Full Judgment Text
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PETITIONER:
P.SHESHADRI
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT09/03/1995
BENCH:
FAIZAN UDDIN (J)
BENCH:
FAIZAN UDDIN (J)
AGRAWAL, S.C. (J)
CITATION:
1995 SCC (3) 552 JT 1995 (2) 661
1995 SCALE (2)195
ACT:
HEADNOTE:
JUDGMENT:
1 Delay condoned.
2. Leave granted. Counsel for the parties are heard.
3. In this appeal under Article 36 of the Constitution of
India the appellant has challenged the judgment dated
31.7.1992 passed by the Central Administrative Tribunal,
Hyderabad Bench at Hyderabad (hereinafter referred to as the
Tribunal) dismissing the application of the appellant filed
under Section 19 of the Administrative Tribunals Act, 1985
against the respondents herein seeking the relief of dec-
laration that the action of respondents No. 1 and 2 in not
promoting the applicant to the post of Dy.
Director/Executive Engineer alongwith other candidates by an
order dated 28.2.1990 as arbitrary or illegal. In the said
application the appellant also sought a direction to the
respondents to declare him as having been promoted to the
post of Dy. Director/Executive Engineer with effect from
28.2.1990 with all consequential benefits.
4. The short question that arises for determination by
this Court in this appeal is whether the Tribunal has
correctly interpreted the Office Memorandum No. 27/ 2/71-E
4(SET) dated 27.11.1972 in holding that the,appellant was
not entitled to be promoted as Dy. Director/Executive En-
gineer because of his placement in the approved promotion
panel.
5. Admittedly at the relevant time the appellant was
holding the post of Assistant Director/Assistant Executive
Engineer, in Central Water Engineering (Group-A) and that he
was fully eligible for being considered for promotion to the
next higher grade of Dy. Director/Executive Engineer. The
appellant’s case before the Tribunal was that though his
name was considered and he being the only candidate
belonging to the Scheduled Tribe community his name was
included in the panel of selected candidates and placed at
serial No. 26 of the combined select list but by order dated
28.2.1990 only 22 persons were promoted and the appellant
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was not promoted because there were only 22 posts available
and therefore persons at Serial No. 1 to 22 in the approved
panel were promoted while according to the appellant when 22
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persons were promoted there should in any case be at least
one point belonging to the Scheduled Tribe candidate in
accordance with the prescribed roster. The appellant
therefore, approached the tribunal for the necessary
direction.
6. The respondents contested the appellant’s application
by stating that 78 vacancies were anticipated up ’to
31.12.1990 out of which 12 were reserved for Scheduled
Castes and 6 for the Scheduled Tribes against which only the
appellant, as the sole officer belonging to the Scheduled
Caste community was found eligible, by the Departmental
Promotion Committee in its sitting held on 3.8.1990 and
27.8.1990. The respondents’ further stand was that having
regard to the directions contained in Office Memorandum No.
27/2/71 -E(SEI) dated 27.11.1972 issued by the Department of
Personnel, they prepared separate select lists of candidates
belonging to the Scheduled Castes and Scheduled Tribes in
addition to the general list and all the3separate select’
lists were merged into one combined list in which the name
of all the selected officers including those belonging to
Scheduled Castes and Scheduled Tribes ’were arranged in the
order of their inters seniority in the feeder cadre viz.
Assistant Director/Assistant Executive Engineer in which the
name of the appellant figured at S1. No. 26. It was stated
by the respondents that the number of the vacancies as were
anticipated did not come through and they could promote only
22 officers and, therefore, the first 22 in the panel of the
combined list were promoted. ’The appellant could not be
promoted as his chance for promotion would come only accord-
ing to his placement in the approved panel.
7. The tribunal, after considering the rival contentions,
came to the conclusion that having regard to the promotion
policy the promotions have to be made in accordance with the
instructions contained in the Office Memorandum dated
27.11.1972. It took the view that the combined select list
prepared in accordance with the instructions forms the basis
for promotion in which the names of all the selected
officers, general as well as those belonging to Scheduled
Castes and Scheduled Tribes are arranged in the order of
their interse seniority. The tribunal also took the view
that the rosters which have been prescribed for reservation,
are for determining the number of vacancies to be reserved
for Scheduled Castes and Scheduled Tribes and that the 40
point roster is not for determining the order of actual
appointment or for the purpose of determining seniority.
After analysing the instructions contained in Office
Memorandum dated 27.11.1972 the Tribunal took the view that
the respondents committed no illegality in making promotions
of 22 persons by order dated 28.2.1990 and on that basis,
rejected the application made by the appellant against which
this appeal has been preferred.
8. Learned counsel for the appellant vehemently urged
before us, that the impugned judgment of the tribunal is
against the promotion policy enunciated by the Central
Government for the benefit of the members of the Scheduled
Castes and Scheduled Tribes as well as against the very
object and spirit of the Office Memorandum dated 27.11.1990
and other related Government instructions in this behalf It
was submitted that though 78 vacancies were anticipated up
to 31.12.1990 yet accepting that only 22 posts were
available for promotion then also having regard to the
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promotion policy and the percentage
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of reservation allocated to the members of the Scheduled
Tribes, the appellant could not have been ignored and in any
event one post out of the 22 posts must have been made
available on 28.2.1990 when 22 promotions were made. It
was, therefore, submitted that the impugned order of the
tribunal could not be sustained either in law or on facts.
9. It may be pointed out that Office Memorandum No.
27.2.71 -E(SET) dated 27.11.1972 issued by the Department of
Personnel, Government of India, relates to the introduction
of promotion scheme to the members belonging to Scheduled
Caste and Scheduled Tribe community. A reading of the said
memoranda goes to show that prior to 17.11.1972 there was no
reservation for Scheduled Castes and Scheduled Tribes in
appointments made by promotion on the basis of seniority
subject to fitness and it was only by O.M. dated 27.11.1972
that the Government of India communicated its policy
providing 15 per cent reservation for Scheduled Castes and 7
1/2 per cent reservation for Scheduled Tribes in promotion
to all classes of posts/ service made on the basis of
seniority subject to fitness. This policy was adopted by
the Government of India in supersession of its earlier
orders contained in Office Memoranda No. 1/1 2/67- ESTT (C)
dated 11.7.1968 according to which there was no reservation
for Scheduled Castes and Scheduled Tribes in the
appointments made by promotion. The Government, therefore
directed appointing authorities to maintain a separate 40
point roster to determine the number of reserved vacancies
in a year with a view to implement the. aforementioned
reservation policy. In pursuance of the said policy,
detailed instructions were issued to the authorities
concerned to make promotions in accordance with the
directions contained therein with a view that the members
belonging to the Scheduled Castes and Scheduled Tribes may
have the benefit of getting promotion to higher grade/cadre
earlier than the employees who did not belong to the
Scheduled Castes and Scheduled Tribes. Clause (i) of
paragraph 3 of O.M. dated 27.11.1972 provides for
preparation of a separate 40 point roster to determine the
number of reserved vacancies in a year which also prescribes
the points for reservation for Scheduled Castes and Sched-
uled Tribes. Clause (ii) provides that wherever according
to the points in the roster there are any vacancies reserved
for Scheduled Castes and Scheduled Tribes, separate list
should be drawn up of the eligible Scheduled Castes and
Scheduled Tribes officers as the case may be, arranged in
order of their interse seniority in the main list. Clause
(iii ) contemplates that the Scheduled Castes and Scheduled
Tribes officers should be adjudged by the Departmental
Promotion Committee separately in regard to the fitness and
clause (iv) of paragraph 3 of O.M. dated 27.11.1972 reads
as under:-
"when the Select Lists of officers in the
general category and those belonging to
Scheduled castes and Scheduled tribes
have been prepared by the Departmental
Promotion Committee these should be merged
into a combined select list in which the names
of all the selected officers general as well
as those belong to Scheduled Castes and
Scheduled Tribes are arranged in the order of
their inter-se seniority in the original
seniority list of the category or grade from
which the promotion is being made. This
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combined select list should thereafter be
followed for making promotions in vacancies as
and when they, arise during the year.
10.Government of India, Department of
Personnel & Training, Ministry of Personnel,
Public Grievances and Pensions again issued
O.M. No. F.22011/5/86-ESTT/ D dated 10.3.1989
providing the procedure to be observed by
Departmental Promotion Committee. Paragraph
2.3.2 (ii) of the said O.M. dated 10.3.1989
lays down the method of promotion by selection
and reads as under
"In promotion by selection to posts/services
from Group ’C’ to Group ’B’ within Group ’B’
and from Group ’B’ to the lowest run in Group
’A’, selection against vacancies reserved for
SCs and STs will be made only from those
SCs/STs officers, who are within the normal
zone of consideration prescribed vide the
Department of Personnel & A.R. O.M. No.
22011/3/76-Estt.(D) dated 24th December, 1980.
Where adequate number of SCs/STs candidates
are not available within the normal field of
choice, it may be extended to five tunes the
number of vacancies and the SCs/STs candidates
(and not any other) coming within the extended
field of choice, should also be considered
against the vacancies reserved for them. If
candidates from SCs/STs-obetain on the basis
of merit with due regard to seniority, on the
same basis as others, km number of vacancies
than the number reserved for them, the
difference should be made up by selecting
candidates of these commumucs, who are in the
zone of consideration, irrespective of merit
and ’bench mark’ but who arc considered fit
for promotion. Officers belonging to SC/ST
selected for promotion against vacancies
reserved for them from within the extended
Geld of choice should however be placed at
bloc below all the other officers selected
from within the normal field of choice.
11.A combined reading of the instructions contained in these
memoranda will
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go to show that in the first instance the number of reserved
vacancies in a year have to be worked out on the basis of 40
point roster as envisaged in sub-clause (i) of paragraph 3
of O.M. dated 27.11.1972. Thereafter separate lists arc to
be drawn up of the eligible Scheduled Castes or Scheduled
Tribes officers arranged in the order of their inter se
seniority in the main list. Clause (iii) of paragraph 3
enjoins a duty on the Departmental Promotion Committee to
adjudge the Scheduled Castes and Scheduled Tribes officers
separately in regard to their fitness. Thereafter the
select lists of the officers in the general category and
those belonging to the Scheduled Castes and Scheduled Tribes
arc prepared by the Departmental Promotion Committee. The
same have to be merged into a combined select list in which
the names of all the selected officers, general as well as
those belonging to Scheduled Castes and Scheduled Tribes arc
arranged in the order of their inter se seniority in the
original seniority list of the category/grade from which the
promotion is being made and this combined select list is the
basis for making promotions in vacancies as and when they
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arise during the year. Further clause (ii) of paragraph
2.3.2 of O.M. dated 10.3.1989 contemplates that selection
against vacancies reserved for Schedule Castes and Schedule
Tribes will be made only from those Schedule Cast/ schedule
Tribes officers who arc within the normal zone of
consideration prescribed by the Department of Personnel and
A.R. vide O.M. No.22011 dated 24th December, 1980. It
further contemplates that where number of Scheduled
Caste/Schedule Tribe candidates arc not available within the
nominal field of choice, it may be extended to Five Times
the number of vacancies and Schedule Caste/Schedule Tribe
candidates (and not any other) coming; within the
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extended field of choice, should also be considered against
the vacancies reserved for them. If candidates from
Scheduled Castes and Scheduled Tribes obtained on the basis
of merit with due regard to seniority, on the same basis as
others, are less than the number of vacancies reserved for
them, the difference should be made up by selecting
candidates of these communities, who are in the zone of
consideration, irrespective of merit and bench mark but who
are considered for promotion and officers belonging to
Scheduled Castes and Scheduled Tribes selected for promotion
against vacancies reserved for them from within the extended
field of choice would however be placed en block below all
the other officers selected from within the normal field of
choice. In view of the aforesaid clear instructions with
regard to the reservation quota for the Scheduled Tribes as
7-1/2 per cent, it is beyond comprehension to say that not
even a single post will go to the member of the Scheduled
Tribe out of the 22 posts which were available for promotion
to the post of Dy. Director/Executive Engineer on the
relevant date i.e. on the date when 22 officers were
promoted to that grade. Any other interpretation of..,’,he
memoranda referred to above will not only frustrate the
scheme but it will render the reservation policy as nugatory
and no effect to the reservation quota can be given.
12. The tribunal seems to have been misled by the last
sentence contained in clause (iv) of paragraph 3 in O.M.
dated 27.11.1972 which reads as follows:-
"This combined select list should therefore be
followed for making promotions in vacancies as
and when they arise during the year."
The aforementioned sentence cannot be read form out of the
context in which it has been used. The preceding clauses of
the said memoranda clearly contemplate that there have to be
separate select lists of officers in the general category as
well as those belonging to the Scheduled Castes and
Scheduled Tribes having been prepared by the Departmental
Promotion Committee and then all the three have to be merged
to form a combined select list. It does not mean that in
the case of Scheduled Castes and Scheduled Tribes the pro-
motions have to be made only in accordance with the
placement of the members of the Scheduled Caste and
Scheduled Tribe in the combined select list. They have to
be picked up from the select list of officers belonging to
Scheduled Castes and Scheduled Tribes prepared by the
Departmental Promotion committee, according to the
availability of reserved vacancies and their turn in the
said lists. This intention is also spelt out from clause
(ii) of para 2.3.2 of O.M. dated 10th March, 1989 which
provides that promotion by selection against vacancies
reserved for Scheduled Caste and Scheduled Tribe will be
made only from those Scheduled Caste/ Scheduled Tribe
officers who are within the normal zone of consideration.
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13.Having regard to these facts and circumstances the
appellant having been selected by the Departmental Promotion
Committee and he being the only eligible officer belonging
to the Scheduled Tribe community should have been promoted
to the higher post/grade of Dy. Director/Executive Engineer
and the respondents committed a serious error and illegality
in not doing so. Consequently, the appeal succeeds and is
hereby allowed. The impugned order of the tribunal is set
aside
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and the application of the appellant filed before the
tribunal is allowed. According to the Counter Affidavit
filed in this Court by Shri A.K. Barua on behalf of the re-
spondents, the appellant was also promoted as Dy.
Director/Executive Engineer by order dated 7.9.1993 and the
appellant had joined as Deputy Director /Executive Engineer
on 22.9.1993. Since we find that the appellant was entitled
to be promoted on 28.2.1990, it is directed that he will be
deemed to have been promoted with effect from 28.1.1990 with
all consequential benefits. The respondents are directed to
pay a sum of Rs. 3000/- as costs of this appeal to the
appellant.
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