Gautam Dass v. Union of India & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22 .01. 2008CORAMTHE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO ANDTHE HONOURABLE MR. JUSTICE S.R.SINGHARAVELUWRIT PETITION NO. 11233 OF 2007and M.P.No.1 and 2 of 2007Mr.Gautam Dass... Petitioner Vs.1. Union of India rep. by the Chief Personnel Officer, (ICF), Chennai-5.2. The Senior Personnel Officer/ R & T (now STOAR), Integral Coach Factory, Chennai - 600 038.3. The Deputy Chief Personnel Officer, O/o the CPO, Integral Coach Factory, Chennai-600 038.4. M.Rajendran5. Central Administrative Tribunal, Madras Bench, City Civil Court Building, Chennai-600 104. ... Respondents Writ Petition filed under Article 226 of the Constitution ofIndia for the issuance of writ of Certiorari to call for the recordsrelating to the order passed by the Central Administrative Tribunalin O.A.No.408 of 2006 dated 16.10.2006 and quash the same.For Petitioner : Mr.L.ChandrakumarFor Respondents : Mr.V.G.Suresh Kumar, ACGSC for R1-R3 Mr.P.V.S.Gridhar for R4******* https://hcservices.ecourts.gov.in/hcservices/ O R D E RS.R.SINGHARAVELU,JAggrieved by the order dated 16.10.2006 passed by the Tribunal inR.A.No.5 of 2006 in O.A.No.543 of 2005 and O.A.408 of 2006 filed bythe fourth respondent, the petitioner has filed this writ petitionseeking to quash the said order.2. The brief facts are as follows:- The applicant/4th respondentwas promoted as against SC vacancy by the second petitioner as per theorder dated 9.3.2004. One Smt.P.Neela approached the Tribunal inO.A.No.427 of 2004 against her non selection in the panel dated26.2.2004. Consequent to the quashing of the Panel dated 26.2.2004 bythe Tribunal in O.A.427 of 2004, a second panel dated 29.3.2005 wasdrawn on 21.4.2005. Since the fourth respondent had held the post formore than 2 years from 9.3.2004, he was allowed to continue as ChiefOffice Superintendent vide Office order dated 21.4.2005 and paneldated 28.5.2005 against a vacancy, which subsequently occurred inDecember 2004. Subsequently, one vacancy occurred in February, 2005due to the retirement of Sri.V.Narayanan and a selection process wasproposed for this vacancy. At this stage, one Maheswarlal Babuapproached the Tribunal in O.A.No.543 of 2005 stating that filling upof one vacancy in Chief Office Superintendent by fourth respondentdeprived him of an opportunity to appear for selection, where threecandidates were called for only one vacancy. The Tribunal quashed theorder empanelling the fourth respondent and directed that he has to besubjected to the selection process. Accordingly, promotion orderissued in favour of fourth respondent was cancelled and he wasreverted as Office Superintendent Gr.I. Subsequently, fourthrespondent was promoted on ad hoc basis as Chief Office Superintendentagainst an existing vacancy as his juniors have already been promotedon ad hoc basis. An alert notice was issued to the eligible employeesincluding the fourth respondent for selection to the post of ChiefOffice Superintendent on 15.3.2006. A letter dated 22.3.2006 was alsocommunicated, intimating the date of written test to be held on7.4.2006. At this stage fourth respondent approached the Tribunal inO.A.No.408 of 2006, seeking interim relief restraining the officialrespondents subjecting him to written test. However, the Tribunalpassed an order restraining the official respondents from revertingthe fourth respondent from the post of Chief Office Superintendent.Subsequently, the fourth respondent filed R.A.No.5 of 2006 inO.A.No.543 of 2005 and O.A.No.408 of 2006 seeking injunctionrestraining the official respondents from calling him for modifiedselection again for promotion to the post of Chief OfficeSuperintendent, as he was already selected for the SC vacancy meantfor 2003, pending disposal of the application. The Tribunal afterconsidering the facts and circumstances of the case passed an order https://hcservices.ecourts.gov.in/hcservices/ observing that the Office Order dated 21.4.2005 in so far as theexclusion of the fourth respondent from being adjusted in the SCvacancy is illegal and consequently O.A.408 of 2006 is allowed asprayed for. Based on the order passed by the Tribunal in theabove R.A., Sri.Pughazendhi who was selected against SC point havebeen shown against UR and the name of the fourth respondent wasincluded in the panel against SC point. The petitioner being the lastUR candidate in the panel was deleted from the panel sinceSri.Pughazendhi who was originally selected against SC point has beenshown against UR point. 3. In the counter affidavit filed on behalf of the thirdrespondent it is submitted that initially, based on the cadre ofrestructuring orders dated 9.10.2003, a panel consisting of 6employees was published wherein Smt.P.Neela, the senior-most employeedid not find a place. Based on the Tribunal's order in O.A.No.427 of2004, filed by Smt.P.Neela for her non-inclusion in the panel, arevised panel including the name of Smt.P.Neela and deleting the nameof Shri.Rajendran was published vide panel dated 29.3.2005. TheTribunal passed orders in this O.A. to include the name ofShri.Rajendran against the only SC vacancy and Sri.Pughazhendi shownagainst the UR vacancy. As a result of implementation of the ordersin this O.A., the petitioner's name had to be deleted from the revisedpanel dated 19.12.2006. Hence, the revision of panels three times wasas per the orders of the judiciary and not an irregularity committedby the Railway Department. 4. We have heard the learned counsel for the petitioner as wellas the learned Additional Central Government Standing Counselappearing for the Respondents 1 to 3 and the learned counsel appearingfor the 4th Respondent. 5. Challenging the order dated 16.10.2006 in R.A.No.5 of 2006 inO.A.No.543 of 2005 and O.A.No.408 of 2006 filed by Rajendran, (4thRespondent), this writ petition was filed by one Gautam Dass. Theseniority position of the said persons can be understood from thefollowing table. https://hcservices.ecourts.gov.in/hcservices/ ----------------------------------------------------------------------Sl. Name Increment Promn. Existing TR/PR/RV toNo. Emp.No. Dt. in the Roster Pay in Scale Pay in Scale Shri/Smt. Lower Gr. Sl.No. & Designation Designation reserved Unit/T.No. To Unit. against----------------------------------------------------------------------1. Neela P 1.4.2003 6(UR) 7900-10500 8125 Chief Office Supdt. Promotiond OS Gr-I2. Maheswari Murthy.K 1.4.2003 8(UR) -do- -do- Promotion3. Narayanan.V 1.5.2003 9(UR) -do- -do- Promotion4. Pugazhendi.V 1.10.2003 7(SC) -do- -do- Promotion Against SC Vacancy 5. Saradamoni.K 1.12.2003 4(UR) -do- -do- Promotion6. Gautamdas.K 1.12.2003 5(UR)-do- -do- Promotion7. Rajendran.M 1.07.2003 10(UR) -do- -do----------------------------------------------------------------------- 6. Employees at Serial Nos.1 to 4 were posted against thevacancies arisen out of restructuring and given benefit of thepromotion with effect from 1.11.2003 whereas the junior employees atSerial Nos. 5 & 6 were posted against the normal vacancies existing on1.11.2003 and they will get promotion and higher pay from 9.3.2004.Serial No.7 is deemed to have been empanelled against the secondvacancy, which occurred in December 2004 and allowed to continue. 7. Originally, there was issuance of first panel which is dated26.2.2004 empanelling 6 employees for the post of Chief OfficeSuperintendent. They are:-1. Smt.Maheswari Murthy2. Sri V.Narayanan 3. Sri V.Pughazendhi (SC)4. Smt.Saradamoni5. Sri K.S.Gauthamdas (Writ Petitioner)6. Sri M.Rajendran (SC) 8. As per the order dated 9.3.2004, M.Rajendran (4th Respondent)was promoted as against SC vacancy. P.Neela, who was not selected inthe above panel filed O.A.427 of 2004 on the file of the CentralAdministrative Tribunal, Madras Bench, Madras, to quash the above said https://hcservices.ecourts.gov.in/hcservices/ first panel.9. Second panel dated 29.3.2005 was drawn on 21.4.2005 deletingthe name of M.Rajendran (4th Respondent). However, he was allowed tocontinue as Chief Office Superintendent by order dated 21.4.2005, ashe was holding the post for more than two years from 9.3.2004.10. Subsequently, a vacancy arose in December 2004 for which apanel dated 28.5.2005 was prepared. Thereafter, upon the retirementof V.Narayanan a vacancy arose in February 2005 and selection processwas mooted therefor. At this stage one Maheswarlal Babu filedO.A.No.543 of 2005 objecting the filling up of one vacancy in ChiefOffice Superintendent by 4th Respondent and stating that thereby hewas deprived of an opportunity to appear for selection. The Tribunalquashed the order empanelling the fourth respondent viz., M.Rajendranand directed that he has to be subjected to the selection process. Sothe promotion order issued in favour of fourth respondent wascancelled and he was reverted as Office Superintendent Grade I.11. Subsequently, 4th Respondent was promoted on ad hoc basis asChief Office Superintendent against an existing vacancy as his juniorswere already promoted on ad hoc basis. 12. An alert notice dated 15.3.2006 and a communication dated22.3.2006, for the written test to be held on 7.4.2006 werecommunicated to the eligible employees including the fourth respondentfor selection to the post of Chief Office Superintendent. 13. Aggrieved over the above said communication the fourthrespondent has filed O.A.No.408 of 2006 on the file of the Tribunal,seeking interim relief restraining the official respondents fromsubjecting him to written test. The Tribunal passed an orderrestraining the official respondents from reverting the fourthrespondent from the post of Chief Office Superintendent.Subsequently, he has also filed R.A.No.5 of 2006 seeking injunctionrestraining the official respondents from calling him for modifiedselection again for promotion to the post of Chief OfficeSuperintendent. According to the fourth respondent he was alreadyselected for SC vacancy meant for 2003, therefore, he should not beagain subjected for modified selection. 14. The Tribunal after considering the facts and circumstances ofthe case passed an order observing that the office order dated21.4.2005 in so far as the exclusion of the fourth respondent frombeing adjusted in the SC vacancy is illegal and consequently allowedthe O.A.No.408 of 2006. When once the fourth respondent's adjustmentin SC vacancy was upheld in O.A.No.408 of 2006, Pughazendhi, who wasselected against SC point was shown against UR. When once Pughazendhi,who was originally selected against SC point was shown against UR https://hcservices.ecourts.gov.in/hcservices/ point, the petitioner being the last person in the UR point wasdeleted from the panel. It is aggrieved over the same the petitionerhas come forward with this writ petition by pointing out theincorrectness in the order passed in O.A.No.408 of 2006 observing thatthe office order dated 21.4.2005 in so far as exclusion of the fourthrespondent from being adjusted in the SC vacancy is illegal. 15. It is not in dispute that Pughazendhi was selected on his ownmerit in the panel dated 9.3.2004; but was adjusted against the URvacancy on the ground that fourth respondent M.Rajendran alsobelonging to SC community was adjusted against SC vacancy in thepromotion order dated 9.3.2004.16. The writ petitioner can succeed only if he shows thatPugazhendi, who was a SC candidate although was selected on meritshould have been adjusted only in the SC vacancy and such an order isvery much necessary when the promotion of fourth respondentM.Rajendran was wrongly adjusted against SC vacancy. 17. In order to show that Pughazhendi, who happened to be a SCcandidate should have been adjusted against SC vacancy, on behalf ofthe writ petitioner reliance was placed upon the followingclarifications and the Railway Board's letter dated 7.9.2002. Such ofthe letter (Annexure R-4 in OA 543/05) sets out the procedure forpromotion of the SC/ST candidate on their own merit. The relevantpara is extracted below:"(ii) If an unreserved vacancy arises in cadre and there isany SC/ST candidate within the normal zone of considerationin the feeder grade, such SC/ST candidate cannot be deniedpromotion on the plea that the post is not reserved. Such acandidate will be considered for promotion along with othercandidates treating him as if he belongs to generalcategory. In case he is selected, he will be appointed tothe post and will be adjusted against the unreserved point."18. The further clarification given on 6.5.2005 which is longafter the preparation of the panel dated 9.3.2004 stated in para 2 asfollows:-" It is also clarified that since in the case of promotionsby Non-selection, promotions are made on the basis ofseniority-cum-fitness and the concept of merit is notinvolved in such promotions, instructions contained inBoard's letter dated 7.8.2002 and 20.6.2003 referred toabove do not apply to the promotions made by Non-selectionmethod. " https://hcservices.ecourts.gov.in/hcservices/

19. By relying upon the clarification above mentioned it wasasserted on behalf of the writ petitioner that appointment ofPughazhendi to the post would have to be adjusted against the reservedpoint, inasmuch as the Railway Board's letter dated 7.8.2002 enablingsuch adjustment against unreserved point in so far as it is a non-selection promotion will not get applicable by virtue of theclarification dated 6.5.2005.20. In this context the Tribunal in para 17 of its order dated16.10.2006 has posed a question, "though the clarification letter ofthe Board dated 6.5.2005 says that merit is not involved in the non-selection promotion. Does it mean that SC/ST candidates who areentitled to be considered as per their seniority position need not beaccommodated as per their seniority and rank and has to beaccommodated only in the SC vacancy? The answer can only be 'No'.21. We have carefully analysed the above position and agree withthe findings of the Tribunal, which has got support from thefollowing decisions:(1) Sawhney v. Union of India 1992 Supp (3) SCC 217, wherein itwas held that SC candidates selected on the basis of their own meritneed not be counted against the quota reserved SC candidate. Theywill be treated as open competition candidate.(2) In R.K.Sabharwal v. State of Punjab 1995 (3) SLJ 227, whereinit was held that the reserved category candidates can compete for thenon reserve posts and in the event of their appointment to the saidposts, their number cannot be added and taken into consideration forworking out the percentage of reservation.(3) In Union of India v. Virpal Singh Chauhan 1995(6) SCC 684,wherein it was held that candidates selected/promoted on the rule ofmerit (and not by virtue of rule of reservation) shall not be countedas reserved category candidates. (4) In Ritesh R.Sah v. Dr.Y.L.Yamul and Ors. (1996)3 SCC 253,wherein it was held that a student who is entitled to be admitted onthe basis of merit, though belonging to a reserved category cannot beconsidered to be admitted against seats reserved for reservedcategory.(5) In Union of India v. Satya Prakash & Ors. 2006 (3) SLJ 74,wherein it was held as follows:" In other words, while a reserved category candidaterecommended by the Commission without resorting to therelaxed standard will have the option of preference from thereserved category recommended by the Commission by resortingto relaxed standard, but while computing thequota/percentage of reservation he/she will be deemed tohave been allotted seat as an open category candidate (i.e. https://hcservices.ecourts.gov.in/hcservices/ on merit) and not as a reserved category candidaterecommended by the Commission by resorting to relaxedstandard."22. As observed in the above decisions it was right on the partof the Tribunal to have held that, "there is no scope for thedepartment to plead that in case of non-selection promotion, it isopen to them to adjust the SC candidates on their liking. The seniormost available SC candidates beyond the number of reservationvacancies is to be adjusted in the quota reserved for them."23. Therefore, the distinction made by the department on thebasis of clarification dated 6.5.2005 is contrary to the law laid downby the Hon'ble Supreme Court and the earlier Railway Board'scirculars. As a result the adjustment of Pughazhendi against URvacancy is correct since Rajendran who happens to be the senior thanPughazhendi and belongs to SC community is adjusted against SC pointespecially in the absence of any other candidate of the same categoryis found correct. When these two premises go against the writpetitioner's contention the claim of the writ petitioner cannot becountenanced. 24. The adjustment of Rajendran the fourth respondent against theSC vacancy is also not against the order passed in O.A.No.427 of 2004filed by one Neela, to quash the panel dated 26.2.2004, as Rajendranwas not a party thereto; had he been made a party in O.A.No.427 of2004, he would have succeeded in establishing that he should not bedisturbed even if Smt. Neela the applicant therein have not claimedfor either of the vacancies in which he had staked his claim. Evenin O.A.No.543 of 2005 preferred by Maheshwarlal Babu against fillingup of one vacancy in Chief Office Superintendent by fourth respondentwhat was contemplated was only maintainability of the deemedempanelment of Rajendran and not about his adjustment towards SCvacancy. Therefore, the order passed in the above O.A. also do notstand in the way of adjustment of name of fourth respondent(M.Rajendran) against SC vacancy especially when there was no claimmade by the person belonging to the same category in community. https://hcservices.ecourts.gov.in/hcservices/

25. Thus, looking at in any angle the adjustment of fourthrespondent against the SC vacancy is found correct. The subsequentorder of adjustment of Pughazhendi against UR vacancy is also foundcorrect. Therefore, we see no reason to interfere with the order ofthe Tribunal. There is no merit in the writ petition. The writpetition fails and is dismissed accordingly. No order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrargr.To1. The Chief Personnel Officer, (ICF), Chennai-5.2. The Senior Personnel Officer/R & T (now STOAR), Integral CoachFactory, Chennai - 600 038.3. The Deputy Chief Personnel Officer, Integral Coach Factory,Chennai-600 038.4. The Registrar,Central Administrative Tribunal, Madras Bench,Chennai-600 104.+1cc to Mr.L.Chandrakumar, Advocate Sr 2498+1cc to M/s. P.V.S.Giridhar Associates Sr 2150MA (CO)km/28.1.W.P.No.11233 of 2007