Central Administrative Tribunal - Delhi
Surender Singh vs Ministry Of Information & Broadcasting on 22 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.588/2011
With
OA No.1958/2011
Reserved on:07.01.2014
Pronounced on:22.04.2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (J)
OA-588/2011
1. Surender Singh
Aged about 43,
S/o Shri Mahender Singh,
R./o RZ-B-16, Bindapur Extension,
P.O. Uttam Nagar,
New Delhi-110059.
2. Ramesh Kumar Karn
Aged about 46 years,
S/o Shri Rudrapati Lal Karn,
R/o A-370, Kendriya Vihar,
Sector-56, Gurgaon-122011.
3. Harshit Kumar,
Aged about 42 years,
S/o Shri Kaushal Behari Lal,
R/o E-5, C-16, Shatabdi Vihar,
Sector-12, Noida-201301.
4. Prem Shankar Srivastava,
Aged about 42 years,
S/o Shri Gopalji Srivastava,
R/o 701, Tagore Road Hostel,
Minto Road, New Delhi-110002.
5. Manoj Gupta.
aged about 42 yeas,
S/o Shri Ram Swaroop Gupta,
R/o 87, Rashi Apartments,
Sector-7, Dwarka,
New Delhi-110075.
6. K.K. Murya,
Aged about 47 years,
S/o Shri Kanhaiya Prasad Murya,
Flat No.6, Manocha Apartments,
H-Block, Vikaspuri,
New Delhi-110058
7. D.P.Singh
Aged about 43 years,
S/o Shri Ram Kirpal Singh,
R/o B-64, Pocket-5,
Kendriya Vihar-2, Sector-82,
Noida, U.P.
8. Dhaval Chandra Shukla,
Aged about 42 years,
S/o L:ate Shri V.P.Shukla,
R/o B-804, Aditya Garden City,
Sector-6, Vasundhara,
Ghaziabad, U.P.
9. Gaurishankar Kesarwani,
Aged about 43 years,
S/o Late Shri K.M.Keswarni,
R/o B-304, Jansatta Apartments,
Sector-9, Vasundhara, Ghaziabad, U.P.
10. Rajiv Sinha,
Aged about 45 years,
S/o Late Shri S.D. Sinha,
R/o D-301, Munirka Apartment,
Sector-9, Plot No.7,
Dwarka, New Delhi-110075. Applicants
(By Advocate: Shri Apurb Lal)
Versus
1. Ministry of Information & Broadcasting,
Through its Secretary,
Shastri Bhawan,
New Delhi.
2. Director General,
All India Radio,
Akashwani Bhawan,
Parliament Street. .. Respondents.
(By Advocate: Mrs. Avnish Ahlawat and Shri S.M. Arif)
OA-1958/2011
Rajiv Sinha
S/o Late Shri S.D. Sinha,
Aged about 45 years
R./o D-301, Munirka Apartments,
Sector-9, Plot No. 7, Dwarka,
New Delhi-110075. Applicant
(By Advocate: Shri Apurb Lal)
Versus
1. Ministry of Information & Broadcasting,
Through its Secretary,
Shastri Bhawan,
New Delhi-110001.
2. Director General,
All India Radio,
Akashwani Bhawan,
Parliament Street,
New Delhi-110001.
3. Director General
Doordarshan,
Mandi House,
New Delhi.
4. Sh. Ram Bhog Singh
Deputy Director Engineering
Office of Chief Engineers (NE)
AIR & TV, Jam Nagar House,
New Delhi-11. .Respondents
(By Advocate: Mrs. Avnish Ahlawat and Shri S.M. Arif)
ORDER
Honble Mr. G. George Paracken, Member (J) 1.1 Both these Original Applications are similar in nature and, therefore, they are disposed of by this common order.
OA No.588/20111.2. Applicants have filed this OA seeking an order setting aside the Annexure A-1 Post Based Promotion Roster Register of Senior Time Scale Officers (STS for short) as on 31.03.1998 revised on 02.11.2010. All them are presently working in the cadre of STS. On 26.06.2000, the Respondents prepared the Ist Post Based Roster of STS up to 02.07.1997 based on their seniority. According to them, it was not in consonance with the guidelines issued by the DOP&T to the extent that it contained points plotted up to 500 whereas it should have been limited to the sanctioned strength only, i.e., 486. Further, according to them, the Respondents should have prepared the Roster Register as on 01.11.1997 to include the names of officers whose DPC was held before 02.07.1997, in terms of the said OM dated 02.07.1997. The relevant part of the said OM reads as under:-
The undersigned is directed to say that under the existing instructions, vacancy-based rosters have been prescribed in order to implement the Governments policy relating to reservation of jobs for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. The application of reservation on the basis of these rosters was called into question before Courts. The Constitution Bench of the Supreme Court, in the case of R.K. Sabharwal Vs. State of Punjab as well as J.C. Mallick Vs. Ministry of Railways has held that the reservation of jobs for the backward classes SC/ST/OBC should apply to posts and not to vacancies. The court further held that the vacancy based rosters can operate only till such time as the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentage of reservation. Thereafter, the rosters cannot operate and vacancies released by retirement, resignation, promotion etc. of the persons belonging to the general and the reserved categories are to be filled by appointment of persons from the respective category so that the prescribed percentage of reservation is maintained.
However, on 26.06.2000 itself, the Respondents rectified their mistake and prepared the Roster Register of STS up to 31.03.1998 and it was approved by the competent authority on 10.11.2000. During the period from 02.07.1997 to 31.03.1998, no DPC was convened but from 1998 to 2009, ten regular DPCs were held and about 500 persons were promoted from the cadre of STS on the basis of Roster Register of STS Officers as on 31.03.1998 (final). However, in the roster as on 31.03.1998 modified on 02.11.2010, with a view to favour reserved category of persons, the Respondents made reservation of STS officers in violation of law laid down by the Apex Court on the issue as well as the aforesaid OM dated 02.07.1997.
1.3. The Applicant No.10 made Annexure P-5 representation dated 17.01.2011 against the aforesaid revised roster dated 02.11.2010 pointing out the following anomalies:-
1. Roster dated 02.07.1997 is plotted up to 560 points, whereas the sanctioned strength on that ay was 486 (there is violation of para 4b of the above mentioned DOP&T order).
2. Roster dated 02.07.1997 did not include the names of the officers, whose DPC was held on 07.04.1997 (before 02.07.1997), and the order for their promotion was issued on 08.08.1997. As per para 9 above mentioned DOP&T order, the name of these officers should also be included in the roster. The roster dated 02.07.1997 was in violation of Para 9 of the DOP&T order. In fact, as the roster is made to expand or contract in accordance with the number of sanctioned posts, a roster was required to be prepared as on 01.09.1997 by DG:AIR to have a clear and unambiguous picture of following years. Thereafter, DG:AIR had prepared a roster as on 31.03.1998 which was approved by Ministry of Information and Broadcasting on 10.01.2000.
3. DG:AIR had not incorporated the effect of the order in the OA No.798/1996 of Honble CAT in the roster dated 31.03.1998.
4. The roster violates para 8 of the above mentioned DOP&T order explanatory note as Squeezing has not been done in the roster dated 02.07.1997 as envisaged in the DOP&T order.
5. Now, DG:AIR again prepared a revised roster of 31.3.1998 which was signed on 12.11.2010 by some officials of DG:AIR. In this revised roster, the positions of the officers shown in the earlier rosters dated 31.03.1998, and dated 02.07.1997, were changed, which is a violation of para 10 of the above mentioned DOP&T order explanatory note. It clearly shows that manipulations were carried out in the vacancies in different categories for 1997-98 select panel while preparing this revised roster.
6. It appears that while preparing the revised roster, the base of the roster i.e. 02.07.1997 and 31.03.1998 was unlawfully manipulated in unjustifiable and biased manner in favour of reserved candidates.
1.4. As the Respondents have not taken any action on the aforesaid representation, the Applicants have filed OA No. 461/2011 before this Tribunal, challenging the aforesaid roster of 02.11.2010 but it was dismissed as withdrawn vide order dated 30.01.2011 with liberty to file a fresh OA adducing proper grounds and clear reliefs. Thereafter, they filed this OA but it was dismissed in limine vide order dated 01.03.2011 as the learned counsel for the Applicants could not explain as to how the unreserved category of candidates were affected adversely by the reserved roster of 02.11.2010. One of the Applicants in this OA challenged the aforesaid order before the Honble High Court of Delhi vide W.P. ( C) No.851/2011 and the High Court vide its order dated 28.03.2011 considered the contention of the Petitioner that this Tribunal failed to consider that there could not have been introduction of a roster point inasmuch as by virtue of introduction of roster point, certain juniors have been brought to the top of the roster as a result of which the promotional post, which is presently occupied by the petitioner, is likely to be affected inasmuch as the said junior persons would claim for review of DPC. The petitioner was, therefore, given liberty to file Review Application against the earlier order of this Tribunal dated 01.03.2011. Subsequently, RA 226/2011 in this OA was filed and it was allowed vide order dated 23.08.2012.
2. The Respondents in their reply have submitted that the Roster as on 31.03.1998 was incorrect as there was no Roster during the period from 2000 to 2004 and the Review DPC held on 18.12.2003 for the panel years 1995 to 1998 was not incorporated therein. Hence, there was necessity to revise the Roster Register from 31.03.1998. They have also stated that reservation in promotion for JTS to STS was made in accordance with the instructions issued by the DOP&T from time to time. According to the DOP&T OM No.27/2/1971-Estt. (SCT) dated 27.11.1972 reference was made to the M/o Home Affairs OM No.1/12/67-Ests.(C) dated the 11th July, 1968 wherein it was stated there was no reservation for Scheduled Castes and Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness. Accordingly, reservation in promotion from JTS to STS was made although cases involving supersession of Scheduled Castes and Scheduled Tribes officers in Class-I and Class-II appointments were required to be submitted for prior approval to the Minister or Deputy Minister concerned and cases of supersession in Class-III and Class-IV appointments were to be reported to the Minister or Deputy Minister concerned for information. The said policy was reviewed vide DOP&T OM dated 27.11.1972 and decided that there will be reservation of 15% for Scheduled Castes and Scheduled Tribes and 7=% for Scheduled Tribes in promotions made on the basis of seniority subject to fitness, in appointments to all Class-I, Class-II, Class-III and Class-IV posts in grades or services in which the element of direct recruitment, if any, does not exceed 50%. The said OM further states as under:-
The procedure to be followed where promotions are made on the basis of seniority subject to fitness has been laid down in paragraph 1b of Ministry of Home Affairs OM No.1/9/58-RPS dated the 16th May, 1959 which provides that in such cases a decision has to be taken on the suitability of each individual officer for such promotion although there is no need for a comparative evaluation of their respective merits and that a decision on the fitness or the unfitness of an officer for promotion should be taken by the Departmental Promotion Committee instead of by an individual officer. While, therefore, referring proposals to the Departmental Promotion Committee for promotion on the basis of seniority subject to fitness in respect of vacancies expected to arise during a year, the following procedure may be followed to give effect to the decision mentioned in paragraph 2 above:-
(i) A separate 40-point roster to determine the number of reserved vacancies in a year should be followed on the lines of the roster prescribed in Annexure-I to the Ministry of Home Affairs OM No.1/11/1969-Est. (SCT), dated the 22nd April, 1970, in which point 1, 8, 14, 22, 28 and 36 are reserved for Scheduled Castes and points 4, 17 and 31 are reserved for Scheduled Tribes.
(ii) Whenever according to the points in the roster there are any vacancies reserved for Scheduled Castes and Scheduled Tribes, separate lists should be drawn up of the eligible Scheduled Castes or the Scheduled Tribes officers, as the case may be, arranged in order of their inter-se seniority in the main list.
(iii) The Scheduled Castes and Scheduled Tribes officers should be adjudged by the Departmental Promotion Committee separately in regard to their fitness.
(iv) When the Select List of officers in the general category and those belonging to Scheduled Castes and Scheduled Tribes have been prepared by the Departmental Promotion Committee, these should be merged into a combined Select List in which the names of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, are arranged in the order of their inter-se seniority in the original seniority list of the category or grade from which the promotion is being made. This combined select list should thereafter be followed for making promotions in vacancies as and when they arise during the year.
(v) The select list thus prepared would normally be operative for period of one year, but this period may be extended by six months to enable such of the officers included therein, as could not be appointed to the higher posts during the normal period of one year, to be appointed during the extended period.
3. Again, the DOP&T, vide their OM NO.36021/7/75-Estt. Dated 25.02.1976, considered the question of enlarging the scope of the existing scheme of reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion by extending them to grades or services in which the element of direct recruitment is not more than 66 2/3% (as against the existing limit of 50%) and decided that the reservations in posts filled by promotion under the existing scheme as indicated above should be made applicable even to grades or services, in which the element of direct recruitment, if any, does not exceed 66 2/3%. However, vide DOP&Ts OM No.36012/17/88-Estt.(SCT) dated 25.04.1989, in partial modification of the aforesaid OM, the reservation in posts by promotion under the existing scheme has been made applicable to all grades or services, in which the element of direct recruitment, if any, does not exceed 75%. Again, the DOP&T, vide OM No.36012.5/97-Estt.(Res.) dated 29.08.1997, the following judgment of the Supreme Court in the case of Indira Sawhney Vs. Union of India validating the carry forward rule under which reservations are carried forward from year to year, without breaching the 50% rule, it was observed that it was not possible to treat the current and the backlog reservation on separate footings in the manner contemplated in this Departments OM, dated April 25, 1989. Further, the DOP&T vide its OM No.36012/5/97-Estt.(Res.) Vol.II dated 20.07.2000, took into consideration of Article 16(4-B) of the Constitution incorporated in the Constitution by the Constitution (Eighty-First Amendment) Act, 2000, which provides as under:
"Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."
Therefore, in partial modification of its earlier O.M. No.36012/5/97-Estt.(Res.), dated the 29th August, 1997, it was decided that the reserved vacancies for Scheduled Castes and Scheduled Tribes in all cases of direct recruitment and promotion, wherever applicable, which have remained unfilled in the earlier years(s) i.e. backlog and/or carried forward vacancies would be treated as a separate and distinct group and will not be considered together with the reserved vacancies of the year in which they are being filled up for determining the ceiling of 50 per cent reservation on total number of vacancies of the year. In other words, the ceiling of 50 per cent on filling up of reserved vacancies would apply only on the reserved vacancies which arise in the current year and the backlog/carried forward reserved vacancies for SCs/STs of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling. However, backlog and/or carried forward reservation will automatically lapse in a cadre as soon as combined representation of a reserved category in direct recruitment as well as promotion is either equal to or more than the prescribed number of reserved posts in the relevant post-based rosters. Again, the DOP&T, vide its OM No.36028/21/2003-Estt.(Res.) dated 29.01.2004 decided that the orders contained in the aforesaid OM would apply to promotions by selection to posts within Group A carrying an ultimate Salary of Rs.18300/- or less in the revised scale of pay.
4. The Applicants have filed a rejoinder stating that there cannot be any reservation in promotion in the absence of non-compliance of the conditions laid down by the Honble Supreme Court in the case of M. Nagaraj and Others Vs. Union of India and Others 2006 (8) SCC 212.
OA No.1958/20114.1. The Applicant in this OA is the 10th Applicant in OA No.588/2011 (supra). His grievance is against the impugned Annexure A-1 final seniority list of Senior Time Scale Officers (STS for short) as on 01.01.2010 (corrected up to 10.06.2010) issued by the Respondent No.2, namely, the Director General, All India Radio.
4.2 The brief facts in this case are that the applicant joined the grade of Junior Time Scale (JTS) of IB(E)S on 14.7.1992 and the 4th respondent joined in the said grade on 29.7.1992 availing the benefit of reservation. He was given accelerated promotion to the STS grade on 8.8.1997 based on reservation. The Applicant was later on promoted to the STS grade on 30.10.1998. Then the 4th respondent was upgraded to the NFPS scale in 2005 and the Applicant was so upgraded w.e.f. 25.6.2006. Thereafter, the Respondents issued the seniority lists of JTS of IB(E)S and STS on 20.12.2007 and on 10.6.2010 respectively. In both the aforesaid seniority lists, the 4th respondent was shown senior to the Applicant.
4.3. Aggrieved by the aforesaid accelerated promotions given to the 4th Respondent, the Applicant had earlier filed OA No.1749/2011 but it was disposed of vide order dated 13.5.2011. The said order reads thus:
After arguing for some time, learned counsel seeks permission to withdraw this Original Application with liberty to file fresh one wherein all pre-conditions for giving accelerated promotion having not gone into as mentioned in the judgment of the Honble Supreme Court in M. Nagraj Vs. Union of India (2006) 8 SCC 212 shall be incorporated, if that be so.
2. With leave and liberty as asked for, this Original Application is dismissed as withdrawn. 4.4. Thereafter, the Applicant filed this OA seeking a direction to be issued to the official respondents to declare him senior to the 4th respondent in the seniority list of Senior Time Scale (STS) officers corrected up to 10.6.2010 in the light of the judgment of the Honble Supreme Court in M. Nagraj & others v Union of India [(2006) 8 SCC 212]. The Applicant has also sought a direction to be issued to the respondents to revise the seniority list of STS officers of IB(E)S accordingly. Finding that the said OA was barred by time, it was dismissed in limine vide order dated 01.06.2011. The operative part of the said order reads as under:-
4. We have heard the learned counsel representing the applicant and with his assistance examined the records of the case. The learned counsel was asked to explain as to how the present OA would be within limitation, as ever since 1997, when the 4th respondent was promoted to STS grade, the applicant has been junior to him. It may be recalled that whereas, the applicant was promoted to the STS grade on 30.10.1998, the 4th respondent had been so promoted on 8.8.1997. Even the upgraded post in NFPS scale came to be occupied by the said respondent earlier, i.e., in 2005, whereas the applicant came to occupy the post in NFPS on 25.6.2006. The learned counsel would have no answer to the question put to him as regards the present Application being barred by limitation. Before we may, however, proceed further, we may mention that the applicant has not stated as to what was the controversy involved in OA No.798 of 1996. He would only mention that in pursuance of the directions of this Tribunal, revised seniority list of JTS came to be issued on 20.12.2007. The applicant has annexed the seniority list aforesaid at Annexure A-2. The same would clearly show that discrepancy, if any, was to be pointed out, and if the same was not to be pointed out, it was to be presumed that the officers had nothing to say in that regard. It is not the case of the applicant that he represented against the seniority list aforesaid. Insofar as, the seniority list of 2010 is concerned, the same has not been filed along with the OA. However, in the prayer clause the applicant has stated that the seniority list has been corrected up to 10.6.2010. As to when the draft seniority list of 2007 was finalized, there are no definite averments in that regard. Be that as it may, the cause of action accrued to the applicant when the 4th respondent was promoted to the grade of STS in the year 1997 despite the fact that the applicant was senior to him in the JTS grade. It is at that stage that the applicant ought to have agitated the issue as regards his seniority over the 4th respondent. Not only that the said respondent was promoted to the STS grade earlier to the applicant, he was upgraded to NFPS scale before the applicant. The applicant would not agitate the matter even at that stage. The decision of the Honble Supreme Court in M. Nagraj (supra) came to be recorded in 2006. Even after the said judgment also, the applicant would not agitate the matter. The Honble Supreme Court in a recent decision in the matter of D. C. S. Negi v Union of India & others [SLP(C) No.7956/2011, CC 3709/2011], decided on 7.3.2011, has held as under:
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non applicant is not at all relevant. There is not even an application seeking condonation of delay. In our view, the matter as regards seniority of the applicant vis-a-vis the 4th respondent cannot be re-opened at this distance of time, as if the plea of the applicant is to be accepted, all promotions based upon accelerated seniority may have to be unsettled.
5. Finding the present Original Application to be barred by time, the same is dismissed in limine. 4.5. The aforesaid order was challenged before the High Court of Delhi by way of W.P. (C) No.5810/2011, which came to be disposed of vide order dated 12.08.2011 with the leave to the petitioner to file an application for review before this Tribunal along with an application seeking condonation of delay in filing the OA. Accordingly, the Applicant filed RA No.377/2011 stating that in the corrected seniority list he was shown junior to the 4th Respondent whereas in the feeder cadres he was always shown senior to the said Respondent. He has also argued that it was obligatory and incumbent on the part of the official respondents to show that the requisite exercise was carried out to prove that there had been no proper representation of the reserved category, as per the principles laid down by the Honble Supreme Court in M. Nagrajs case (supra). He has also pleaded that the Tribunal should not have dismissed the OA in limine as the cause of action had again accrued to him in 2010. The Tribunal, vide order dated 23.08.2012 allowed the RA and restored the OA observing that the aspects of seniority list and non-compliance of the conditions precedent by the respondents have not been dealt with by the Tribunal in its order dated 01.06.2011. Accordingly, this OA is being considered again.
4.6. In this OA, the applicant has sought a direction to the Respondents to declare him Senior to Respondent No.4 in the seniority list of STS of IB(E)S (corrected up to 10.06.2010) in the absence of any rules/instructions/circulars framed by the Respondents in light of the judgment in the case of M. Nagraj and Others (supra). He has also sought revision of the seniority list of STS of I.B.(E)S accordingly.
4.7. During the pendency of this OA, the Applicants has filed MA No.1789/2013 therein seeking a direction to restrain the official respondents from holding DPC for promotion from JTS to STS of IB (E)S under the threat of hunger strike of the members of the reserved categories. They have also stated that vide Annexure MA-2 letter dated 02.07.2013, the Respondents have constituted a Committee for revising the Roster from 1988 onwards for holding a review DPC to grant reservation in promotion within Group A service which is contrary to law.
5. The Official Respondents have filed their reply. However, no reply was filed by the Private Respondents, despite notice. The Official Respondents in their reply have submitted that according to the instructions issued by the Department of Personnel and Training from time to time, there is provision for reservation roster and, therefore, reservation was followed in the case of promotions from JTS to STS.
6. We have heard the counsel for the parties in these two OAs. We have also perused the documents filed by the parties available on record. The question of reservation in promotion is already a settled issue. The five judges Constitution Bench of the Apex Court in M. Nagaraj & Others v. Union of India & Others JT 2006 (9) SC 191, 2006 (8) SCC 2112 held that reservation in promotion per se is not unconstitutional. Therefore, it has upheld the provisions for reservation in promotion for Scheduled Castes and Scheduled Tribes with consequential seniority as contained in Article 16 (4A) and Article 16 (4B) of Constitution. The said Article reads as under:-
(4A) Nothing in this article shall prevent the State from making 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.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. But such reservation is subject to the condition that the State shall form its opinion that the Scheduled Castes and Scheduled Tribes are not adequately represented in the service. The relevant part of the Apex Courts judgment in the aforesaid case is as under:-
122. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State 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 SC/ST in matter 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 of 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.
7. Again in its judgment in Suraj Bhan Meena and Another v. State of Rajasthan and Others (2011) 1 SCC 467, the Apex Court reiterated the conditions precedent for reservation of posts in promotion as inadequacy of representation of members of SCs and STs and ascertainment of the necessity of such reservation. Further, the said judgment held the notifications providing for promotion of members of SCs and STs with consequential seniority issued by State Government without first acquiring quantifiable data regarding inadequacy of representation of SCs and STs in public services has been rightly set aside by High Court. The relevant part of the said judgment reads as under:-
64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution.
65. In effect, what has been decided in M. Nagaraj's case (supra) is part recognition of the views expressed in Virpal Singh Chauhan's case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.
66. The position after the decision in M. Nagaraj's case (supra) is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required.
67. The view of the High Court is based on the decision in M. Nagaraj's case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Scheduled Tribes communities and the same does not call for any interference.
8. Further, in its recent judgment in U.P. Power Corporation Ltd. v. Rajesh Kumar & Others 2012 (4) SCALE 687 decided on 27.04.2012, the Apex Court has held that fresh exercise in the light of the judgment of the Constitution Bench in M. Nagarajs case (supra) is a categorical imperative. The relevant part of the said judgment is as under:-
41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.
9. A Full Bench of this Tribunal has also considered the issue earlier in great detail in its order dated 02.12.2010 in OA No. 2211/2008 - All India Equality Forum and Others v. Union of India and Others. The said order has also directed the Respondent Railways therein not to give accelerated promotion and consequential seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which Article 16(4A) of the Constitution is to operate, are complied with. The concluding part of the said order reads as under:-
37. We have applied our mind to the pleadings and the contentions raised by the learned counsel representing the applicants on the issues as mentioned above, but are of the view that once, in brevity, it is the case of the applicants that when no compliance of pre-conditions as spelled out in M. Nagarajs case has been done, reservation in promotion with accelerated seniority shall have to be worked in the way and manner as per the law settled earlier on the issue. If that be so, we need not have to labour on the issues raised by the applicants, as surely, if the position is already settled, the only relevant discussion and adjudication in this case can be and should be confined to non-observance of the pre-conditions for making accelerated promotions as valid. We have already held above that the railways have not worked out or even applied their mind to the pre-conditions as mentioned above before giving effect to the provisions of Article 16(4A), and for that reason, circular dated 29.2.2008 vide which the seniority of SC/ST railway servants promoted by virtue of rule of reservation/roster has to be regulated in terms of instructions contained in Boards letter dated 8.3.2002 and 13.1.2005, has to be quashed. There is a specific prayer to quash instructions dated 8.3.2002 and 13.1.2005 as well, but there would be no need to do so as the same have been discussed in the case of railways itself in the matter of Virpal Singh Chauhan (supra), and commented upon. While setting aside instructions dated 29.2.2008, our directions would be to not to give accelerated seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which alone Article 16(4A) of the Constitution is to operate, are complied with. No directions in this case can be given as regards seniority of the applicants vis-a-vis those who were appointed with them and have stolen a march over them because of reservation and have obtained accelerated seniority. No such specific prayer has been made either. However, it would be open for the parties to this lis or any one else to seek determination of their proper seniority for which legal proceedings shall have to be resorted to. It would be difficult to order across the board that all those who have obtained the benefit of reservation and have also been accorded accelerated seniority be put below general category candidates who may have been senior to the reserved category employees and became below in seniority on the promoted posts because of conferment of accelerated seniority to the reserved category employees. Surely, for seeking seniority over and above Scheduled Caste and Scheduled Tribe employees, number of things shall have to be gone into, as for instance, as to when was the promotion made and seniority fixed, and whether the cause of general category employees would be within limitation. There can be number of issues that may arise. We have mentioned only one by way of illustration.
10. The High Court of Punjab and Haryana at Chandigarh in CWP No.13218 of 2009 (O&M) Lachhmi Narain Gupta and others v. Jarnail Singh and Others decided on 15.07.2011 has also followed the Apex Courts dictum in the case of M. Nagarajs case (supra) and held as under:-
38. When the principles laid down in the case of M. Nagaraj(supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation in respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos. 5 and 6. The aforesaid fact has also been conceded by the respondent-Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagarajs case (supra) as well as in Suraj Bhan Meenas case (supra).
11. Co-ordinate Benches of this Tribunal has also decided OA No.2434/2012 Liladhar Ramchandi and Others Vs. Government of N.C.T. of Delhi and Others (decided on 27.09.2013) and OA No.2009/2013 Shri Vijender Singh and Others Vs. Commissioner of Police and Others (decided on 24.12.2013) following the aforesaid dictum laid down by the Apex Court. The operative parts of those OAs are as under:-
OA No.2434/20125. It is the specific case of the applicants that the respondents are not bound to make reservations for SCs/STs in the matter of promotions, and however, if they wish to exercise their discretion, and make such provision, they have to collect quantifiable data showing backwardness of the class and inadequacy of the representation of that class. Even if there are compelling reasons, the respondents have to see that the 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, as per the dicta laid down in the aforesaid Judgments. But the respondents, without undertaking any exercise as contemplated by the Honble Apex Court, as aforesaid, and without making any provision for providing reservations in promotions, effected the promotions in various Nursing Cadres, by following the rule of reservation, and further contemplating to make further promotions to higher posts.
6. The respondents vide their reply though not denied the OA averments, but submitted that after the pronouncement of the Judgements in S.Nagaraj and Suraj Bhan Meenas cases (supra), they have not received any Instructions/Guidelines or Office Memorandums/Circulars either to follow those Judgments or orders passed in compliance of the said Judgments, and hence, they have applied the rule of reservations in effecting promotions to various Nursing Cadres. It is further stated that the Department is in the process of finalizing the seniority lists of Staff Nurses and as soon as those lists are finalized, the ad hoc promotions made under the impugned Annexures would be reviewed and further appropriate action as per law would be taken. They further submit that since the impugned promotions are only of ad hoc nature and would be reviewed once the seniority lists of Staff Nurses are finalized, therefore, the interference of this Tribunal is not warranted at this stage.
7. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Ms. P.K.Gupta, the learned counsel for the respondents and also gone through the pleadings on record.
8. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
9. The contention of the respondents that the promotions were effected only on ad hoc basis and hence, they will apply the law laid down by the Honble Apex Court while making regular promotions and till then they maintain the ad hoc promotions is unacceptable, untenable and unsustainable.
10. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned promotion orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review all the promotions effected by applying rule of reservation to the categories of Nursing Sisters, Assistant Nursing Sisters, Deputy Nursing Sisters and Nursing Superintendents and re do the entire exercise of effecting promotions to the said categories, in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, draw the seniority lists in the said categories as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
11. The OA is accordingly allowed in terms of the aforesaid directions. No order as to costs.OA No.2009/2013
8. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Shri N.K.Singh for Mrs. Avniash Ahlawat, the learned counsel for the official respondents No.1 and 2 and Shri Ajesh Luthra for Respondents No.3 to 5 and 7 and Shri A.K.Singh for Respondent No.6 and also gone through the pleadings on record.
9. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
10. The learned counsel for the applicants relied upon the Judgements of the Honble Apex Court in DWARIKESH SUGAR INDUSTRIES LTD V. PREM HEAVY ENGINEERING WORKS (P) LTD., AND ANOTHER, (1997) 6 SCC 450 and submits that the Apex Court has observed in Para 32 as under:
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. He also placed reliance on a Judgment of this Bench in OA No.2434/2012, dated 5.12.2013, to this effect.
11. Shri Ajesh Luthra and Shri A.K.Singh, the learned counsel appearing for the private respondents submit that they belong to Unreserved category and are very much senior to the applicants in the category of Sub Inspector (Executive) and irrespective of the result of the OA, they are entitled for promotion to the post of Inspector, in view of their seniority and in view of availability of the sufficient vacancies. Further, the learned counsel appearing for the private respondents also not disputed the legal position and the applicability of the Judgements of the Honble Apex Court in M. Nagaraj and Suraj Bhan Meena, etc. to the facts of the present case.
12. This Tribunal while issuing notices restrained the respondents from making any further promotions by order dated 11.06.2013. When the MA No.1994/2013 filed by respondents 3 to 5 seeking to vacate or modify the said order, was not found favour by this Tribunal by order dated 06.08.2013, they filed W.P (C) No.6582/2013 and the same was disposed by the Honble High Court of Delhi vide its order dated 21.10.2013 directing this Tribunal to dispose the main OA itself.
13. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons sought to be promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review the impugned order issued by applying rule of reservation and to redo the entire exercise in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, redraw the names of Sub Inspectors (Executive) for admission to Promotion List `F (Exe.) for the vacancy year 2013-14, as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
14. The OA is accordingly allowed in terms of the aforesaid directions. In view of the orders in OA, no orders are necessary in MA 1994/2013 and MA 2753/2013 filed for vacation/modification of interim order dated 11.06.2013 and they are also disposed of accordingly. No order as to costs.
12. In view of the above facts and the law on the subject, we allow both these OAs. Consequently, (i) the impugned Annexure A-1 Roster Register of STS in OA No.588/2011 is quashed and set aside. We further direct the Respondents that till the conditions prescribed in M. Nagarajs case (supra) are fulfilled, they shall grant promotion without following reservation for SC/ST candidates; and (ii) in OA No.1958/2011, we declare that the Applicant is senior to Respondent No.4 in the seniority list of STS Officers corrected up to 10.06.2010 and the said seniority list shall be revised accordingly.
13. The Respondents shall implement the aforesaid direction/declaration by passing appropriate orders within a period of two months from the date of receipt of a copy of this order.
14. There shall be no order as to costs.
Let a copy of this order be placed in both the files.
(Shekhar Agarwal) (G. Geroge Paracken)
Member (A) Member (J)
Rakesh