Document Fragment View
Fragment Information
Showing contexts for: 85th amendment in M.A. Varghese vs Union Of India Represented By on 9 October, 2012Matching Fragments
5. In the reply to the rejoinder, the respondents submitted that the applicant being junior to those alerted in the final stage, the integrated list of entire lot running to more than 500 employees is not required for the present selection as there are only 08 posts to be filled up. The present list as per Annexure R- 1 dated 10.07.2012 includes 3 URs besides SC/ST employees as also 15 new employees. They are not the same group of persons except (9), who are seniors as can be seen from Annexure R-4 selection notification dated 10.02.2011. In terms of the instructions contained in Annexure R-3 RBE No. 46/2010, the inter se seniority to meet the requirement for selection on hand has been prepared. The Annexures A-6 and A-7 issued for Engineering and Mechanical departments' Group-B selection were huge for the reason that there were a large number of vacancies. They were not prepared as per the instructions contained in Annexure A-10, which is no more available as it has been withdrawn. According to Article 141 of the Constitution of India, the status of the judgement of the Hon'ble Supreme Court is "declared law" of the land. The 85th amendment was upheld by the Hon'ble Supreme Court in Nagraj's case. It, being the declared law, is binding on all the lower Courts in the Country. Without challenging the implementation of the 85th amendment or challenging the judgement in Nagraj's case, the applicant has no right to challenge the seniority assignment as per the existing rules and provisions confirmed by the 85th amendment and approved by the Hon'ble Supreme Court in Nagaraj's case. As per RBE No. 33/2002 dated 08.03.2002, if any unreserved employee is promoted based on the instructions of 319(A) between 10.02.1995 and 17.06.1995, his promotion is personal, but seniority cannot be given. Whereas, the promotions given to the unreserved category of employees against the reserved points either before 10.02.1995 or after 17.06.1995 are protected. Therefore, the seniority issues were settled in Nagaraj's case. There is no provision to delete the employees who have failed in the earlier selections. Even if they are excluded, the applicant will not figure in the field of eligibility for the present selection as the last person alerted for the written examination entered into the Grade Pay of Rs. 4600/- on 01.05.1992. The prayer of the applicant is to prepare the seniority list based on the catch up rule explained in Virpal Singh Chauhan's case. The 85th amendment reverses the decisions of the Hon'ble Supreme Court in the cases of Virpal Singh Chauhan, Ajit Singh-I and Ajit Singh-II. There is no catch up rule in determining seniority followed in the India Railways after the 85th amendment as confirmed by Hon'ble Supreme Court in Nagraj's case.
9. The integrated seniority list at the Headquarter level is directly related to the seniority list maintained at the divisional level. If the seniority list in the different units at the different levels are not prepared correctly, the integrated seniority at the divisional level cannot be correct. Herein, the question of accelerated promotion to the SC/ST employees, who are promoted as per the roster point arises for consideration. The applicant contended that Annexure A-1 is not an integrated seniority list but only a list of persons from the seniority lists which were erroneously prepared against a catena of judgements of Hon'ble Supreme Court. The catch up rule explained in Virpal Singh Chauhan's judgement is relied on by the applicant. The respondents averred that the catch up rule is not followed in Indian Railways after 85th amendment of the Constitution of India, which was confirmed by the Hon'ble Supreme Court in Nagraj's case. The Apex Court held in M. Nagraj's case (supra) while upholding the constitutional validity by 77th and 85th amendments that in case, rules in respect of reservation in promotion with consequential seniority are to be framed, such rules should satisfy the tests of quantifiable data as to backwardness and inadequacy of representation in public employment and the overall administrative efficiency. Unless such an exercise is undertaken, the rules relating to reservation in promotion with consequential seniority cannot be implemented. Articles 16(4A) and 16(4B) are enabling provisions calling for satisfaction of the conditions precedent for implementation. This position has been confirmed by the Hon'ble Supreme Court in the judgement dated 27.04.2012 in Civil Appeal No. 2608/2011 (U.P. Power Corporation Ltd. vs. Rajesh Kumar & Ors.). The relevant part of the said judgement is extracted as under :
Subject : Principles for determining the seniority of staff belonging to SC/ST promoted earlier vis-a-vis, General/OBC staff promoted later.
Reference : (i)Board's letter No.E(NG)I-97/SR6/3 (Vol.III), dated 8.3.2002 (Bahri's 33/2002, p-50)
(ii) Board's letter No.E(NG)I-97/SR6/3 (Vol.IV), dated 13.1.2005, (Bahri's 7/2005, p-10).
[No.E(NG)I-97/SR6/3 Vol.IV dated 29.2.2008] The Railways are aware that in pursuance of the Constitution (85th Amendment) Act, 2001, instructions were issued vide this Ministry's letter dated 8.3.2002 quoted above that w.e.f 17.6.1995 SC/ST Railway servants shall, on their promotion by virtue of rule of reservation/roster, be entitled to consequential seniority also. These instructions were, however, reiterated vide this Ministry's letter of even number dated 21.11.2002 for implementation subject to final outcome of the Writ Petitions pending before the Hon'ble Supreme Court.
The Railways would also be aware that while disposing of the aforesaid Writ Petitions, the Hon'ble Supreme Court in their order dated 19.10.2006 in the case of M.Nagraj & Ors. Vs. UOI & Ors have, inter alia, upheld the validity of the Constitution (85th Amendment) Act, 2001. So far as other issues discussed in Apex Court's judgment, relevant clarifications have since been issued by DOP&T vide their O.M.No.36036/2/2007-Estt. (Res.) dated 29.3.2007 and circulated vide this Ministry's letter No.97-E (SCT)I/49/25, dated 29.5.2007. Thus, in the light of the Hon'ble Supreme Court's order dated 19.10.2006, the seniority of the SC/ST Railway servants promoted by virtue of rule of reservation/roster shall be regulated in terms of instructions contained in Board's letter dated 8.3.2002 and 13.1.2005 referred to above."