Central Administrative Tribunal - Delhi
Paras Nath Verma vs Commissioner Of Police & Ors. Through on 24 December, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.2009/2013 M.A.No.1994/2013 M.A.No.2753/2013 M.A.No.2754/2013 Order Reserved on: 17.12.2013 Order pronounced on 24.12.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Shri Vijender Singh S/o Late Bhagwan Singh R/o RZ E-51, West Sagar Pur New Delhi. Naresh Sangwan S/o Sh. Harpat Singh R/O Flat No.608, Manchahat Apartment Sector-10, Dwarka, New Delhi. Lokesh Sharma S/o Kapil Dev Sharma R/o D-63/1A, Flat No.8 Prayavaran Complex, Neb Sarai Road New Delhi 30. Naveen Kumar S/o Late Sh. Rajender Kumar R/o A-3/15, Sector-18 Rohini Delhi 89. Paras Nath Verma S/o Sh. Atal Bihari Verma R/o D-65B, 3rd Floor, F.F.Enclave IGNOU Road, Neb Sarai New Delhi 65. Applicants (By Advocate: Shri M.K.Bhardwaj) Versus Commissioner of Police & Ors. through The Commissioner of Police HQ IP Estate, New Delhi The Joint Commissioner of Police Hqrs, IP Estate, New Delhi. Respondents Praveen Kumar Yadav S/o Sh. B.K.Yadav R/o Village Khera Dabar New Delhi. Ajay Singh Negi S/o Late Sh. Vijay Singh Negi R/o E-29, Lajpat Nagar-1 New Delhi 24. Sanjay Kumar S/o Late Sh. Ramashray Chaudhary R/o F-804, Timarpur Delhi 54. Raman Kumar Singh S/o Late Sh. Rajeshwar Prasad Singh R/o D-57, Sarita Vihar New Delhi 110 076. Rajeev Kumar Vats S/o Late Sh. Virendra Kumar Sharma R/o T-221/1, Gali No.1, Gautampuri Delhi 110 053. Respondents (By Advocates: Shri Ajesh Luthra and Shri A.K.Singh for the private respondents and Sh. N.K.Singh proxy of Mrs. Avnish Ahlawat for the official respondents) O R D E R By V. Ajay Kumar, Member (J):
MA No.2754/2013 filed for impleadment as Respondent No.7 is allowed, in the circumstances and in the interest of justice.
2. The applicants are presently working as Sub Inspectors in Delhi Police and belong to the batch of 1996. The next promotional post is the Inspector of Police and for which the applicants are qualified and eligible.
3. It is submitted that the respondents instead of effecting promotions from the post of Sub Inspector to the post of Inspector as per rules and as per the law of the land, trying to apply the rule of reservations to SC/ST category candidates in the matter of promotions as Inspectors against the settled principles of law as held by the Honble Apex Court in M.Nagaraj v. Union of India & Others, (2006) 8 SCC 212 by issuing the impugned order dated 11.03.2013 by calling the service particulars of juniors to the applicants in respect of Sub Inspectors (Executives) for admission of their names to Promotion List `F (Exe.) for the vacancy year 2013-2014, ignoring the claims of the applicants.
4. A Constitution Bench of the Honble Supreme Court of India in M. Nagaraj & Others v. Union of India (2006) 8 SCC 212, while upholding the 77th, 81st, 82nd and 85th Constitutional amendments held as under:
The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4).
They do not alter the structure of Article 16(4).
They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335.
These impugned amendments are confined only to SCs and STs.
They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.
xxxxxxxxxx xxxxxxxxxxxxxxxxx .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.
5. In Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, the Honble Apex Court held as follows:
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.
6. 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 Judgements. 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, trying to effect the promotions to the post of Inspector by applying the rule of reservation.
7. 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 Judgements or orders passed in compliance of the said Judgements, and hence, they have applied the rule of reservations in effecting promotions to the psot of Inspectors.
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 Judgement 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.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/