Central Administrative Tribunal - Delhi
Presently On Deputation As Ad (Audit) & ... vs Union Of India on 20 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 4281/2011
Reserved On:07.05.2014
Pronounced on:20.05.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (J)
Harish Makhija
S/o Shri Kanwal Nain Makhija
R/o Plot No.7, 3rd Floor,
Maa Kalyani Kung,
Kalyan Vihar,
Near CC Colony, Delhi-110009.
Private Secretary,
Employees Provident Fund Organisation,
Bhavishya Nidhi Bhawan,
14 Bhikaji Cama Place,
New Delhi-110066.
Presently on Deputation as AD (Audit) & Welfare
Officer, Head Office,
New Delhi. ..Applicant
By Advocate: Shri K.P. Gupta.
Versus
1. Union of India
Through the Secretary,
Ministry of Labour & Employment,
Sharam Shakti Bhawan,
Rafi Marg,
New Delhi.
2. Central Provident Fund Commissioner,
Employees Provident Fund Organisation,
Bhavishya Nidhi Bhawan,
14 Bhikaji Cama Place,
New Delhi-110066.
3. Anand Kumar
S/o Shri Bal Kishan Singh
R/o F-403, Mangol Puri,
Delhi-110083.
Office Address
Anand Kumar
Private Secretary
Employees Provident Fund Organisation,
Bhavishya Nidhi Bhawan,
14 Bhikaji Cama Place,
New Delhi-110066. .Respondents
By Advocates: Ms. Aparna Bhatt for Respondents No.1 &
2.
Mr. S.N. Sharma for Respondent No.3.
ORDER
Honble Mr. G. George Paracken, Member (J) Applicant has filed this Original Application seeking the following main reliefs:-
(i) Quashing and setting aside the review DPC proceeding held on 11.08.2011 (Annexure A1) whereby 22 officials were found fit for promotion to the post of PS in the pay scale of Rs.6500-200-10500 pre-revised with effect from 14.04.1997 and monetary benefits with effect from 26.09.2000;
(ii) Quashing and setting aside the office order bearing No.HRM-VI/10(3)/2000/PA/Vol.III/24086 dated 23.08.2011 (Annexure A-2) whereby the Respondent No.3 is promoted to the post of Private Secretary on regular basis notionally with effect from 14.07.1997 in the pay scale of Rs.6500-200-10500 with the monetary benefits with effect from 26.09.2000;
(iii) Quashing and setting aside the office order bearing No.14015/1/2011-SS-1 dated 09.08.2011 (Annexure A-4) whereby the respondent No.1 directed to respondent No.2 to convene a review DPC for providing reservation to SC/ST employees on the basis of facts mentioned in the enclosed notes specifically because the same is not in accordance with the judgment and order passed by the Honble Supreme Court in CA Nos.5286-87 of 2005 titled as Bharat Sanchar Nigam Limited Vs. R. Santhakumar Velusamay & Others (Annexure A-7); and
(iv) Appropriate directions may please be issued to the Respondent No.1 & 2 to the effect that they will not consider the name and particulars of Shri Anand Kumar, the Respondent No.3 for grant of promotion to the post of APFC on ad hoc basis in view of the letter dated 11.11.2011 (Annexure A4-A) and they will not promote him on the said post of APFC.
2. The brief facts of the case: The Respondent No.2-Employees Provident Fund Organisation (EPFO for short), carried out restructuring of its Stenographers Cadre comprising of the posts of Senior Personal Assistant, Personal Assistant (Grade-I) and Stenographers Grades II & III, in the year 1993. The total sanctioned strength of the aforesaid grades was 258. Out of them, 251 posts were in operation and their details were as under:-
Sl.No. Name of the Post No. of Posts
1. Stenographer (Grade-III) 180
2. Stenographer (Grade-II) 57
3. Stenographer (Grade-I) (Called Personal Assistant) 13
4. Senior Personal Assistant 01 Total 251 After restructuring, the aforesaid posts were distributed as under:-
Sl.No. Name of the Post No. of Posts
1. Stenographer Grade-D 101
2. Stenographer Grade-C 100
3. Stenographer Grade-A & B 50 Total 251 However, taking into consideration the total sanctioned strength of 258 posts in the Stenographers cadre, the competent authority approved the revised distribution in the three re-designated grades as below:-
Sl.No. Name of the Post & Scale No. of Posts
1. Private Secretary (Rs.6500-200-10500) 52
2. Personal Assistant (Rs.5500-175-9000) 103
3. Stenographer (Rs.4000-100-6000) 103 Total 258
3. Out of the aforesaid 52 posts of Private Secretaries, 23 posts were sanctioned for Headquarters including NATRSS. The vacancy as on 14.07.1997 has been taken as the sanctioned strength of the restructured cadre of PS/PA/Steno circulated vide Office Order dated 22.09.1999. Out of those 23 sanctioned posts as on 14.07.1997, 7 persons whose details are given below were already in position and the balance 16 posts were vacant:-
Sl.No. Name
1. Smt. Madhuri Tulsani Promoted as Sy. PA w.e.f. 7.3.1994
2. Shri Ajay Kumar Verma
3. Smt. Suneet Kaur
4. Shri V.K. Gupta
5. Smt. Vijay Verma
6. Shri B.K. Batra
7. Smt. Santosh Sood
4. As per the seniority list of Stenographers on Regional basis, the following PAs were eligible for promotion to the post of PSs with effect from 14.07.2000 on regular basis:-
Sl. No. Name of the Officials Appointed as PA w.e.f. Date of Eligibility for promotion as PS
1. Smt. Kuki Bhatia 14.7.1997 14.7.2000
2. Shri Pritpal Singh 14.7.1997 14.7.2000
3. Shri Y.S. Rawat 14.7.1997 14.7.2000
4. Shri Geeta Banerjee 14.7.1997 14.7.2000
5. Smt. Santosh Malik 14.7.1997 (Expired on 17.6.2000) 14.7.2000
6. Smt. Pradeep Chand 14.7.1997 14.7.2000
7. Shri Ramraj 14.7.1997 14.7.2000
8. Smt. Surinder Kaur 14.7.1997 14.7.2000
9. Smt. Mona Nichani 14.7.1997 14.7.2000
10. Shri Chandra Prakash 14.7.1997 14.7.2000
11. Shri Dharam Raj Singh 14.7.1997 14.7.2000
12. Smt. Pramjit Kaur 14.7.1997 14.7.2000
13. Shri Harish Makhija 14.7.1997 14.7.2000
14. Shri R.K. Mehra 14.7.1997 14.7.2000
15. Shri Gajanand 14.7.1997 14.7.2000
16. Shri Vinod Gorver 14.7.1997 14.7.2000
17. Shri Virendra Kumar Makhija 14.7.1997 14.7.2000
18. Smt. Mohinder Kaur 14.7.1997 14.7.2000
19. Shri Sunil Kumar Khanna 14.7.1997 14.7.2000
20. Shri D.K. Mishra 14.7.1997 14.7.2000
21. Shri Ashok Bhatt 14.7.1997 14.7.2000
22. Smt. Sunita Arora 14.7.1997 14.7.2000
23. Shri Anand Kumar 14.7.1997 14.7.2000 For promoting 16 PAs to the vacant 16 post of PSs from the Regional Seniority List, the DPC met on 28.06.2006. It took into consideration that reservation is not applicable while restructuring the cadre. Accordingly, as per the recommendation of the DPC, 16 senior-most PAs from the Regional Seniority List were promoted as PSs. The details of the entire 23 PSs including those 7 PSs already in position are as under:-
Sl. No. Name of the Officials Date of promotion as PS
1. Smt. Madhuri Tulsani Promoted as Sy. PA w.e.f. 7.3.1994 Deemed appointment w.e.f.
14.7.1997
2. Shri Ajay Kumar Verma 14.7.1997
3. Smt. Suneet Kaur 14.7.1997
4. Shri V.K. Gupta 14.7.1997
5. Smt. Vijay Verma 14.7.1997
6. Shri B.K. Batra 14.7.1997
7. Smt. Santosh Sood 14.7.1997
8. Smt. Kuki Bhatia 14.7.2000
9. Shri Pritpal Singh 14.7.2000
10. Shri Y.S. Rawat 14.7.2000
11. Shri Geeta Banerjee 14.7.2000
12. Smt. Santosh Malik 14.7.2000
13. Smt. Pradeep Chand 14.7.2000
14. Shri Ramraj 14.7.2000
15. Smt. Surinder Kaur 14.7.2000
16. Smt. Mona Nichani 14.7.2000
17. Shri Chandra Prakash 14.7.2000
18. Shri Dharam Raj Singh 14.7.2000
19. Smt. Pramjit Kaur 14.7.2000
20. Shri Harish Makhija 14.7.2000
21. Shri R.K. Mehra 14.7.2000
22. Shri Gajanand 14.7.2000
23. Shri Vinod Gorver 14.7.2000
5. Later on, the Respondents held a review DPC for filling those 16 posts of PSs in respect of Headquarters on 11.08.2011 on the ground that reservation for SC/ST candidates should have been provided by the DPC held on 28.06.2006. The review DPC observed that the restructured posts in the cadre of Stenographers were circulated vide their letter dated 22.09.1999 and out of the total posts of 52, 23 posts of Stenographers were allocated to Head Office (including NATRSS). Initially, the Respondents took steps to fill up all 52 posts of PSs on the basis of all India seniority and new Recruitment Rules. But consequent upon the order of the Hyderabad Bench of the Central Administrative Tribunal dated 27.03.2006 in OA No.237/2004 filed by one Shri B.T. Krishan Rao, a decision was taken to fill up the restructured posts in the Stenographers cadre of the Respondent No.2 on the basis of regional seniority and old Recruitment Rules. Accordingly, the DPC was held on 28.09.2006 to fill up the 23 posts of PSs pertaining to Headquarters. As 7 persons have already been promoted to PSs on the basis of all India seniority, remaining 16 posts were filled up as per the regional seniority of Stenographers as on 14.07.1997. The said DPC did not apply the reservation roster on the ground that reservation was not applicable on the restructured posts and they were filled up on the basis of seniority-cum-fitness. However, the Ministry of Labour, and Employment vide letter No.14015/1/2011-SS-I dated 09.08.2011, directed that the DOP&Ts OM No.36012/45/2005-Estt.(Res) dated 10.08.2010 has to be strictly followed and accordingly the review DPC should be called to rectify the irregularity/non-application of reservation roster in the additional posts created on restructuring. Accordingly, the review DPC was held on 28.09.2006. The review DPC considered the fact that there were 23 vacancies/posts of PSs in Headquarters out of which 19 fall in the share of General Category, 3 in the SC category and one in the ST category. As per the seniority list of PAs, no ST candidate was available even after extending the zone of consideration. Therefore, it was decided to fill up 22 posts of PSs leaving one post vacant for ST category and carry forward that ST point. As per the seniority list of PA/PS/Stenographer of Headquarters as on 14.07.1997, the officials at Sl.No.1 to 19 belonging to general category except one Shri Ramraj at Sl.No.14 who belongs to SC category but he was to be treated as general category and the officials mentioned at Sl.No.21 and 22 belonging to SC category. Hence, those two SC category officials, namely, Shri R.K. Mehra and Shri Gajanand occupied 2 posts out of three posts of SC category. For the remaining one post of SC category, Shri Anand Kumar at Sl.No.31 in the seniority list of Headquarters as on 14.07.1997 was to be promoted by extending the zone of consideration replacing the Applicant who belonged to the general category and who was at Sl.No.20 . Thus, the review DPC recommended only the following 22 officials fit for promotion to the post of PSs in the grade of Rs.6500-200-10500 (pre-revised) with effect from 14.07.1997 and monetary benefits w.e.f. 26.09.2000:-
Sl. No. Name of the Officials Date of promotion as PS
1. Smt. Madhuri Tulsani Promoted as Sy. PA w.e.f. 7.3.1994 14.7.1997
2. Shri Ajay Kumar Verma 14.7.1997
3. Smt. Suneet Kaur 14.7.1997
4. Shri V.K. Gupta 14.7.1997
5. Smt. Vijay Verma 14.7.1997
6. Shri B.K. Batra 14.7.1997
7. Smt. Santosh Sood 14.7.1997
8. Smt. Kuki Bhatia 14.7.1997
9. Shri Pritpal Singh 14.7.1997
10. Shri Y.S. Rawat 14.7.1997
11. Shri Geeta Banerjee 14.7.1997
12. Smt. Santosh Malik 14.7.1997
13. Smt. Pradeep Chand 14.7.1997
14. Shri Ramraj(SC) 14.7.1997
15. Smt. Surinder Kaur 14.7.1997
16. Smt. Mona Nichani 14.7.1997
17. Shri Chandra Prakash 14.7.1997
18. Shri Dharam Raj Singh 14.7.1997
19. Smt. Pramjit Kaur 14.7.1997
20. Shri R.K. Mehra(SC) 14.7.1997
21. Shri Gajanand(SC) 14.7.1997
22. Shri Anand Kumar (SC) 14.7.1997
6. Thereafter, the Respondents, vide impugned Annexure A-2 order dated 23.08.2011, promoted the Respondent No.3 to the post of PS on regular basis w.e.f. 14.07.1997 in the pay scale of Rs.6500-10500 (pre-revised) in the Headquarters with the monetary benefits w.e.f. 26.09.2000. They have also issued Annexure A-4A letter dated 11.11.2011 considering Respondent No.3 for grant of next promotion to the post of Assistant Provident Fund Commissioner (APFC) on ad hoc basis.
7. The Applicant has challenged the aforesaid orders in this Original Application on the ground that no review DPC could have been conducted by the Respondents in the facts and circumstances of the aforesaid case. He has submitted that the principles of reservation would not apply in cases of only upgradation of the existing posts on account of restructuring. Further, according to him, it is a settled law that where there is only upgradation of existing posts without creation of additional posts, principles of reservation do not apply as upgradation neither involves appointment nor promotion. On the other hand, upgradation involves mere conferment of financial benefits of a higher scale of pay. In the present case, the process was upgradation simpliciter and it was not promotion. He has also stated that the DPC held on 28.09.2006 specifically considered the law that the reservation orders were not applicable while restructuring the cadre by upgrading the existing posts.
8. He has further stated that the Respondent No.3 did not fulfill the criteria for considering him for promotion to the post of PS as he did not complete 6 years minimum service in Stenographers grade and hence he was not eligible for selection to the post of PS w.e.f. 14.07.1997. He was appointed only on 30.12.1991 and he had completed only 5 years, 6 months and 14 days service as on 14.07.1997.
9. The official Respondents have filed their reply. They have submitted the restructuring of stenographer cadre was approved by the competent authority on 29.06.98 and the same were notified on 02.01.1999 and from that date it became an All India Cadre from erstwhile Regional Cadre. Earlier the Stenographer cadre of EPFO had the strength of 251 posts comprising of Steno Gr-III (180), Steno Gr-II (57), Steno Gr I/PA (13) & Sr.PA (01). They were restructured by redistributing all the available posts in the cadre in the ratio of 40:40:20 thereby creating the post of Stenographer (103), PA (103) & PS (52) (total 258). The restructured posts were also got notified on 02.01.1999 in accordance of DOPT instructions No. O.M. No. 10/10/87-CS dated 01.11.1993 (Annexure-I). Initially the department started the process of filing up the re-structured posts by preparing the All India Seniority as per the New RR but the Hyderabad Bench of this Tribunal vide its order dated 27.03.2006 in OA No. 237/04 - Shri B.T. Krishna Rao & Others Vs. Union of India & Others (relying on the order dated 19.02.2003 of Principal Bench of this Tribunal in OA No. 2243/2001 ordered to implement the decision of Executive Committee on restructuring retrospectively from 14.7.97 i.e. the date on which the EC approved the proposal for restructuring. The department implemented the said order by allowing notional promotion to the Pas w.e.f. 17.7.91 consequent to restructuring and directed to fill up the restructured posts on the basis of regional seniority and under the provisions of 1992 Rules. Accordingly, vide Head Office, EPFO letter dated 22.09.1999, the post of Steno, PA & PS were distributed amongst the Regional Offices, ZTIs, NATRSS, ACC(Zones) & Head Officer. The re-structured posts in stenographer cadre was circulated vide Ho letter dated 22.09.1999. Accordingly, out of the total posts of 52, 23 post of PS were allocated to Head Office (including NATRSS). Initially the EPFO took steps to fill up all 52 posts of PS on the basis of All India seniority and new Recruitment Rules but consequent upon the order of CAT, Hyderabad Bench in OA No. 237/2004 (supra) a decision was taken to fill up the re-structured posts in the stenographer cadre in EPFO on the basis of Regional Seniority and under the provisions of 1992 Rules. Accordingly the DPC was held on 28.09.2006 to fill up 23 posts of PS pertaining to Head office. As 7 officials were already promoted to the post of PS while filling up the post of PS on the basis of All India Seniority, remaining 16 posts were filled up as per the Regional Seniority of stenographers as on 14.07.1997 in Head Office. On perusal of the DPC proceedings it was observed that Reservation Roster was not applied stating that those were re-structured posts and the same were filled up on the basis of seniority-cum-fitness.
10. But the M/o Labour & Employment, vide their letter no.14015/1/2011-SS-I dated 9.08.2011, directed that the DOP&T OM No.36012/45/2005-Estt (Res) dated 10.08.2010 shall be followed strictly. In the said letter, they informed that the matter of application of reservation to the existing SC/ST officials in case of cadre restructuring where the total number of posts have been reduced or remained same was taken up with the DOP&T and the DOP&T advised to examine the case in the light of Honble Supreme Courts order dated 29.07.2008 in Civil Appeal No.6934-6946 of 2005 in the case of Union of India Vs. Pushpa Rani & Others. The relevant part of the said order reads as under:-
In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment.
11. Accordingly a Review DPC was held on 11.08.2011 to review the DPC already held on 28.09.06. The committee was also informed about the latest instructions dated 10.08.2010 issued by DOP&T vide OM No.36012/45/2005-Estt.(Res). There were 23 vacancies/Post of PS I Head office out of which 19 fall in the share of General Category, 03 fall in the SC Category and one falls in the ST Category. As per the Regional Seniority list of Stenographer/PAs as on 14.07.1997, no ST candidate was available even after extending the zone of consideration. Hence the DPC recommended to fill up only 22 vacancies of PS leaving one post vacant for ST category which is carried forward. On implementing the Minutes dated 11.08.2011 of the Review DPC two officials of General Category, namely, Shri Harish Makhija (Applicant in this OA) and Shri Vinod Grover who were promoted as PS on regular basis vide recommendation of earlier DPC held on 28.09.2006 and promotion order dated 03.08.2006 became surplus and to regularize their regular promotion two supernumerary post of PS were created.
12. The Private Respondent No.3 has also filed a separate reply stating that based on the Annexure A-15, Govt. of India DOPT OM dated 01.11.1993, Respondent no.2 introduced and approved a Scheme of restructuring of the posts of Senior Personal Assistants/Stenographers in Grade D, C and A & B respectively. The executive Committee of Respondent no.2 in its meeting held on 14.9.1997, approved the above Scheme of Restructuring of posts. As per the scheme, the restructed post of Grade D, C and A and B (merged) of Central Secretariat Stenographers Service shall be in the ratio of 40:40:20 respectively with a view to provide better avenues of promotion to Grade D & C stenographers. The basic features of the scheme, amongst others, were as below:-
(a) that the vacancies arising out of the restructuring will be filled up only from the employees who fulfill the eligibility criteria laid down in the recruitment rules for the posts;
(b) that every year promotions/reversions will be made based on the number of posts at each level determined in the manner provide therein in the scheme.
(c) that the Restructure Scheme has been framed to provide alternative promotional avenues to the Stenographers who shall get at least two promotions in his career.
13. He has also submitted that the Applicant was promoted to the post of Personal Assistant notionally with effect from 14.07.1997 and with monetary benefit with effect from 26.09.2000 in compliance of the order dated 19.02.2003 of the CAT, Principal Bench in OA No.2243/2001. As per the restructured cadres of the Stenographers and others, the post of Stenographers Grade-II and Grade-I(PA) were merged as Personal Assistants and a new cadre of Private Secretary was created. In compliance of the order dated 29.06.2006 passed by the Hyderabad Bench of this Tribunal in OA No. 237/2004 the benefit of notional promotion as PA was granted w.e.f. 14.07.1997 taking into consideration the regional seniority.
14. He has also submitted that before restructuring there was only one post of Sr. PA in the scale of Rs.6500-10500 was available in stenographers cadre. 51 new posts of Private Secretaries were created by restructuring the posts of Steno Grade-I, Steno Grade-II and Steno Grade-III. The restructuring was done on the lines of Central Secretariat Stenographers Services. 258 Stenographers were distributed as per details below:-
Name of the Posts and Pay Scale Number of posts before restructuring Number of posts are restructuring New creation Senior PA now Private Secretary (6500-10500) 01 52 51 Stenographer Grade-I now Personal Assistant (5500-9000) 13 103 90 Stenographer Grade-II (5000-8000) 57 0 Nil Stenographer Grade-III (4000-6000) 187 103 Nil
15. Due to the aforesaid restructuring, the 23 posts of PSs were to be filled up by promotion from the feeder cadre of Personal Assistant. The category-wise distribution post was worked out as General - 19, SC - 3 and ST -1. Therefore, in nutshell, he has submitted that the restructuring of the posts and filling up the posts in each cadre of Stenographer, PA, PS involved were promotion and not upgradation and, therefore, rules of reservation would not apply is wholly misconceived and untenable in the eyes of law.
16. We have heard the learned counsel for the Applicant Shri K.P. Gupta, learned counsel for the Official Respondents Ms. Aparna Bhatt and the learned counsel for Private Respondent Shri S.N. Sharma. The issue regarding restructuring was considered by this Tribunal in OA No.3623/2011 and connected cases Karan Singh and Others Vs. The Secretary, Ministry of Labour and Others decided on 22.04.2014. The operative part of the said order reads as under:-
9. We have considered the rival contentions. It is seen that in the cadres of Assistant and SSA, after restructuring the total number of posts have reduced. The number of posts of Assistant and SSA before restructuring was 73 and 166 respectively and the total was 239. After restructuring, the posts of SSA was abolished and in their place the existing strength of Assistant was increased from 73 to 147. In other words, the total strength of Assistants and SSA before restructuring (73+166= 239) has been reduced to 147. As a result, the Respondents have promoted the SSA en masse as Assistants in the same order of their seniority without following any selection process. However, the All India EPF SC/ST Staff Federation made a representation dated 09.08.2010 that due reservation to the officials to SC/ST categories has not been promoted in the cadre of Assistants Section Officers etc. Thereafter, the Respondents made a reference to DOP&T to ascertain as to whether or not, fresh reservation to te existing SC/ST officials in the case of cadre restructuring is to be provided where the total no. of posts have either been reduced or remained the same. The advice of the DOP&T was to examine the case in the light of the judgment of the Apex Court in Union of India and Others Vs. Pushpa Rani decided on 29.07.2008 2008 (9) SCC 242. Thereafter, the Respondents EPFO examined the case in the light of the aforesaid judgment and came to the conclusion that reservation policy for SC/ST employees is not applicable for the following reasons:-
(i) upgradation of large number of posts was involved;
(ii) these posts could be filled by the existing incumbents in the higher grade without subjecting them to the process of selection; and
(iii) the restructuring exercise did not result in creation of new posts/additional posts which could be filled by promotion by following the procedure of selection.
10. The OM No.36012/45/2005-Estt.(Res.) dated 10.10.2010 issued by the DOP&T regarding treatment of SC/ST candidates promoted on their own merit for grant of reservation relied upon by Respondent M/o Labour & Employment in the impugned letter dated 09.08.2011 has no application. It only says that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. Therefore, the impugned order dated 23.08.2011 has been issued without any justification.
11. As regards the issue of reservation in the case of the restructuring of the cadres is concerned, generally the existing posts are upgraded as it is to posts with higher scale of pay. In such cases, mostly the number of posts in the cadre remains the same. However, there may be occasions, on restructuring of the cadres, the total number of existing posts is increased and in the higher category, additional posts are created. The Gujarat High Court in Union of India Vs. All India Non-SC/ST Telecom Employees Association Special Civil Appeal No.7576 of 1997 decided on 24.03.1999 and the Apex court in All India Non-SC/ST Employees Association (Railway) Vs. V.K. Agarwal and Others (2001) 10 SCC 165 and in Union of India Vs. V.K. Sirothia 2008 (9) SCC 283 held that if the total number of existing posts remain the same and certain employees get the higher pay scales due to the reclassification of the different scales of pay, it would be only a case of upgradation of posts and not creation of any new posts. Hence, the principle of reservation would not be applicable in such cases. In other words unless some additional posts are created by way of restructuring, reservation of posts for SC and ST candidates cannot be resorted to. Again, in its judgment in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy and Others (2011) 9 SCC 510, the Apex Court held that if there is mere upgradation of posts, as contrasted from promotion, reservation provisions would not apply. But in cases where no additional posts were created, but where a process of selection was involved in the upgradation, the process has to be considered not as an upgradation simplicitor, but a process of promotion and therefore the principles of reservation would be attracted. In the said judgment, the Apex Court has also considered its earlier judgments in the cases of V.K. Agarwal and Others (supra) and V.K. Sirothia (supra) as well as the judgment of the Gujarat High Court in Union of India vs. All India Non SC/ST Telecom Employees Association (supra). The relevant part of the said judgment is as under:-
13. The said order is challenged in these appeals by special leave by the appellant. The appellant has put forth the following contentions:
(i) There is a clear distinction between upgradation and promotion. While promotion involves advancement in rank, grade or both and is always a step towards advancement to higher position, grade or honour, upgradation does not involve promotion to a higher position and the pedestal of the employee remains the same and the employee is merely conferred some financial benefits by granting a higher pay scale, to overcome stagnation. The BCR scheme introduced as per order dated 16.10.1990 was a scheme of upgradation and not promotion.
(ii) Where there is only upgradation of existing posts, with creating additional posts, principles of reservation would not apply. The Tribunal and the High Court committed a serious error by treating upgradation as a promotion to which reservation rules would apply. The Tribunal and the High Court ought to have followed the decision of this Court in All India Employees Association (Railways) vs. V.K. Agarwal - 2001 (10) SCC 165 and the decision of the Gujarat High Court dated 24.3.1999 in Special Civil Application No.7576 of 1997 - Union of India vs. All India Non SC/ST Telecom Employees Association.
14. Article 16(4) enables the State to make any provision for reservation of appointment or posts in favour of any backward classes of citizens. Article 16(4A) enables the State to make 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 Scheduled Castes and Scheduled Tribes, which in the opinion of the State, are not adequately represented in the services under the State. As upgradation involves neither appointment nor promotion, it will not attract reservation. Upgradation involves mere conferment of financial benefits by providing a higher scale of pay. If there is mere upgradation of posts, as contrasted from promotion, reservation provisions would not apply. [See : All India Employees Association (Railways) vs. V.K. Agarwal - 2001 (10) SCC 165 and Union of India vs. V. K. Sirothia - 2008 (9) SCC 283].
15. In V.K. Agarawal this Court held:
"It appears from all the decisions so far that if as a result of reclassification or readjustment, there are no additional posts which are created and it is a case of upgradation, then the principle of reservation will not be applicable. It is on this basis that this Court on 19.11.1998 had held that reservation for SC and ST is not applicable in the upgradation of existing posts and CA No.1481 of 1996 and the connected matters were decided against the Union of India. The effect of this is that where the total number of posts remained unaltered, though in different scales of pay, as a result of regrouping and the effect of which may be that some of the employees who were in the scale of pay of Rs.550-700 will go into the higher scales, it would be a case of upgradation of posts and not a case of additional vacancy or post being created to which the reservation principle would apply. It is only if in addition to the total number of existing posts some additional posts are created that in respect of those additional posts the reservation will apply, but with regard to those additional posts the dispute does not arise in the present case. The present case is restricted to all existing employees who were redistributed into different scales of pay as a result of the said upgradation."
(emphasis supplied)
16. The decision of this Court in V.K. Sirothia arose from a decision of the Allahabad Bench of the Tribunal which expressed a similar view (in V.K. Sirothia vs. Union of India - O.A. No.384/1986). The Tribunal held:
"The restructuring of posts was done to provide relief in terms of promotional avenues. No additional posts were created. Some posts out of existing total were placed in higher grade to provide these avenues to the staff who were stagnating. The placement of these posts cannot be termed as creation of additional posts. There were definite number of posts and the total remained the same. The only difference was that some of these were in a higher grade. It was deliberate exercise of redistribution with the primary object of betterment of chance of promotion and removal of stagnation."
The Union of India challenged the said order of the Tribunal and this Court by a brief order dated 19.11.1998 (Union of India vs. V.K. Sirothia - 2008 (9) SCC 283) dismissed the appeal by a brief order. The relevant portion of the said order is extracted below :
"The finding of the Tribunal that "the so-called promotion as a result of redistribution of posts is not promotion attracting reservation" on the facts of the case, appears to be based on good reasoning. On facts, it is seen that it is a case of upgradation on account of restructuring of the cadres, therefore, the question of reservation will not arise. We do not find any ground to interfere with the order of the Tribunal."
17. We may next consider the concepts of `promotion' and `upgradation'. In Lalit Mohan Deb, this Court explained the difference between a promotion post and a selection grade :
"It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency."
18. In Tarsen Singh vs. State of Punjab - 1994 (5) SCC 392, this Court defined `promotion' thus:
"Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour."
xxxx xxxx xxxx
22. But even in cases where no additional posts were created, but where a process of selection was involved in the upgradation, the process has to be considered not as an upgradation simplicitor, but a process of promotion and therefore the principles of reservation would be attracted. We may refer to the Constitution Bench decision of this Court in Ram Prasad (supra) where this Court held that appointment from senior scale to selection scale is a promotion though it may not be a promotion to a higher position and consequently the reserved candidates are entitled to be promoted to the selection scale by way of roster points. For this purpose, the Constitution Bench relied upon the decision of Fateh Chand Soni.
xxxx xxxx xxxxx
27. In Union of India vs. Pushpa Rani - 2008 (9) SCC 242, this Court examined the entire case law and explained the difference between upgradation and promotion thus :
"In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word `promotion' means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word `promotion' has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.
Once it is recognized that additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude applicability of policy of reservation while effecting promotions, more so because it has not been shown that procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion.
Policy contained in Letter dated 9.10.2003 has been framed with a view to strengthen and rationalize the staffing pattern. For this purpose, the Ministry of Railways undertook review of certain cadres. The basis of the review was functional, operation and administrative requirement of the Railways. This exercise was intended to improve efficiency of administration by providing incentives to existing employees in the form of better promotional avenues and at the same time requiring promotees to discharge more onerous duties.
The policy envisaged that additional posts becoming available in the higher grades as a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility including minimum period of service and who are adjudged suitable by the process of selection. This cannot be equated with upgradation of posts which are required to be filled by placing existing incumbents in the higher grade without subjecting them to the rigor of selection. It has therefore to be held that the Railway Board did not commit any illegality by directing that existing instructions with regard to the policy of reservation of posts for SC and ST will apply at the stage of effecting promotion against the additional posts. The Tribunal committed serious illegality by striking down para 14 of letter dated 9.10.2003. Matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of employees fall within the exclusive domain of employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated by mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
(emphasis supplied)
28. In Pushpa Rani, this Court while considering a scheme contained in the letter dated 9.10.2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill-up such posts from promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, reservation rules were applicable.
29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge :
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is advancement to a higher position and advancement to a higher pay scale - are described by the common term `promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation. A
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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).
17. 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.2434/2012
5. 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.
18. In view of the above position, both thse OAs are allowed. As far as OA 3326/2012 is concerned, we declare that the official respondents have wrongly applied reservation policy in the matter of appointment/fitment to the post of Inspector (Stenographer) and wrongly appointed the private respondents to the aforesaid post. Consequently, we quash and set aside the impugned order of the official respondents No.52985-53085/CB-V/PHQ dated 14.08.2012 and notification No.52983/CB-V with notification No. 52984/CB-V dated 14.08.2012 to the extent of promoting the private Respondents to the rank of Inspector (Stenographer) and their letter No.55032-35/CB-V (PHQ) dated 27.08.2012 rejecting the representations of the Applicants against the aforesaid order dated 14.08.2012. Further, we direct the Respondents to consider the Applicants to the post of Inspector (Stenographer) w.e.f. the date their counterparts have been appointed to the said post with all consequential benefits.
19. As far as OA No.3623/2011 is concerned, we quash and set aside the impugned orders dated 09.08.2011 and 23.08.2011. We also declare that the action of the Respondents in applying reservation against the upgraded posts on account of the restructuring of the Group B and C cadre is illegal and wrong. Consequently, the respondents are directed to restore the promotion of the Applicants existed before passing the aforesaid impugned orders. The Respondents shall also pass appropriate order in implementation of the aforesaid directions.
20. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order.
21. There shall be no order as to costs.
17. In view of the above position, this OA is allowed. Accordingly, we quash and set aside (i) the review DPC proceedings held on 11.08.2011, (ii) the office order No.HRM-VI/10(3)/2000/PA/Vol.III/24086 dated 23.08.2011 whereby the Respondent No.3 was promoted to the post of Private Secretary on regular basis notionally with effect from 14.07.1997 in the pay scale of Rs.6500-200-10500 with the monetary benefits with effect from 26.09.2000 and (iii) the office order No.HRM-VI/10(3)/2000/PA/Vol.III/24051 dated 23.08.2011 conveying the decision of the aforesaid Review DPC whereby it did not recommend Shri Harish Makhija, PA & Shri Vinod Grover, PA for promotion to the post of PS after application of Reservation Roster as 1 post for ST is carried forward due to non-availability of eligible candidate and 1 SC candidate is promoted by extending the zone of consideration. Further, we direct the Respondent No.1 to restore the order dated 03.10.2006 promoting Shri Harish Makhija, PA & Shri Vinod Grover, PA. The aforesaid order/directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
18. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
Rakesh