High Court · 2012

We have heard Mr. K. N. Choudhury, Senior Advocate assisted by M 02. r. R. Dubey, Advocate for the petitioner, Mr. DC Chakraborty, learned Central Go vt. Standing Counsel for the Respondent Nos. 1, 2 and 3 and Mr. S. Das, Advocate for Respondent Nos. 4 to 8.

03. Briefly stated, the facts indispensable for dealing with the iss ues involved are that the petitioners and the private respondents were initially appointed as direct recruits in the cadre of Inspector in the Shillong Commissi onerate under the official respondents. Following a decision to effect restructu ring of the Customs and Excise Department (for short, hereinafter referred to as the ’Department’), 150 posts of Superintendent Group-B were created in the Shil long Commissionerate. In the same process, 115 posts of Inspectors were reduced. Subsequent thereto, the concerned Departmental Promotion Committee (for short, hereinafter referred to as the ’DPC’) initiated a process for promotion to these newly created posts of Superintendent Group-B and in the proceeding that follow ed, it considered the case of the eligible incumbents in the cadre of Inspector who were within the zone of consideration and on the basis of the recommendation s made it, by the aforesaid order dated 29.9.2002, 149 candidates including the petitioners and the respondent Nos 9 to 23(names deleted vide order dated 28.10. 2011, as sought for) were promoted thereto. Admittedly, the post of Inspector is in the feeder cadre for promotion to that of Superintendant Group-B. Respondent Nos. 4 to 8 not being recommended were not promoted.

04. Being aggrieved, Respondent Nos. 4 to 8 approached the learned T ribunal assailing this order of promotion alleging their supersession by the can didate juniors to them the existing seniority list in the cadre of Inspector. Th ey alleged as well, that in the process there had been over utilisation of the q uota of Scheduled Caste and Scheduled Tribe candidates. The learned Tribunal in Original Application NO. 114/2003 that was registered on this impugnment, by its decision dated 26.2.2004 interfered with the order dated 29.9.2002 whereupon th e official respondents approached this Court with WP(C) No. 5820/2004. This peti tion was disposed of by judgment and order dated 13.05.2008 whereby the matter w as remanded to the learned Tribunal for a fresh decision in accordance with law. Though this Court noticed the rival contentions as above, it as such did not de cide the issues raised on merit and interfered with the adjudication of the lear ned Tribunal for want of necessary particulars of the posts or number of existi ng posts and further, details relating thereto having a bearing on the decision making process. Before this Court, the Respondent Nos. 4 to 8 herein had also ra ised a new plea that as 150 posts of Superintendent Group-B were the yield of th e process of restructuring, no reservation policy could be applied in the exerci se of filling up the same and thus on that count as well, the impugned promotion s awarded to the petitioners and the Respondents NOs.9 to 23(names deleted vide order dated 28.10.2011) were no est in law.

05. After the remand, the Respondent Nos. 4 to 8 filed an additional affidavit bringing on record, inter alia, a copy of the letter No.FNOA-1109/72/ 99.Ad.IV dated 19th July, 2001 of the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs conveying the approval of the Central Government to the restructuring of the department and setting out as well the modalities for filling up the posts at different levels consequent thereto. These, respondents, however, reiterated that the process contemplating filling up of the posts did not envisage promotion and that the policy of reserv ation was inapplicable vis a vis, the upgraded posts.

06. The official respondents in their additional pleadings however, refuted this plea and insisted that the additional posts were intended and had in fact, been filled up by promotion thus permitting invocation of the norms of reservation as known in law. The learned Tribunal by the decision impugned herein did uphold This letter did not indicate that restructuring was on the basis of func There was no provision in the communication dated 19.07.2001 that the pr

07. the assailment on the following grounds:- a) inciples of reservation would be applicable in restructuring of the department. b) tional, operational and administrative requirements. c) In the process of restructuring, 115 posts of Inspectors had been abolis hed/reduced precipitating an increase of 150 posts in the cadre of Superintenden t Group-B d) ndigarh and Patna etc. A similar challenge had been sustained by the coordinate Benches art Cha

08. Mr. Choudhury, has argued that as it would be unequivocally appa rent from the communication dated 19.07.2012 that the additional posts of Superi ntendent Group-B, in the department, following the restructuring, were to be fil led up by promotion as a one time measure, thus implying the permissibility of t he application of the rule of reservation therefor, the learned Tribunal fell in gross error in holding to the contrary. Referring to the original application f iled by the respondent Nos. 4 to 8 before the learned Tribunal, to initiate the lis, the learned Senior Counsel relying, particularly on the averments made in p ara 6.3 and 6.4 thereof, has insisted that it would be patent therefrom that the respondent Nos. 4 to 8 had admitted that the posts of Superintendent Group-B on restructuring were to be filled up by promotion and that in reality in doing so , the official respondents had over utilized the reserved quota thereof. Accordi ng to Mr. Choudhury, the reasons cited by the learned Tribunal in seeking to dis tinguish the decision of the Apex Court in Union of India Vs. Pushpa Rani & Ors. , (2008) 9 SCC 242 are fully flawed, thus vitiating the impugned decision. The l earned Senior Counsel has relied on this decision to reinforce his challenge.

09. Whereas, Mr. Chakraborty, learned Central Government Counsel end orsed the grounds of assailment proffered on behalf of the petitioners, Mr. Das, relying on the decisions of the Apex Court in Union of India Vs. VK Sirothia, 1 999 SCC (L&S) 938 and All India Non-SC/ST Empl. Assn. (Railway) Vs. VK Agarwal & Ors., AIR 2002 SC 2875, emphatically urged against any interference with the im pugned decision. The learned counsel insisted that as the scheme of restructurin g of the department did rule out any contemplation to fill up the resultant addi tional posts of Superintendent Group-B by promotion and instead mandated a proce ss of up gradation of the Inspectors thereto, the reliance on Union of India Vs. Pushpa Rani & Ors (Supra) to impeach of the decision of the learned Tribunal is wholly misconceived.

10. We have scrutinized the pleadings of the parties and have applie d ourselves to the arguments advanced. Admittedly, the decision of the Central G overnment to restructure the department had been conveyed by the letter dated 19 .07.2001 of the Deputy Secretary to the Govt. of India, Ministry of Finance, Dep artment of Revenue, Central Board of Excise and Customs adverted to hereinabove. A plain perusal of the said letter reveals the realization of the authority con cerned that as a consequence of such restructuring a change in the number and no menclature of various groups/posts had ensued. The arrangement contemplated, env isaged that wherever there was a reduction in the number of posts at any level s uch reduction would be effective after the existing incumbents of the posts were promoted to the higher level or the post would fall vacant on account of retire ment etc. No direct recruitment was permitted in the year 2001-02 without the ap proval of the ministry/department, as the Cabinet had approved, as a one time re laxation, filling up of vacancies by promotion in all cadres. This official communication, therefore demonstrates in unassaila 11. ble terms that all vacancies in all grades consequent upon the restructuring of the department had been decided to be filled up by promotion as a one time initi ative. There is no material on record to the contrary. A conscious decision of t he concerned authorities to fill up such vacancies including those of Superinten dent Group-B is, thus apparent on the face of the records, it being a one time e xception. That, the necessity of restructuring the department was essentially on functional, operational and administrative exigencies is unmistakably inherent in the process and in our opinion, cannot be doubted. The reduction of 115 posts of Inspectors, per se, according to us, is not mutilative of the decision to fi ll up the additional vacant posts in the higher grade of Superintendent Group-B by promotion. The absence of any specific indication in the letter dated 19.07.2 001 qua the applicability of the principles of reservation in the face of the o bvious decision to fill up these posts by promotion is of no consequence, as wel l. The concerned authorities having decided to fill up the additional vacant pos ts of Superintendent Group-B by promotion as a one time measure, the policy of r eservation, as a corollary, was applicable.

12. In Union of India Vs. Pushpa Rani & Ors (Supra), their Lordships were in seisin of the issue as to whether reservation for Scheduled Castes and Scheduled Tribes was applicable to the restructuring of Group C & D cadres done by the Railway Board. Observing that the answer to this poser depended upon whet her the process of restructuring was one for upgradation of existing posts simpl iciter or did involve promotion, thus attracting the policy of reservation, thei r Lordships in paragraph 35 of the decision enunciated thus: - (cid:28)35. A careful reading of the policy contained in Letter dated 09.10.2003 shows that with a view to strengthen and rationalize the staffing patter, the Ministry of Railways had undertaken review of certain cadres. The basis of the review wa s functional, operational and administrative requirement of the Railways. This e xercise was intended to improve the efficiency of administration by providing in centives to the existing employees in the form of better promotional avenues and at the same time requiring the promotees to discharge more onerous duties. The policy envisaged that additional posts becoming available in the higher grades a s a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility i ncluding the minimum period of service and who are adjudged suitable by the proc ess of selection. This cannot be equated with up gradation of posts which are re quired to be filled by placing the existing incumbents in the higher grade witho ut subjecting them to the rigor of selection. (cid:29)

13. It would be apparent from the above quote that it was noticed in the contextual facts that the basis of the review was functional, operational a nd administrative requirement of the Railways intended to improve the efficiency of its administration by providing incentives to the existing employees in the form of better promotional avenues and at the same time requiring the promotees to perform more onerous duties. That the policy envisaged to fill up the additio nal posts thrown up by the process of restructuring, by employees who satisfy th e conditions of eligibility was taken note of as well. Their Lordships were of t he view that the arrangement envisaged could not be equated with up gradation of posts to be filled up by placing the existing incumbents in the higher grade wi thout subjecting them to the rigour of selection. On an analysis of the facts involved, in our comprehension, the 14. decision in Union of India Vs. Pushpa Rani & Ors (Supra) is a complete answer to the issues raised in the instant proceedings. Not only, the letter dated 19.07. 2001, to reiterate, discloses a conscious decision of the authorities concerned to fill up, amongst others the additional posts of Superintendent of Group-B by promotion, there is nothing on record to even suggest that the restructuring of the department had not stemmed from the functional, operational and administrati ve requirements thereof. The reasons recorded by the learned Tribunal in support of its findings, therefore, do not commend for acceptance in the facts and circ umstances of the case. Though, there cannot be any quarrel with the proposition recorded in Union of India Vs. VK Sirothia and All India Non-SC/ST Empl. Assn. ( Railway) Vs. VK Agarwal & Ors., (Supra), in the face of the obvious decision of the official respondents to fill up the additional vacant posts of Superintenden t Group-B following the restructuring of the department by promotion as a one ti me measure, these are of no avail to the respondent Nos. 4 to 8.

15. In the wake of the above, there is merit in the challenge, which is hereby sustained. The impugned judgment and order rendered by the learned Tr ibunal is, thus interfered with. The petition is allowed. No costs.