JUDGMENT
S.B. Sinha, C.J.
1. An order of the Central Administrative Tribunal, Principal Bench, New Delhi dated 10.03.1999 passed in O.A. No. 555 of 1993 is in question in this writ petition whereby and whereunder the Original Application filed by the unofficial respondent herein was allowed.
2. In the aforementioned Original Application, the applicant, i.e., unofficial respondent herein had inter alia questioned an order dated 04.05.1992 in terms whereof Shri Ram Narain, i.e., the petitioner herein was promoted to the post of Senior Refrigeration Mechanic HS-I in the scale of pay of Rs. 1320-30-1560-EB-40-2040 on the ground that he was a Scheduled Caste category candidate, which could be effected in the reserved category quota. The short question involved in this writ petition is as to whether such an assumption was correct.
3. Before the learned Tribunal as also before us, the petitioner or the official respondents had not produced any record to show as to how and in what manner 40 points Roster for grant of promotion to the reserved category candidates had been followed. The learned Tribunal having regard to the conduct of the official respondents herein drew an adverse inference to the effect that had such roster been produced, the same would not have supported their plea.
The learned Tribunal had also taken into consideration the fact that the specific cause of the applicant/ unofficial respondent is that respondent No.5 being a Union leader was promoted out of the way and upon a protest made in this behalf, his promotion was cancelled. Despite the same he again on a different pretext had been promoted. The learned Tribunal observed:-
“6 … On the material on record, we are unable to hold that the vacancy to which the 5th respondent was promoted was reserved for Scheduled Caste as contended by the respondents. The total number of HS-1 posts available even according to the respondents ins only five. The applicant has asserted that Shri Rohtas Singh who was promoted as Charge Refrigeration Mechanic which post is counted as HS-I was promoted against the Scheduled Caste category and he is holding one of those five posts. If that is so, it is unintelligible as to how there could again be another Scheduled Caste vacancy in the Roster, which could have been made available to 5th respondent. On the material on record, we are of the opinion that the applicant who was the senior-most had to be considered for promotion to HS-I for the vacancy, which was given to 5th respondent.”
4. The Union of India has not filed any writ petition questioning the aforesaid order of the learned Tribunal. It is not in dispute that before the learned Tribunal, Shri Ram Narain, the petitioner herein did not contest.
5. The factual matrix involved in the matter is admitted, which shortly stated is as under:-
Shri Manjjit Singh Ahluwalia, the unofficial respondent herein,w as appointed as Refrigeration Mechanic on 30.11.1971, while Shri Ram Narain, the petitioner herein, was appointed as Refrigeration Mechanic only on 02.12.1982. Both the petitioner and the unofficial respondent were appointed in the grade of Highly Skilled Grade-II (in short, ‘H.S.-II’) on 15.10.1984. Thereafter, the petitioner was promoted as Highly Skilled Grade-I (in short, ‘H.S.-I’) on 04.05.1992 being one of the Scheduled Caste category candidates. One Mr. Rohtas Singh was promoted as H.S.-I on 06.04.1981. The promotion of the petitioner herein was cancelled on the ground that the said vacancy was to go to a general category candidate. This fact was detected when one Mr. Amarjit Singh made representation to the concerned authorities.
6. It is not in dispute that H.S.-II is the feeder category for promotion to H.S.-I and the vacancy in the Scheduled Caste category was filled up by the said Mr. Rohtas Singh, who had been promoted as far back as on 06.04.1981. Having regard to the factual events, as noticed hereinbefore, it now stands admitted that the petitioner herein had wrongly been granted promotion on 04.05.1992 in the category of Scheduled Caste vacancy, as a result whereof the promotion granted to him was cancelled.
Despite the fact that he had been promoted on 04.05.1992 in the Scheduled Caste category vacancy, the petitioner himself accepts that in the seniority list of H.S.-II, the petitioner’s name figured at S.No.10; whereas the name of the unofficial respondent figured at S.No. 3; and that of Mr Amarjit Singh was at S.No.1; and furthermore that of Mr. Anil Soni was at S.No. 2.
7. Mr. Khurana, the learned senior counsel appearing on behalf of the petitioner, submitted that the petitioner cannot suffer due to fault on the part of the official respondents herein. The learned senior counsel would contend that all the official records were in possession of the official respondents and, thus, it was their duty to produce the same.
In any event, the learned senior counsel would urge that having regard to the fact that Mr. Amarjit Singh had already been promoted, the unofficial respondent in view of his position in the seniority list, which is at S.No.3 could note promoted as Mr. Anil Soni, who is at S.No. 2 thereof, is yet to be promoted. On the aforementioned premise, it was argued that the original application filed by the unofficial respondent was not maintainable.
8. By an order dated 07.10.1999, a Division Bench of this Court directed the official respondents herein to keep the original records ready on the next date of hearing. From the Order Sheet dated 07.03.2001, it appears that two days’ time had been sought for production of the records. On the next date fixed, namely, 09.03.2001, a Division Bench of this Court observed:-
“…..Today L/C for respondents 2 to 5 Mr. Nishakant submitted a photocopy of letter dated 14.11.1991 and also a register containing some entries at one page which is not signed or attested by anyone to suggest that the newly created post was a SC/Reserved category post. We have examined the letter as also the entry in the irregularly maintained register. We are prima facie not able to father whether the post in question was declared a Scheduled Caste post before promotion was ordered on it. At this stage, Mr. Nishakant prays for an adjournment to allow respondents 2 to 5 to re-examine the matter and to take instructions. Register submitted on behalf of Respondents is ordered to kept in court custody in a sealed cover for consideration of the matter on the next date. …..”
Further, six weeks’ time had been prayed for and was granted by the Division Bench of this Court on 16.05.2001. Yet again, adjournment had been sought for and was granted to respondent Nos. 2 to 5 to ascertain the position as to whether the post on which petitioner was promoted was declared a Scheduled Caste post before his promotion on 16.10.2001; 21.11.2001; 14.12.2001; and other dates.
9. The learned counsel appearing on behalf of the respondents, on the other hand, very categorically stated that except one register, they do not have any records.
10. It is interesting to note that the reply affidavit on behalf of respondent Nos. 2 to 5 has been affirmed by one Shri Bhola Singh wherein it was averred:-
“5. That in reply to the contents of para 5 of the Petition, it is submitted that the 40 point roster available and maintained by the respondents from 1986 indicate that the Petitioner was promoted against SC quota. However the whereabout of the same is not forthcoming as being 19 years old case and therefore, could not be produced before the CAT in OA No. 555/93.”
The verification in support of the said contention has been made in the following terms:-
“VERIFICATION:
Verified at New Delhi on this the… day of August, 2000 that the contents of the above affidavit are based on the information derived from the official records and which are believed by me to be true and correct, I state that no part of the affidavit is false and nothing material has been concealed there from.”
11. It is a matter of great regret that the official respondents not only took recourse to such untenable plea, they took recourse to suppressio veri and suggestio falsi . Before us, a register has been produced. The cover page whereof is said to be 40 points Roster, but the relevant portion whereof, which is as follows, does not make any sense:-
Reservation brought from previous year SRCII/Ref/Mech HS-I Particulars of promotion made Name of the person and date or maturity Whether he is SC/ST or Not, Neither Reservation contd. Forward Signature of Appt Auth. or Auth. Off. Remarks SC ST Apptt. year Roster of point No. U/R or reserved forSC/ST according to Roster applicable SC ST - 92 4/92 SC 357298 Shri Amarjeet Singh (GE (R&D) Neither - -- Promoted to Sr. Ref. Mech. HS-1 vide 1067/IP / 932 / DAB (It. 25/4/92 (25/4/92) Nil - 92 2/92 UR MES / 365768 Shri Ram Narain, (GE (R&D) SC Nil - -do- 3 UR 4 ST
Apart from above, a photocopy of the note-sheet dated 14.11.1991 had been filed, which also does not show that 40 points Roster had been maintained.
12. The specific case of the unofficial respondent herein had been that the promotion of the petitioner is contrary to rule inasmuch as only 15% vacancies existed in the Scheduled Caste category candidates’ quota. As before us also no Roster had been produced, we are of the opinion that the learned Tribunal rightly drew an adverse inference against the official respondents.
We do not also appreciate how the deponent of the counter affidavit filed on behalf of the respondent Nos. 2 to 5 could make the statements, as noticed hereinbefore, which although are said to be derived from the records of the case, but no records had been produced. We depreciate such action on the part of the Officers of Government of India and hope that in future no such untenable stand would be taken by it.
So far as question of locus standi of the unofficial respondent, i.e., respondent No.1 herein is concerned, the same has no relevance. If the petitioner had been promoted illegally, the same is a nullity and thus, must be set aside.
13.The Apex Court recently in S. Renuka and Ors. v. State of A.P. and Anr. , categorically held that any appointment made in contravention to the recruitment rules would be nullity. It was held:-
“8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on a panel. The petitioners have no right to claim an appointment. Even otherwise, the selection was contrary to the rules in force at that time. There could on the 100% reservation for women. Also the reservation policy had not been adhered to. The posts, which are created, are posts of District and Session Judge, Grade II. There is no separate post for Judges of Family courts and Mahila Courts. Thus the petitioners could not be appointed as Judges of Family Courts and Mahila Courts in ex-cadre pots even provisionally. This would amount to creation of Ex-cadre posts not sanctioned by the Government. No fault can be found with the High Court being in favor of not appointing the petitioners.”
14. For the reasons aforementioned, there is no merit in this writ petition, which is dismissed accordingly. However, having regard to the peculiar facts and circumstances of the case, we direct respondent Nos. 2 to 5 to pay costs of this petition to the respondent No. 1 herein, which is quantified at Rs. 10,000/-.