Central Administrative Tribunal - Delhi
Ramesh Chandra vs Union Of India Through Secretary on 6 February, 2013
Central Administrative Tribunal Principal Bench OA No.2547/2011 New Delhi, this 6th day of February, 2013 Honble Shri Jog Singh, Member (J) Honble Smt. Rajwant Sandhu, Member (A) Ramesh Chandra S/o late Sh. Ram Kunwar Singh R/o Kaswa Pahasu, Mohalla Kajikhel, Distt. Bulandshahr. Applicant (By Advocate: Shri Padma Kumar S.) Versus 1. Union of India through Secretary, Ministry of Communication & IT, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi 110 001. 2. The Chief Post Master General, U.P. Circle, Lucknow. 3. The Post Master General, Agra Region, Agra. 4. The Superintendent of Post Office, Bulandshahr Division, Bulandshahr. Respondents (By Advocate: Shri R. C. Gautam) ORDER (ORAL) By Smt. Rajwant Sandhu, Member (A):
This Original Application has been filed by the applicant, who belongs to Scheduled Caste and is a Gramin Dak Sevak (GDS) of the Postal Department, for appointment as Postman, on the basis of departmental examination for promotion, against the post reserved and available under ST quota since no ST candidate was selected/appointed against existing vacancy.
2. Brief facts of the case are that the applicant joined the respondent Department as Gramin Dak Sewak (GDS) against regular vacancy in the year 2001. In 2006, respondent no.4 had issued a communication for departmental examination pertaining to promotion to the post of Postman and pursuant thereof the applicant, being eligible, applied for the said post. He appeared in the written examination and the result was declared in 2008. It is the case of the applicant that through an application filed by him under Right to Information Act, 2005, he learnt that having obtained 80 marks out of 150 in the examination he had qualified for selection but another person having more marks and belonging to SC had been given appointment as Postman. Therefore, he made a representation dated 08.05.2008 requesting the respondents to consider his case for promotion to the post of Postman against ST vacancy, which remained unfilled due to non-availability of ST candidate. Since he received no response to his representation, he filed OA No.299/2010 before the Allahabad Bench of the Tribunal and the same was disposed of vide order dated 26.02.2010 with the direction to the respondents to consider and decide the representation made by the applicant. The respondents, vide order dated 07.09.2010 rejected the claim of the applicant relying upon OM dated 06.11.2003 issued by DOP&T on the ground that after issue of the said OM, exchange of reservation between SCs and STs was not permissible. Feeling aggrieved, the applicant challenged the impugned order dated 07.09.2010 before the Principal Bench of the Tribunal by filing OA No.1036/2011, which was dismissed as withdrawn vide order dated 15.03.2011 with liberty to the applicant to file a better OA including the new information obtained by him.
3. In OA No. 2547/2011, it has been stated on behalf of the applicant that he had obtained information from the Department of Posts, Office of the Superintendent of Post Offices, Bulandshahr Division on 17.02.2011 (Annexure-III) as under:-
1. The strength of the cadre with the numbers of SC and ST employees is not complete till now in this division.
2. The post based roster has not been started in this division till now. The applicant has stressed that the post-based roster had not been started, as per the Departments own admission, the Department could not apply the DOP&T OM dated 06.11.2003 to the case of the applicant and take the view that exchange of reservation between SCs and STs was not permissible. Hence, the impugned order dated 07.09.2010 has been challenged.
4. In the counter reply, the respondents have admitted that while the applicant obtained 80 marks out of 150 in the aggregate of three papers in the written examination for promotion to the post of Postman, but one Sh. Bhopal Singh, who was selected and appointed to the post in question against SC vacancy, had obtained 103 marks out of 150. The representation of the applicant for exchange of vacancies and appointment against the available post for ST candidate had been rejected in view of DOP&T OM dated 06.11.2003 which unambiguously stated that exchange of reservation between SCs and STs was not permissible henceforth. Moreover, in the notice dated 22.02.2006 (Annexure R/2) for the departmental examination for promotion to the post of Postman issued by the Superintendent of Post Offices, Bulandshahr, there was only one vacancy in the Division for departmental quota and the more meritorious SC candidate was appointed against the same.
5. We have carefully gone through the records of the case and heard learned counsel for the parties.
6. Counsel for the applicant stressed that OM dated 06.11.2003 was not applicable to the case in hand since these instructions had been issued by the DOP&T as a follow up to the judgment of Honble Supreme Court in the matter of R. K. Sabharwal versus State of Punjab (AIR 1995 (2) SC 745). As per the judgment of Sabharwals case (supra) it had been held that -
The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15, retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation. From the reading of this para, it was amply clear that only after covering the backlog for reserved categories, the post-based roster is to operate. The Honble Apex Court had 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 prescribed percentages of reservation.
7. Counsel for the applicant also drew our attention to Paragraph 2 of the DOP&T OM dated 06.11.2003 wherein it has been stated as under:-
2. Basic principle of post based reservation is that the number of posts filled by reservation by any category in a cadre should be equal to the quota prescribed for that category. If exchange of reservation between SCs and STs is permitted, number of employees of one reserved category of employees appointed by reservation will go beyond reservation prescribed for that category. It would be against the spirit of post based reservation. Therefore, after introduction of post based reservation, it is not permissible to fill up a post reserved for Scheduled Tribes by a Scheduled Caste candidate or vice-versa by exchange of reservation between SCs and STs. He emphasized that the OM dated 06.11.2003 had only clarified that it was not permissible to fill the post reserved for ST by SC candidates or vice-versa by exchange of reservation between SCs and STs after introduction of post based roster. As per the judgment of Honble Apex Court in Sabharwals case (supra), the post-based roster would come into effect only after the backlog of vacancies for SCs and STs were filled. The response of the Department to various queries under RTI Act made by the applicant made it clear that the quota of SCs and STs had not been filled in three Divisions, hence the question of introducing the post-based roster did not arise and consequently the exchange of reservation between SCs and STs continued to be permissible. He further emphasized that the applicant was a candidate belonging to SC category who should be given added consideration as he had worked hard to qualify the promotion examination and should not be denied the same merely on technical grounds.
8. Further, counsel for the applicant drew our attention to Section VIII of Guidelines relating to promotion prospects of Postman/V.P./M/Gs (Annexure R/1) wherein it is stated that Postman shall be selected from Group D employees and EDAs who appeared in a common examination. It has been mentioned in Paragraph 1(iii) that if sufficient number of EDAs are not recruited from a Division, the vacancies shall be thrown open to all the EDAs of the Postal Divisions falling in the Zone of Regional Director instead of only neighbouring divisions. He stated that in response to RTI query made by the applicant, the Senior Superintendent of Post Offices, Agra Division had conveyed through letter dated 30.07.2012 that during the period 2000-2006, one ST vacancy in the cadre of Postman was available in 2004 as well as in 2005. It was also informed that during this period, no Postman had been appointed against ST quota. Another letter of even date on the record indicates that there is a backlog of vacancies (one each in the year 2000, 2001 and 2002) reserved for STs in the cadre of Postman in Jhansi Postal Division that could not be filled on account of ST candidates not being available even upto the year 2006. Hence, the applicant could be considered for exchange of vacancy with ST and appointed in other Divisions of Agra Zone and not just in Bulandshahr Division.
9. Learned counsel for the respondents stressed that the decision of the Department of Posts in this matter was based on the guidelines issued by the DOP&T through various OMs from time to time and under these instructions, the exchange of vacancies between SCs and STs was not permissible. Besides, no vacancy existed for ST category in Bulandshahr Division.
10. Having heard the learned counsel for the parties and perused the record of the case carefully, we are satisfied that there is indeed a backlog of posts reserved for SCs and STs in the cadre of Postman in the Agra Zone of the Department of Posts. Admittedly, the post-based roster has not been started in the Divisions of this Zone on this account and, hence, O.M. dated 06.11.2003 does not apply strictly. Consequently, the restriction on exchange of vacancies between SC and ST would also not appear to be applicable in this case. The applicant, while filing his application dated 26.07.2006 for the Postman examination, 2006 had given his option for posting, in the event of selection as Postman, as Bulandshahr, Aligarh and Ghaziabad Divisions.
12. Considering the totality of facts and circumstances of the case, present Original Application is allowed directing the Respondent Nos.3 and 4 to consider the case of the applicant for appointment as Postman in Agra Zone against ST vacancy, by allowing exchange with SC vacancy, if such a vacancy is available in any of the Divisions indicated by the applicant while filing his application dated 26.07.2006. Appropriate orders may be passed within a period of three months from the date of receipt of a copy of this order under intimation to the applicant. No costs.
(Smt. Rajwant Sandhu) (Jog Singh)
Member (A) Member (J)
/naresh/