 2001-03, while the applicant preferred to sleep over his right and preferred not to knock the appropriate judicial forum to exercise his right to be considered for promotion based on roster point maintained (or not maintained) based on posts, rather than vacancy. 4.9 The OA is dismissed in above manner. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
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