Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Directorate Of Education Through on 3 September, 2013
Central Administrative Tribunal Principal Bench OA No.869/2012 Reserved on: 02.05.2013 Pronounced on:03.09.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) Munnu Lal Mishra D-78, Garima Garden Colony, Sahibabad, Ghaziabad, Uttar Pradesh 201 005. Applicant (By Advocate: Shri Rajan Mani) Versus 1. Directorate of Education through Its Director, Government of National Capital Territory of Delhi, Old Secretariat, Delhi-110 054. 2. Secretary, Education, Government of National Capital Territory of Delhi, Old Secretariat, Delhi-110 054. 3. Union Public Service Commission, Through its Secretary, Dholpur House, Shahjahan Road, New Delhi 110 069. Respondents (By Advocate: Shri Amit nand) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
The instant Original Application is directed against the reservation roster for the post of Education Officer/Assistant Director of Education (hereinafter referred to as EO/ADE) prepared by the respondent no.1 furnished to the applicant vide letter dated 28.11.2011. The OA further seeks to challenge the Advertisement dated 23.01.2010 as being illegal and incorrect on account of not making proper reservation roster for persons with disabilities.
2. The applicant has sought the following relief(s):-
(a) Quash the impugned reservation roster for persons with disabilities for posts of Education Officer/Assistant Director of Education prepared by the Respondent Directorate of Education and direct the said respondent to prepare a fresh reservation roster incorporating not only the 22 vacancies filed since 1996 but also the 20 fresh vacancies advertised on 23.01.2010;
(b) Restrain the respondent Directorate of Education from treating the appointment of Shri Udhava Singh Kurmi as against reserved vacancy for orthopedically disabled persons;
(c) Direct the respondents to issue a corrigendum to the advertisement dated 23.01.2010 reserving one vacancy in post of Education Officer/Assistant Director of Education for blind or visually impaired persons and one such vacancy for orthopaedically disabled persons; and
(d) Direct the respondent to duly consider the application of the applicant herein for the post of Education Officer/Assisant Director of Education against a vacancy reserved for blind /visually impaired persons according to prayer (c) hereinabove; and
(e) Impose exemplary costs on the respondents for their negligence and non-application of mind in perpetuating their illegalities and denying persons with disabilities their proper share of reserved vacancies because of which the applicant is left with no option but to approach this Honble Tribunal for the second time on this issue; and
(f) Provide such other and further relief as this Honble Tribunal may deem fit and proper.
3. The instant matter is much litigated and is on its second round to this Tribunal. The case of the applicant, in brief, is that he is a physically challenged person with vision related disability duly supported by a certificate from the competent authority and is presently working as Principal in A.C.C. government Sarvodaya Bal Vidyalaya, Jhilmil Colony, Delhi under respondent no.1. The respondent no.1 had issued an advertisement dated 23.01.2010 calling applications for filling up 20 vacancies in the post of EO/ADE. The respondents, however, omitted to make 3% mandatory reservation for persons with disabilities as per the roster provided by the DOP&T under the Persons with Disabilities Act, 1995. As against this advertisement, the applicant approached this Tribunal vide OA No. 2310/2010 along with OA No. 2314/2010, which both were decided by a common order dated 24.12.2010. In OA No. 2310/2010, the applicant had sought directions under writ of mandamus from the Tribunal to the respondents to issue a corrigendum inter alia providing for 3% reservation for persons with disabilities; and to further direct the respondents to provide relaxation for recruitment to the post of ED/ADE to the candidates including the applicant. The second OA that being OA No. 2314/2010 was in respect of the post of Principal, which is not germane to the issue under consideration any longer. This Tribunal identified the following three issues for consideration:-
Whether the vacancies for the persons with disabilities should be calculated w.e.f. 7.2.1996 (the date from which the Act of 1995 came into force) or from the year in which the posts in question were identified and notified to be filled with persons with disabilities (i.e. 31.05.2001 when both the posts were identified and notified).
Consequent to the determination of the Issue (i) above, the next question would be whether the roster maintained for the post of AD/ADE and Principal, copy of which have been appended to the counter filed by the respondents in the respective OAs, are legally sustainable or not and the date from which the roster need to be maintained to reflect the appropriate vacancies to be reserved for the persons with disabilities?
Whether the relaxation in standards for recruitment would be applicable for the persons with disabilities including the applicant?
4. Undeniably, the issue no.1 in this regard was the principal issue to which the second issue was directly and third one was obliquely related. This Tribunal relied upon the legal precedent set in the decision of the Honble Supreme Court in the matter of Government of India versus Ravi Prakash Gupta [2010 (7) SCC 626] to hold that once a post is identified under Section 32 of the Persons with Disabilities Act, 1995, the vacancies for such post needs to be calculated with effect from 07.02.1996, the date from which the Act of 1995 came into force. Accordingly, the respondent no.3 was directed to prepare fresh roster and to issue appropriate corrigendum to that effect. In respect of the third issue, this Tribunal had relied upon the provision 22 of the OM dated 29.12.2005 to hold that where sufficient number of persons with disabilities are not available and/or number of vacancies reserved for persons with disabilities cannot be filled up on the basis of general standard, the candidates included within this category of reservation i.e. disability category, are entitled to relaxation in standards to make up the deficiency subject to the fitness to these candidates for appointment to the post(s) in question. The Tribunal accordingly directed working out of the vacancies w.e.f. 07.02.1996; preparation of roster for persons with disabilities with effect from the same date i.e. 07.02.1996, taking into account the carried forward vacancies; submission of revised requisition as per the UPSC guidelines indicating the number of vacancies reserved for persons with disabilities in respect of the impugned advertisement in January-February, 2010; and relaxation in standards as per OM dated 29.12.2005 to the entitled categories.
5. Now the applicant has approached this Tribunal with the grievance that under the provision of Section 33 of the Persons with Disabilities Act, 1995 and the guiding instructions of the DOP&T issued on 29.12.2005, reservation of 3% to be calculated for the persons suffering with disabilities and the total number of vacancies arising since 02.07.1996. This is to be implemented on the basis of the 100 point roster earmarking point no.1, 34 and 67 for persons with disabilities. Admittedly, 42 vacancies arose in the ED/ADE since 1996 including 20 vacancies advertised in the impugned advertisement dated 23.01.2010 of 2 vacancies were to be reserved for the persons with disabilities on the points at 1 and 34 in the reservation roster.
6. The respondent no.1, on the other hand, has taken the cadre strength of 30 as the universe in place of 100 point roster and has calculated 3% of this cadre strength. Accordingly, the persons with disabilities are only entitled to one vacancy. The applicant has strongly assailed the argument of the respondents that since an OH person one Udhava Singh Kurmi has been appointed against the vacancy reserved for persons with disabilities, no other vacancy exists for the applicant. The applicant argues that unlike the reservation for SC/ST, persons with disabilities have been made entitled to horizontal reservation. Where a person gets appointed against a general category, this appointment shall not be reckoned against a reserved roster point as the same would act as additionally. The said Udhava Singh Kurmi has admittedly been appointed against an un-reserved post in the OH category, hence, the entitlement of the applicant to be appointed against visually handicapped (VH) category continues intact. The third ground adopted by the applicant is that he has relied upon the Circular dated 02.08.2000 from the Chief Commissioner for Persons with Disabilities directing that visually disabled candidates be exempted from answering mathematical and visual questions in written examinations. The applicant submits that question nos.1-20, 23, 44 and 45 fall within the exempted categories, therefore, he seeks appointment an expert to examine the said questions and report on their suitability for visually impaired candidates. The applicant has submitted the following table in this regard:-
Question Nos. Nature of question 1-12, 14-15 Mathematical questions requiring sight to understand question and work out the answer by writing in rough space provided.
13, 16-20, 23, 44-45 Visual questions requiring sight to understand the questions including the number/alphabet sequence, graphs and charts and writing in rough space provided to work out the answer.
7. The respondents no.1 & 2, on the other hand, have filed their counter affidavit in which they have rebutted the points raised in the Original Application. The learned counsel appearing for respondent nos.1 & 2 has vehemently argued for dismissal of the Original Application and also submitted a written note of arguments. The respondent nos. 1 & 2 submit that in case of reservation, no running account is to be maintained, which is made on the basis of total number of vacancies in a particular cadre. Were it to be otherwise, every time there arises a vacancy viz. promotion, retirement etc. to which reservation is applied, it would exceed reservation in respect of that category. The respondents have relied upon DOP&T OM dated 02.07.1997 which provides that the roster is to be operated on the principle of replacement and not as a running account as hitherto. In other words, the points at which reservation for different categories applies are fixed as per the roster and vacancies caused by retirement, etc., of persons occupying those points shall be filled by appointment of persons of the respective categories. Thus, there is only one post reserved on the basis of the cadre strength of 30 for the ED/ADE. The respondents have further denied that the said Udhava Singh Kurmi was selected on his own merit; rather he was selected against the reserved post meant for PH category. The respondents further submit that in case of a PH person, who has to be appointed, may belong to any of the categories including the general candidate. The said Udhava Singh Kurmi was a PH person from the OBC category. It is not correct to say that he was selected on his own merit. Thus, there is only one vacancy which arises in the cadre of ED/ADE, which has been filled up by the said Udhava Singh Kurmi. It is also wrong to say that in the present advertisement there should have been a quota for PH persons as the advertisement in question clearly mentions that the PH persons should also apply for the post. The respondents have further questioned the Misc. Application filed on behalf of the applicant challenging the question not suitable for PH persons as the same could only be challenged by means of a separate Original Application.
8. The respondent no.3 has also filed two separate reply affidavits to the OA and MA. In the first counter affidavit to the OA, they have submitted that since they are only the recruiting agency, they are strictly guided by the requisitions submitted by the requisitioning authority. The post of EO/ADE was advertised on 23.01.2010 in respect of 20 posts as per the details of reservation provided. In the second counter affidavit filed by the UPSC to the MA, it is clearly mentioned that:
7,8,9&10. It is submitted that though the post of Education Officer/Assistant Director of Education are also suitable for visually challenged candidates, no post is reserved for them. Since no post is reserved for visually challenged candidates, the question paper was common to all candidates. However, visually challenged candidates were provided with scribe and allowed twenty minutes extra time (i.e. 2 hr. 20 minutes instead of 2 hrs. meant for other candidates).
9. In the rejoinder to the reply filed on behalf of the respondent nos. 1 & 2, the applicant has strongly contended that the appointment of said Udhava Singh Kurmi was not made against any reserved categories. He has further submitted that in their reply the respondent nos. 1 & 2 have partially accepted the arguments of the applicant and have submitted a latest revised roster that of 42 vacancies. However, the respondents have not earmarked the points 1 and 34 for persons with disabilities. The applicant further submits that since as per the Notification of the Ministry of Social Justice and Empowerment dated 18.01.2007, the post of EO/ADE has been identified suitable for the orthopedic disabled and visually disabled only, one vacancy each of the two categories i.e. EO/ADE ought to have been reserved for persons with disabilities, which was not so done. The rejoinder application of the applicant further strongly asserts that no post was reserved for the OH category in the impugned advertisement and thereby the said Udhva Singh Kurmi has been appointed against un-reserved category.
10. We have carefully perused the pleadings of the parties, documents submitted by them, and have patiently listened to the oral submissions made by the learned counsel appearing on behalf of the respective parties. We feel that a part of the problem has already been taken care by this Tribunal in its order dated 24.12.2010 and our task has been significantly facilitated. Now, the questions which remain to be answered are the following:-
Whether the reservation will be applicable to the roster of 100 or it will be confined to the cadre strength of 30 to be operated on replacement basis?
Whether the appointment of Udhav Singh Kurmi has been made against a reserved post or against an un-reserved post?
In case the answer to one of the above issues is in affirmative for the applicant, whether the applicant is entitled to any relaxation?
What relief, if any, can be granted to the applicant?
11. In so far as the first issue is concerned, provision for reservation has been made under Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Rule 32 of the Act ibid provides as under:-
32. Identification of posts, which can be reserved for persons with disabilities - Appropriate Governments shall (a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the developments in technology. Section 33 of the Act ibid deals with reservation of posts which provides as under:
33. Reservation of Posts -Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent, each shall be reserved for persons suffering from (i) Blindness or low vision; (ii) Hearing impairment; (iii) Locomotors disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, may, as may be specified in such notification, exempt any establishment from the provisions of this section.
12. The above two provisions of law are inter-related and deal with different stages of the same process of reservation for the persons suffering with disabilities. In the first instance, there has to be identification of such posts where the persons with disabilities have to be appointed. This is subject to periodical review and updating of these posts but in an interval of three years of less. Section 33, on the other hand, follows the process of identification by which the 3% of vacancies shall be reserved for persons with disabilities. One per cent of the vacancies shall be reserved one of the three categories of persons with disabilities as provided in the Act. However, OM dated 29.12.2005 provides that 3% of the vacancies in the case of direct recruitment to Groups ABC are to be reserved for persons with disabilities with 1% each for the three separate categories. Likewise 3% of the posts for promotion in Group D & C posts where the direct recruitment does not exceed 75% are to be reserved for each of the above three categories. There is also a provision for examination for these categories. The Ministry of Social Justice and Empowerment is the nodal Ministry of this purpose and is responsible for identification. No Ministry or Department is entitled to exclude any post identified at its own discretion. Where there is a shift in the categories of posts from one group to another group, the jobs/posts shall continue to be remained identified. Where there are one or two vacancies identified, yet the quantum of reservation will be 3%. Provision 6 of the OM under reference further provides as under:-
6. APPOINTMENT AGAINST UNRESERVED VACANCIES: In the posts which are identified suitable for persons with disabilities, a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy. Thus a person with disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with disability of the relevant category.
It would appear from this that the right of a person with disability to compete against un-reserved vacancy, provided he is identified suitable for his category, cannot be denied. Provision 7 further provides as under:-
7. ADJUSTMENT OF CANDIDATES SELECTED ON THEIR OWN MERIT: Persons with disabilities selected on their own merit without relaxed standards alongwith other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with disabilities which will thus comprise physically handicapped candidates who are lower in merit than the last candidate in merit list but otherwise found suitable for appointment, if necessary, by relaxed standards. It wjll apply in case of direct recruitment as well as promotion, wherever reservation for persons with disabilities is admissible. Provision 13, which relates to computation of reservation, provides as under:-
13. COMPUTATION OF RESERVATION: Reservation for persons with disabilities in case of Group C and Group D posts shall be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group 'C' posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group 'C' posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group 'D' posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group 'C' and Group 'D' posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified post may exceed 3 per cent. It is significant to note that the OM itself provides that since reservation is confined to identified posts only and number of vacancies reserved are computed on the basis of total vacancies, it is possible that number of persons appointed by reservation in an identified post may exceed 3%.
Provision 15 further provides as under:-
15. EFFECTING RESERVATION -MAINTENANCE OF ROSTERS:
All establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining / effecting reservation for the disabled -one each for Group' A ' posts filled by direct recruitment, Group 'B' posts filled by direct recruitment, Group 'C' posts filled by direct recruitment, Group 'C' posts filled by promotion, Group 'D' posts filled by direct recruitment and Group' D ' posts filled by promotion.
Each register shall have cycles of 100 points and each cycle of l00 points shall be divided into three blocks, comprising the following points:
1st Block -point No.1 to point No.33 2nd Block -point No.34 to point No.66 3rd Block -point No.67 to point No.100 Points I, 34 and 67 of the roster shall be earmarked reserved for persons with disabilities -one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points I, 34 and 67 will be reserved keeping in view all relevant facts.
All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point no.1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points I, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities.
There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also not suitable for any category , three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block.
After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.
If the number of vacancies in a year is such as to cover only one block or two, discretion as to which category' of the disabled should be accommodated first shall vest in the head of the establishment, who shall decide on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc. A separate roster shall be maintained for group C posts filled by promotion and procedure as explained above shall be followed for giving reservation to persons with disabilities. Likewise two separate rosters shall be maintained for Group D posts, one for the posts filled by direct recruitment and another for posts filled by promotion.
Reservation in group A and group B posts is determined on the basis of vacancies in the identified posts only. Separate rosters for Group A posts and Group B posts in the establishment shall be maintained. In the rosters maintained for Group A and Group B posts, all vacancies of direct recruitment arising in identified posts shall be entered and reservation shall be effected the same way as explained above. Provision 16 provides that vacancies may be either inter-changed between the categories and are to be carried forward. Where a vacancy cannot be filled up due to non-availability of candidate, the same can only be filled up by inter-change. Where a vacancy is filled up by a person other than the reserved category, the reservation shall be carried forward for a period of further two years.
13. The provision for reservation is to be horizontally computed as provided under provision 19, which reads as under:-
19. HORIZONTALITY OF RESERVATION FOR PERSONS WITH DISABILITIES: Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with disabilities and ex-servicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation (in what is called inter-locking reservation) and persons selected against the quota for persons with disabilities have to be placed. in the appropriate category viz. SC/ ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with disabilities and out of two persons with disabilities appointed, one belongs to a Scheduled Caste and the other to general category then the disabled SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the disabled candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs. In other words, it clearly emerges that under the system of horizontal promotion, if in a given year there are two vacancies reserved for the persons with disabilities and out of two persons with disabilities appointed, one belongs to a SC and the other to general category then the disabled Sc candidate shall be adjusted against the SC point in the reservation roster and the general candidate against un-reserved point in the relevant reservation roster.
14. Provision 25 further provides that all the reserved vacancies identified are to be clearly notified in the advertisement. The OM also provides for issue of certificate by the requisitioning authority and the annual report regarding representation of persons with disabilities will also be sent soon after the first of January of every year. The OM dated 26.04.2006 further provides that the reservation is to be calculated from the year 1996. The Gazette Notification of the Ministry dated 18.01.2007 provides the jobs identified in which that of figures at serial no.355 with OA, OL, BL, B, & LV categories being suitable.
15. The contentious issue that we are required to resolve is that whether roster point will extend from 1 to 100 or it will be confined to 30 which is the cadre strength of the ED/ADE. On the other hand, the argument of the respondents is that the cadre strength being only 30, it will be applied over the only the strength of the cadre and not over 1 to 100 which means that the roster gets repeated almost three times. In this, as stated, the respondents have relied upon the provision 10 of the OM dated 02.07.1997, relevant paragraph whereof reads as under:-
10. The roster is to be operated on the principle of replacement and not as a running account as hitherto. In other words, the points at which reservation for different categories applies are fixed as per the roster and vacancies caused by retirement, etc., of persons occupying those points shall be filled by appointment of persons of the respective categories.
16. The applicant in the arguments contended that this OM dated 02.07.1997 does not apply to the facts of this case for the reason that the OM dated 29.12.2005 supersedes the earlier OM dated 02.07.1997, as seen earlier this OM clearly makes it mandatory to maintain a separate 100 points reservation roster. It further provides that points 1, 34 and 67 are earmarked for persons with disabilities. The basic argument of the applicant here is that in 2001, 12 vacancies had arisen and further 16 vacancies arose in 2005 out of which 10 vacancies were subsequently filled. As admittedly, a further requisition for 20 vacancies was filed including 16 un-filled vacancies, which makes the total to be 42. Therefore, the roster should run over 42. The applicant has further argued that since the pot of ED/ADE has been identified for OA and VH only, one post in each of the two categories ought to be reserved for persons with disabilities.
17. Here, two conflicting positions appear to have emerged and they have to be reconciled using the principle of harmonious construction. OM dated 29.12.2005 is later from the point of time while the OM dated 02.07.1997 is the earlier one. Therefore, the presumption of facts would be that the latter circular has been issued taking the earlier one into account. The objective of the circular as stated clearly provides as under:-
With a view to consolidating the existing instructions, bringing them in line with the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and clarifying certain issues including procedural matters, the following instructions are issued with regard to reservation for persons with disabilities (physically handicapped persons) in posts and services under the Government of India. These instructions shall supercede all previous instructions issued on the subject so far. It is more than apparent from above that these instructions supersede the previous provisions that would presumably include the OM dated 02.07.1997. The arguments of the respondents that the OM dated 29.12.2005 lays down a general principle and, therefore, is not subject to supersession does not cut much ice with us. The principle of reservations applies horizontally unlike the vertical reservation in the case of SC/ST, this is a separate scheme and there is no ground for us to assume that what is contended to be a general principle will apply ipso facto to the case of persons suffering with disabilities despite the express provision that al earlier instructions on the subject have been superseded. Therefore, here we tend to disagree with the arguments of the respondents that the Circular of 2005 is limited by the Circular of 02.07.1997.
18. There is another way in which we could approach the subject. If the arguments of the respondents that in the case of running reservation were to be adopted, it would amount to reservation of more than 3% in the instant case. Here the point to be noted is that the reservation points which have been made are at 1, 34 and 67 and not at 1, 33 and 66. This fixation of roster points automatically takes care of the entire 100 points. This has been made very explicit by provision 15 (b) where it has been specifically provided that each cycle shall be of 100 points and it shall be divided into three blocks comprising the following:
1st Block -point No.1 to point No.33 2nd Block -point No.34 to point No.66 3rd Block -point No.67 to point No.100 In this regard, provision 13, which has already been cited above, has clearly stated that since the reservation is limited to identified posts while the number of vacancies are to be computed on the basis of total posts, we find that the appointment of persons by reservation against the identified posts exceeds 3% in Group C and D categories, this method is also applicable to Group A category as well.
19. However, it has also to be taken into account that in the case of M. Nagaraj and Others versus Union of India and Others [2006(8) SCC 212], the question of reservation in its major aspects has been dealt with by their Lordships of the Honble Supreme Court. In the cases of _- State of Punjab versus Hira Lal [1970 (3) SCC 567]; AkhilBharatiya Soshit Karamchari Sangh (Railway) Represented by its Assistant General Secretary on behalf of the Association Etc. versus Union of India and Others [1981(1) SCC 246] in which it had been held that the reservation on appointment or pots under Article 16 (4) included promotion. This was overruled by the decision of the Honble Supreme Court in the case of Indira Sawhney versus Union of India & Others [1996 (6) SCC 506] in which it had been held that reservations cannot be applied in promotion. In the matter of Union of India versus Versus Varpal Singh [AIR 1996 (SC) 448], Ajit Singh Januja & Ors Vs State of Punjab [AIR 1996 (SC) 1189], Ajit Singh Januja & Ors Vs State of Punjab & Ors [AIR 1999 (SC) 3471], M.G. Badappanavar Vs State of Karnataka [2001 (2) SCC 666] further stipulated this view. Article 16 (4) (b) provides -
16 (4-B) 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. This itself is apparent that Article 16(4-A) and 16(4-B) flow from Article 16(4) but do not alter the structure of Article 16 (4) as held by the Honble Supreme Court in the case of M. Nagaraj and Others versus Union of India and Others (supra). The instant judgment further goes ahead to hold that Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether backwardness and inadequacy of representation are the controlling/compelling reasons for the state to provide reservations keeping in mind the overall efficiencies of state administration. The Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Roster has to be post specific with inbuilt concept of replacement and not vacancy based. If any authority thinks that for ensuring adequate representation of backward class or category, it is necessary to provide for direct recruitment therein, it shall be open to do so. Backlog vacancies to be treated as a distinct group and are excluded from the ceiling limit of 50%. If a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class and reserved category candidates are entitled to compete for the general category post. The reserved candidates are entitled to compete with the general candidates for promotion to the general post in their own right. On their selection, they are to be adjusted in the general post as per the roster and the reserved candidates should be adjusted in the points earmarked in the roster to the reserved candidates. Each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category alone (replacement theory). The Honble Apex Court in R K Sabharwal Versus State of Punjab [(1995) 2 SCC 745] further provides that the operation of roster for filling the cadre-strength by itself ensures that the reservation remains within the 50% limit. This judgment is apt to be quoted where this deals with the functions and relative merits of running account and replacement based roster system. The relevant paragraph of the judgment is reproduced hereunder:-
5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservation provided under the impugned Government instructions are to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Scheduled Tribes and Backward classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts..." are reserved for members of the Scheduled Caste and Back ward classes. In a lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account " is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Back ward Classes in the State services and is consistent with the demographic estimate base 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 appointeess/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.
20. In view of the afore mentioned consideration and as per the above judicial pronouncement particularly in the case of M. Nagaraj and Others versus Union of India and Others (supra) it is quite clear that the roster point cannot be vacancy based and have to be replacement based. While discussing the impact of Constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001, the Honble Apex Court has concluded as under:-
122. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. In view of the above discussion and judicial pronouncement, we are of the considered view that this issue does not sustain in favour of the applicant and the same is according decided against him.
21. In so far as the second Issue is concerned, we have to re-visit the issue of horizontal reservation for persons with disabilities. This subject has already been discussed earlier in this very order. In brief, provision 19 of the OM dated 29.12.2005 provides that reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with disabilities and ex-servicemen is called horizontal reservation. The illustration which has been given is quite adequate. Where there are two vacancies two vacancies reserved for the persons with disabilities and out of two persons with disabilities appointed, one belongs to a Scheduled Caste and the other to general category then the disabled SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate against unreserved point in the relevant reservation roster. This case study further provides that none of the vacancies which falls on point reserved for the SCs, the disabled candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs.
22. It has been affirmed on affidavit by the respondent no.3 that the said Udhav Singh Kurmi has not computed within the general category but has been appointed against the reserved vacancy of OBC category on the basis of a lower placement. Hence, this vacancy is consumed by the reserved category and cannot be agitated claiming another vacancy in lieu thereof. Accordingly, this issue is also decided against the applicant.
23. In so far as issue No.3 is concerned, in view of the above two issues having been decided against the applicant, this issue becomes hypothetical. However, theoretically we would agree with the arguments of the applicant that where the questions are visual or figure related, relaxation has to be provided. Since the first two issues have been answered negatively for the applicant, it would not be possible to determine as to how much relaxation were to be given had he succeeded in the final outcome. Hence, we do not proceed further in deciding this issue.
24. In view of the afore discussions, first two issues having been decided against the applicant, we find that there is no scope for granting any kind of relief to the applicant. The instant OA is, therefore, dismissed being bereft of any merit. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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