ORDER
Mukesh Kumar Gupta, Member (J)
1. The relief prayed for in this OA reads as follows:
(a) Declare the action of the respondents as illegal, unjust and arbitrary by which the respondents have promoted the applicant to the post of HS-II wef 01/09/2005, whereas the applicant was required to be promoted to the post of HS-II from the date of his passing the Trade test i.e. 01/03/1998 as the post of HS-II against ST Quota is lying vacant since 1994 and quash and set aside the order dated 28/02/2006.
Direct the respondents to consider and promote the applicant to the post of HS-II wef 01/03/1998 against the ST post and the applicant may be entitled for all consequential benefits including fixation of pay, arrears and seniority etc.
Any other relief which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.
Award costs.
2. The facts as stated are that applicant was initially appointed as Labour against ST quota in the year 1984, promoted as Mate Painter in the year 1989 and further promoted as Painter (S) on 01.08.1994. He appeared for trade test of HS Grade-II and was declared passed on 01.03.1998. His grievance had been that he was entitled to promotion to said post on passing trade test against ST quota vacancy lying vacant since 1994, but Respondents promoted him to said post w.e.f. 01.09.2005. One Shri Ram Naresh belonging to ST category, senior to him, was promoted from post of HS Grade-II to HS Grade-I from 01.08.1994 and no ST candidate was promoted the against said vacancy. The cadre strength of HS Grade-II is 5, and as per DOP&T OM dated 02.07.1997, in the case of small cadre upto 13 posts, all posts should be earmarked on the same pattern as is in the case of model post based roster (‘L’ Shape) according to which 9th point is reserved for ST candidate. Respondents illegally and arbitrarily not filled up said 9th point meant for ST candidate without any justification. He submitted numerous representations, but it did not elicit any favourable action. Vide orders dated 16.11.2004 and 25.04.2005 he was informed that at present there was no vacancy of Highly Skilled grade. As and when vacancy occurs, he will be promoted. It is contended that the stand of Respondents is not justified. Respondents promoted him w.e.f. 01.09.2005 against 18th point i.e. 9th point of second cycle in spite of the fact that there was a backlog of one ST vacancy since the year 1994. Representations made on this account was rejected vide communication dated 28.2.2006. Respondents action is illegal, arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India, contended Shri Yogesh Sharma, learned proxy counsel. Furthermore, 200 point Roster ceased to be in operation w.e.f. 02.07.1997 when the OM, based on the judgment of Hon’ble Supreme Court in R.K. Sabarwal v. State of Punjab had been issued and, therefore, the impugned communication dated 28.2.2006 deserves to be quashed and set aside. Learned Counsel further contended that Respondents have not followed the rules / provisions and the instructions meant for ST/SC candidates and accordingly he is entitled to relief prayed for.
3. Respondents contested the claim laid, though admitted the fact that applicant appeared for trade test to the post of Painter HS Grade-II and was declared passed in the year 1998, but stated that no junior to him had been promoted, and as per 200 point roster, ST point 1 stands at serial No. 14 and his promotion to skilled category had been carried out from 1 to 12 point. Vide reply para 4.2, it was admitted that Shri Ram Naresh Yadav belonging to ST category was promoted to HS Grade-I w.e.f. 01.08.1994 but it was explained that: ‘he consumed the vacancy of Gen Category being senior most. On being promoted, there was a surplus in the trade of HS Gde-II as per 200 point roster maintained by this Depot and to rationalize the existing surplus point No. 14 (Shri B.L. Meena being ST category) was not promoted due to non existence of vacancy.’ In same para, it was further stated that: ‘no ST candidate has been superseded. Promotion, which was given to Shri Bharat Lal Meena in the year 2005 was purely on seniority basis. Further, the cadre strength of HS Grade-II being 5, was not denied. Vide reply para 4.4 to 4.6 it was stated that details of individuals occupying the said post during the years 1994 – 1999 as per their seniority on roster point were as follows:
S. No. T. No. Name Dt. of senior- Dt. of promotion
rity Skilled Grade
1 1926 Mansu Ram (SC) 01.04.87 01.08.94
2. 2682 Shiban 01.01.88 01.11.95
3. 1346 Zilley Singh (SC) 01.01.89 01.02.98
4. 952 Harpal Singh (SC) 01.01.89 25.09.98
5. 1983 Kure Ram (SC) 01.06.89 01.03.99
4. Applicant’s name was falling at serial No. 12 in the year 1998 and as per his seniority in the existing cadre/grade and further, according to post based roster, the vacancy of ST was to be earmarked at point No. 14. Later on, the cadre structure was modified by the Government vide letter dated 20.05.2003 and consequent on modification of the grade structure of HS-II, he was placed at serial No. 12 against the authorized strength. It was reiterated that ‘applicant was given promotion to the post of HS-II on 01 Sep 2005 as per his seniority in the reserve category of the feeder cadre.’ Vide reply paras 5.2 and 5.3, it was further stated that ‘fitment promotion to Shri Ram Naresh Yadav (ST) was given against 200 point roster being senior most. As per roster, he stands at point No. 1 which is meant for UR (i.e. against ST + 1) but was promoted under UR vacancy whereas ST promotion stands at points No. 14 & 28 on the roster. As per promotion based roster vacancy of ST will have to be equalized at roster point 14 (i.e. ST +1). Since total promotees of HS-I are 12, two ST candidates cannot be accommodated in the same cadre. There Shri B.L. Meena stands at promotion roster at point No. 28.’
5. We heard learned Counsel for the parties and perused pleadings and material placed on record carefully.
6. At the outset, two legal issues arise for consideration and we may note that we also raised two queries to learned Counsel for respondents, namely, as to how 200 point roster is being maintained and followed particularly after DOP&T’s OM dated 02.07.1997 and secondly, whether there is a per-se contradiction in the stand taken by respondents.
7. Coming to the first question, we may note that Hon’ble Supreme Court in R.K. Sabharwal v. State of Punjab, a Constitution Bench judgment, has held that concept of ‘vacancy’ has no relevance in operating the percentage of reservation. The cadre strength is always measured by the numbers of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidate belonging to the general category are not entitled to be considered for the reserved posts. On the other hand reserve category candidates can compete for the non-reserved post and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. It was further observed therein that ‘the interpretation given by us to the working of the roster and our findings on this point shall be operative prospectively.’
8. In compliance of the aforesaid judgment, Govt. of India, DOP&T issued OM dated 2nd July, 1997 and para 3 of it stated that: ‘With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 200 point, 40-point and 120-point vacancy based rosters shall be replaced by post-based rosters.’ Accordingly, concerned authorities were required to replace earlier roster and it was necessary to ‘adjust the existing appointments in the roster.’ As per para 12 of Annexure-I appended to said OM, in the case of small cadre (upto 13 posts), L type roster was to be maintained.
9. We may note that roster produced before us by the respondents during course of hearing is not in consonance of aforesaid OM. Even the reply filed by respondents make repeated reference to ‘200 point roster’. Vide reply para 4.2 the respondents also stated that: ‘there was a surplus in the trade of HS Gde-II as per 200 point roster maintained by this Depot and to rationalize the existing surplus point No 14 (Shri B.L. Meena being ST category) was not promoted due to non existence of vacancy.’
10. Despite our query raised to respondents on this aspect as to how respondents are still following & maintaining 200 points roster, when they were supposed to maintain only ‘L’ shape roster applicable to small cadre(13posts), as noticed hereinabove, no attempt at all was made to answer the query. In the circumstances, we have no hesitation to record the findings, that the respondents’ action, which is not in accordance with law, cannot be sustained in law.
11. Coming to the second aspect, we may note that even as per impugned communication dated 28th Feb, 2006, respondents in response to applicant’s representation, informed him that ‘according to 200 point roster, promotion of the above named individual had been carried out correctly. It is also intimated that no junior individual has been promoted so far.’ In reply para 4.2, the respondents took specific stand that: ‘As per seniority Roll, it is submitted that no ST candidate has been superseded. Promotion which was given to Shri Bharat Lal Meena in the year 2005 was purely on seniority basis.’ In the same reply para it was further averred that: ‘there was a surplus in the trade of HS Gde-II as per 200 point roster maintained by this Depot and to rationalize the existing surplus point No 14 (Shri BL Meena being ST category) was not promoted due to non existence of vacancy.’ On the other hand, vide reply para 4.4 to 4.6 it is averred that applicant: ‘was given promotion to the post of HS-II on 01 Sep 2005 as per his seniority in the reserve category of the feeder cadre.’
12. There is a vast difference in the meaning of term ‘purely on seniority’ and ‘seniority in the reserve category’. The placement of an official in the seniority list based on Seniority in the ‘reserve category’ need not necessarily be the same as normal seniority. A seniority list includes officials belonging to all categories and castes, while the seniority of reserve category is altogether different & distinct concept. In the given case too, such remain the probability. From reply para 4.4 to 4.6, as extracted hereinabove, particularly in para 3, we have notice that out of five officials promoted since 1st August, 1994, when Ram Naresh Yadav ST category was promoted to the next higher grade of HS-I, till the year 1999, four officials were of SC community and only one of them namely Shiban promoted in the year 1995 belongs to general category. This leads to one inescapable conclusion that few officials belonging to general category were senior to the applicant. How in the cadre, which has sanctioned strength of 5, four officials belonging to SC community alone could have been promoted?, which remains mystery and unexplained.
13. We may also note that much emphasis has been laid by the respondents on Ram Naresh Yadav & the manner in which he was treated in the promoted post of HS Grade-I, but we are not concerned for this, as the only relevant point is that a vacancy arose on promotion of aforesaid officials, who belongs to ST category. Two contradictory stand per se has been taken by the respondents, one which is reflected vide their communications dated 16th Nov, 2004 and reiterated on 25th April, 2005 that Ram Naresh yadav was promoted as High Skilled Grade II w.e.f. 1.8.94 ‘against the ST category’, and second stand reflected from their reply para 4.2 that he was promoted to Gr-I ‘but he consumed the vacancy of Gen Category being the senior most.’
14. The applicant has also stated in his representations dated 10.3.2005 as well as 8.10.2005 that after promotion of Ram Naresh Yadav almost 16 officials have been promoted to the grade in question, which did not include even one person belonging to ST category. Despite the fact point NO 14 falls for ST community, he was denied the said promotion. No reply has been offered on this aspect either in the impugned communication or in the reply submitted to OA. A perusal of the original roster produced before us indeed show that as may as 13 officials were promoted to HS Grade-II after 1.8.1994 when Ram Naresh yadav was promoted to the next higher grade, and total 14 officers names were shown in the said roster. The earliest name shown in the roster is of Sh. Kishan Lal, UR, promoted on 1.11.1993. The officials promoted in the said grade prior to the said date have not been shown in the roster. Therefore, such roster is not in consonance with the DOP&T OM dt. 2.7.1997, particularly when Annexure -I, para 1 under the heading ‘Initial operation’requires that: ‘At the point of initial operation of the roster, it will be necessary to determine the actual representation of the incumbent belonging to different categories in a cadre vis-`-vis the points earmarked for each category viz., SC/ST/OBC and General in the roster. This may be done by plotting the appointments made against each point of roster starting with the earliest appointee.’ The roster produced before us had not carried out such exercise and therefore, aforesaid conclusion is that the said roster do not represent the correct picture about the representation made to each category. We are of the definite view that applicant has not been promoted because of reservation and belonging to ST category, on the other hand, he has been promoted to HS Grade-II merely based on his seniority. Respondents are, therefore, required to consider all aspects of the case and determine as to whether he would or would not be entitled to promotion based on reservation.
15. On examination & comparison of roster for the post of Painter (S) vis-`-vis Painter HS Grade-II, we find that officials, who are shown at serial Nos. 1 to 9 in the feeder grade of Painter (S) were promoted to next higher grade of Painter (HS Gr-II) in same sequence and as many as 6 out of 9 were belonging to SC/ST categories. If the promotions are to be made based on reservation, such could not be the percentage, who could be promoted, particularly when the cadre strength was only 5.
16. In view of the discussion made hereinabove, we observe with great restraint that there was hardly any assistance from the Respondents to appreciate the issues in question. In any case, in view of the discussion made hereinabove, we find no reason & justification to uphold their action. Consequently, OA is disposed of with following directions:
i) Respondents’ communication dated 28th February 2006 is quashed and set aside;
ii) 200 point roster cannot be operated and has to be replaced by post based roster in terms of DOP&T OM dated 2nd July, 1997;
iii) ‘L’ type roster made for small cadre (13 posts) alone can be operated, as the sanctioned strength in the given cadre is only 5;
Respondents should pass a detailed & speaking order in terms of rules and law noticed hereinabove and accordingly determine and adjust applicant in promotional post of HS Grade-II; and
The above exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
No costs.