Jammu & Kashmir High Court
Daulat Ram Panhotra vs Comptroller And Auditor And Ors. on 3 November, 2017
Author: Alok Aradhe
Bench: Alok Aradhe, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No.152/2008
MP No.170/2008
Date of order:03.11.2017
Daulat Ram Panhotra Vs. Comptroller And Auditor and Ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Tashi Rabstan, Judge
Appearing counsel:
For Petitioner/Appellant(s) :Mr. M K Bhardwaj, Sr. Advocate with
Mr. Gagan Kohli, Adv.
For respondent (s) :Mrs. Sindhu Sharma, ASGI
Per Alok Aradhe,J:
1 In this petition, the petitioners have assailed the validity of the order dated 05.07.2007 passed by the Central Administrative Tribunal, Chandigarh Bench by which original application preferred by the petitioners seeking their promotion to the post of Accounts Officer w.e.f 29.09.1997 and 30.04.2004 respectively, has been dismissed. The petitioners also seek quashment of the order passed by the Central Administrative Tribunal as well as the direction to the respondents to promote the petitioners w.e.f.29.09.1997 and 30.04.2004 as Accounts Officer with all consequential benefits against the vacancies reserved for Scheduled Caste candidates. In order to appreciate the petitioners' grievance few facts need mention which are stated infra.
2 The petitioners were holding the post of Accounts Officer at the relevant time. The petitioner No.1 has superannuated on 30.04.2007. Similarly, petitioner No.2 has superannuated in the year 2012 during the pendency of this petition. Initially, there were three sanctioned posts of Accounts Officer. However, sanction was accorded to the creation of ten casual temporary posts in the audit wing of Accounts Officers vide order dated SWP No.152/2008 MP No.170/2008 Page 1 of 6 09.04.1993. The Department of Personnel and Training, Government Of India issued an order Annexure-B dated 02.07.1997 by which detailed guidelines were issued for implementation of the judgment of Supreme Court of India in the case of R K Sabarwal vs. State of Punjab and J C Malik v. Ministry of Railways by which it was provided that the reservation of jobs for backward classes should apply to the posts and not to the vacancies which may appear in the cadre. The cadre strength of Accounts Officer in the establishment of respondent No.2 was 13 as on 2.7.1997 which included one Accounts Officer namely Smt Pushpa Devi who belong to Scheduled Caste category, who was promoted to the post of senior Accounts Officer along with general category candidates on 29.09.1997. It is the case of the petitioners on accounts of promotion of Smt Pushpa Devi, roster point for scheduled caste category candidates became available and the petitioner No.1 being senior most was entitled for promotion to the post of Accounts Officer so as to ensure 15 per cent reservation for Scheduled Caste category candidates in terms of Office Memorandum dated 02.07.1997.
3 The official respondents however promoted the candidates from general category without adhering to the roster point prescribed for reservation. The petitioners submitted various representations seeking promotion to the cadre of Accounts Officer. However, ignoring the formula of calculation of posts and application of post based roster, their representations were rejected vide communications dated 26.08.1998, 25.09.2003 and 17.03.2004. However instead of considering the case of petitioners for promotion, the official respondents promoted respondent No.4 on the post of Accounts Officer by an order dated 30.04.2004. The petitioners thereupon filed an original application in the year 2004 before the Chandigarh Bench of the Administrative Tribunal.
SWP No.152/2008 MP No.170/2008 Page 2 of 64 The respondents filed preliminary objections in which inter alia it was stated that the original application has been filed after a period of six years from the date of accrual of cause of action and therefore the same is barred under Section 21 of the Administrative Tribunal Act. It was stated that on commencement of post based roster w.e.f. 2.7.1997, there were three sanctioned post in the cadre of Accounts Officer which continue. In addition, six casual temporary posts were sanctioned which were only meant for adjustment for migrants at Jammu and not for promotional purpose. It was also pleaded that recruitment to the post of Account Officers is done by two separate methods i.e. seniority cum fitness and by selection and as per standing instructions and recruitment rules, three posts of Account Officers were allocated as two and one for maintaining two rosters that is for Y category and X category against the sanctioned strength of three posts in the cadre of Account Officers, 11 Accounts Officers were in position as on 2.7.1997. Out of these 11 incumbents, 7 were promoted earlier under Y category who was plotted against point number I and II under the initial recruitment and from replacement point number I to V in the 13 point roster as on 2.7.1997. It was also stated out of seven incumbents' posts in Y category roster, one belongs to SC category and therefore there was no backlog of SC category candidate in their roster on 2.7.1997. Similarly, under the X category all four points were occupied by the incumbents which were meant for unreserved category candidates. It was also averred that promotions thereafter made on 09.10.2001, 22.10.2001, 31.07.2003 and 30.04.2004 which were made after commencement of the post based roster were made against replacement point number VI, VII and VIII of roster under Y category and against replacement number IV which was meant for X category and all these points were meant for unreserved category candidates and did not involve any reservation.
SWP No.152/2008 MP No.170/2008 Page 3 of 65 The Central Administrative Tribunal by the impugned order has dismissed the original application preferred by the petitioners inter alia on the ground that in the facts of the case, a candidates belonging to the Scheduled Caste category can be considered for promotion if he falls within the zone of consideration. It was further held that petitioner No. 1 has been given promotion strictly in accordance with the model roster and the prayer to quash the orders dated 25.09.2003, 17.03.2004 and 23.01.1998 is misconceived.
6 Learned senior counsel for the petitioners submitted that after expansion of the cadre, all the posts of Account Officers were filled up by the candidates belonging to general category and one post was de-reserved on 6.11.2006 which was reserved for SC category candidate. It is also argued that without according consideration to the case of the petitioners, the official respondents have promoted respondent No.4. It is further submitted that while making promotions to the post of Account Officers, the official respondents have not appreciated the fact that reservation of jobs for backward classes applies to posts and not to the vacancies. Lastly, it is argued that fragmentation of posts into X and Y category is not permissible as the same is in violation of order dated 2.07.1997. On the other hand, learned ASGI has taken us through the preliminary objections filed on behalf of the respondents and has pointed out that when the post based roster point became effective, the petitioners were not under the zone of consideration and the petitioner No.1 has rightly been promoted. It is further submitted that promotions to the post of Accounts officer have been made as per the roster prescribed for reservation and the order passed by the Tribunal is well reasoned and does not suffer from any error apparent on the face of record warranting interference of this court under supervisory jurisdiction.
SWP No.152/2008 MP No.170/2008 Page 4 of 67 We have considered the submissions made by learned counsel for the parties and have perused the record. The respondents have produced the seniority lists of Assistant Account Officers before the Tribunal. From perusal of the aforesaid list, the Tribunal has recorded the finding that when the roster point for promotion became available, the petitioner No.1 was at Serial No.9, whereas petitioner No.2 was at Serial No.32 in the seniority list. On the basis of the records, the Tribunal has recorded a finding that promotions to the post of Account Officers have been made in June 1992, August 1993, September 1993 and November, 1994. One Pushpa Devi was promoted as Account Officer in the year 1993 against a vacancy reserved for SC category candidate which is point number 14 in the roster. Thereafter the official respondents realized that it had been promoting people even against ten casual posts and the same was found to be irregular and a direction was issued not to promote persons. However, in respect of persons who were already promoted, steps were taken to regularize them as per roster point. On operation of the post based roster, in the zone of consideration, no person was found who belong to the reserved category.
8 Thereafter vacancy became available in the year 2005 and accordingly the petitioner No.1 was promoted. It has also been observed by the Tribunal that against ten posts which were casual and temporary, promotions should not have been made. It has also been held that as per model 13 point roster, the respondents have not committed any illegality while considering the case of the petitioners for promotion. The petitioner No. 1 has already been promoted strictly in accordance with the model roster whereas the petitioner No.2 did not figure in the zone of consideration. It is pertinent to note that the assertion made on behalf of respondents that the petitioners were not under the zone of consideration has not been disputed on behalf of the petitioners. It is also pertinent to note that the Tribunal itself has recorded a finding that the promotions against the casual posts have been SWP No.152/2008 MP No.170/2008 Page 5 of 6 made which is illegality, therefore, the benefit of the same cannot be granted to the petitioners in any case as there is no concept of negative equality in law.
9 The order passed by the Tribunal neither suffers from any infirmity nor any error apparent on the face of record warranting interference of this Court in exercise of supervisory jurisdiction under Section 104 of the Constitution of State of Jammu and Kashmir read with Article 227 of the Constitution of India.
In the result, we do not find any merit in the writ petition. The same fails and is hereby dismissed along with connected MP.
(Tashi Rabstan ) (Alok Aradhe)
Judge Judge
Jammu
03.11.2017
Raj Kumar
SWP No.152/2008
MP No.170/2008 Page 6 of 6