Promoting reserved category candidates against un-reserved posts on 'own merit' basis is bad in law.

The present Original Application (OA No. 606/2003) was initially filed by 08 applicants challenging an empanelment order dated October 7, 2003 (Annexure A/2) and a promotion order dated October 8, 2003 (Annexure A/3).

The Tribunal, vide an order dated March 23, 2007, quashed these orders and directed the official respondents to prepare fresh empanelment based on initial recruitment seniority and issue fresh promotion orders with consequential benefits.

The Union of India challenged this order before the Hon'ble High Court of Rajasthan, Jaipur Bench, which, in its order dated February 5, 2025, set aside the Tribunal's 2007 order and remitted the OA back to the Tribunal for a fresh decision in accordance with law.

During the pendency of this litigation, 07 out of 08 original applicants retired, leaving only applicant No. 6, Smt. Vandana Murray, in service as of the date of the order.

The issue originated from a notification dated January 25, 2002 (Annexure A/1) for promotion to the post of Office Superintendent Grade-II (pay scale Rs. 5500-9000) against 17 posts (14 General, 1 SC, 2 ST).

The applicants contended that the selection process was vitiated because the official respondents revised the seniority list mid-process, despite an initial eligibility list based on seniority being appended to the notification.

Specifically, they argued that private respondents from the reserved category were promoted against unreserved category posts on the basis of "accelerated seniority" and "own merit," thereby depriving general category candidates like the applicants, especially applicant No. 6, of promotion.

The private respondents acknowledged the empanelment of reserved category candidates against un-reserved posts on an "own merit" basis and argued that the seniority list was re-worked following the Constitution (Eighty-Fifth) Amendment Act-2001 and Railway Board directions on March 8, 2002, entitling SC/ST Railway Servants to consequential seniority.

They also contended that the applicants, having participated in the selection process without objection to the reworked seniority list, were estopped from challenging the outcome.

1. Whether the official respondents were justified in revising the seniority list mid-process after the notification for promotion had been issued and the selection process commenced based on an appended eligibility list.

2. Whether the promotion of reserved category candidates against un-reserved posts on an "own merit" basis, thereby reducing the number of posts available for the un-reserved category, was legally permissible.

3. Whether the applicants, having participated in the selection process based on the reworked seniority list, were estopped from challenging the selection process.

4. What relief, if any, could be granted to the sole remaining serving applicant (Applicant No. 6), given that most applicants had retired during the pendency of the litigation.

The court primarily applied the legal principle that terms of a notification for recruitment or selection cannot be changed mid-process.

It further relied on the Supreme Court's pronouncement in R.K. Sabharwal & Ors. vs. State of Punjab & Ors. (1995 SCC (L&S) 548), which held that posts at reserved points are for reserved categories, while reserved category candidates can compete for non-reserved posts, but their number on such posts cannot be used to calculate the percentage of reservation.

The Tribunal also referred to its own prior judgment in Jitendra Singh & Anr. vs. UOI & Ors. (OA No. 421/2014), which had quashed RBE No. 126/2010 on the ground that promoting reserved category employees against unreserved posts by applying the principle of "own merit" was bad in law, especially when such a seniority list shrinks unreserved posts.

The judgment also considered the Supreme Court's decision in Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors. (2024 SCC OnLine SC 3512) concerning relief for retired employees.

The Tribunal found that the respondents had violated the settled proposition of law that terms of a selection process cannot be altered mid-course, specifically by revising the seniority list after the initial notification and eligibility list had led applicants to participate.

While acknowledging the respondents' contention that applicants participated without objection, the Tribunal distinguished this by stating that the challenge was not to the notified process itself, but to its violation by the official respondents through the mid-process revision.

The Tribunal further analyzed the promotion of reserved category candidates against un-reserved posts on an "own merit" basis, noting that the private respondents misread the R.K. Sabharwal judgment, which pertains to appointments and not accelerated promotions over and above reservation quotas.

By relying on its earlier decision in Jitendra Singh & Anr. vs. UOI & Ors., which quashed a Railway Board letter allowing such promotions (RBE No. 126/2010), the Tribunal concluded that promoting reserved category employees against unreserved posts, thereby shrinking unreserved posts, was against the law.

The Tribunal noted the Solicitor General’s assurance in a pending SLP (Jarnail Singh and Ors. Vs. Lachhmi Narain Gupta and Ors.) that reserved category candidates would only be promoted against reserved posts, reinforcing that promoting them against un-reserved vacancies was wrong.

Given that 7 out of 8 applicants had retired, the Tribunal precluded their promotion based on the Government of West Bengal & Ors. vs. Dr. Amal Satpathi & Ors. judgment.

However, for applicant No. 6, who was still serving, the Tribunal concluded that if she had qualified the selection and would have been promoted among the 14 un-reserved posts but for the wrongful promotion of 6 reserved category candidates on "own merit," she was entitled to promotion.

The argument that applicants were estopped from challenging the selection process due to participation was rejected, as their challenge was against the violation of the notified process, not the process itself.

While relief could not be granted to the retired applicants, the Tribunal directed the official respondents to promote applicant No. 6 (Smt. Vandana Murray) to the post of Office Superintendent Grade-II (pay scale Rs. 5500-9000) with effect from October 7, 2003 (the date the final panel was notified), including all consequential benefits, within four weeks from the receipt of the order, provided she otherwise qualified and would have been placed next in seriatim in the list of successful candidates had the 06 reserved category candidates not been promoted against un-reserved posts.

The Tribunal further directed the official respondents to create supernumerary posts if necessary to comply with these directions regarding applicant No. 6, without interfering with the promotions of the private respondents who were promoted in 2003.

The Original Application was disposed of with these observations and directions, and all pending Miscellaneous Applications were also disposed of.