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Judgment
Pradeep Kumar, Member (A)
MA No.833/2014, filed by respondents for taking on record certain additional documents, is allowed.
Applicants were initially appointed on Group-B Statistical functional post. Their channel of promotion was to Junior Time Scale/Senior Time Scale (JTS/STS) which is Grade-IV of Indian Statistical Service (ISS) in the scale of Rs. 8000-13,500/ Rs.10,000-15,200 respectively. The applicants were promoted as Assistant Director, which is a JTS level post at various points of time during the years 2004-2011.
The relevant rules which provide for such promotion are contained in Service Rules Para 8 (1) (a), which were notified on 01.11.1961. These rules provide that 60% of the vacancies in JTS grade shall be filled by direct recruitment through an open competition to be held by the UPSC in the manner specified in Schedule-II therein. The remaining 40% of the vacancies in JTS grade are to be filled by selection/promotion from amongst officers serving in various offices under the Government, in statistical post recognised for this purpose by the controlling authority, who have to prepare a list of such posts in consultation with the UPSC. In respect of this 40% promotee quota the minimum qualifying service in Group-B was specified as 4 years.
These Service Rules were modified on 14.09.2005 wherein the word "vacancy" was replaced by the word "posts" and the qualifying period was increased to five years. In respect of 40% promotee quota, following was specified in these modifications:
"(ii) 40 percent of the posts in the Junior Time Scale shall be filled by selection from amongst officers belonging to the Subordinate Statistical Service in the pay scale of Rs.6500-200-10500. The promotion shall be made by selection from amongst those who have completed at least five years of service on a regular basis in these posts including service rendered, if any, in the Non-Functional scale of Rs.7450-225-11500, by the Controlling Authority on the recommendations of Departmental Promotion Committee headed by Chairman/Member, Union Public Service Commission.
Provided that if any junior who has completed five years eligibility service is being considered for selection for appointment against these vacancies all persons senior to him in that officer would also be considered provided they are not short of the requisite eligibility service by more than half of such eligibility service or two years, whichever is less, and have successfully completed their probation period on promotion to next higher grade along with their juniors who have already completed such eligibility service."
This modification dated 14.09.2005 was carried out in the wake of judgment by Hon"ble Supreme Court in R.K.Sabharwal vs. State of Punjab, (1995) 2 SCC 745 wherein post based roster was specified. The relevant DOP&T instructions were issued vide OM dated 02.07.1997.
When the various posts under promotee quota were pertaining to the years 1997-98 to 2004-05 were to be filled, the respondents sought a clarification vide their OM dated 31.03.2010 from DOP&T regarding the number of vacancies to be considered in respect of Direct Recruitment (DR) quota as well as promotee quota. This was clarified by DOP&T vide their letter dated 21.04.2010 wherein it was specified that the prevalent recruitment rules (RRs) for the years shall be applicable.
Thereafter, the respondents sought another clarification from DOP&T vide their letter dated 30.07.2010 regarding applicable date of post based roster for which DOP&T had issued instructions on 02.07.1997. This was clarified by DOP&T vide their letter dated 30/31.08.2010 that post based roster is to be applicable for vacancies occurring after 02.07.1997.
Respondents have, thereafter, issued an OM dated 13.10.2011 on the matter of implementation of the RRs in allocation of vacancies for promotee quota as well as for DR quota during the period 1997-2005 in JTS level of ISS. In these instructions, the post based roster issued vide DOP&T letter dated 02.07.1997 has been made applicable. The applicants have challenged this notification in the instant OA.
The applicants pleaded that the basic allocation of the number of posts for DR quota and promotee quota has remained unchanged at 60% of vacancies for DR quota and 40% of vacancies for promotee quota. The post based roster instructions, as have been notified by the DOP&T on 02.07.1997, are in respect of providing reservations and as such these are to be made applicable only after the respective allocation for DR quota and promotee quota has been done.
In the instant case, the applicant"s plead that this distinction has not been kept by the respondents which had led to reduction in the promotee quota and the applicants alleged that since the senior levels in the department are manned by the directly recruited officers, they are favouring DR officers at the cost of promotee quota. Following relief has been sought:
"To quash and set aside the impugned order dated 13.10.2011 passed by respondents thereby commanding the respondents to reconsider the case of the applicants in terms of DOPT advice dated 21.04.2010, for their antedating promotion in the Grade of JTS and STS in terms of rules which were in vogue before 2005 and in this regard appropriate steps of calculation of vacancies in DP and DR quota may be ordered to be taken.
To allow the original application with all consequential benefits.
Pass any order and further order which this Hon"ble Tribunal may deem fit and proper in the facts and circumstances of the case."
The respondents pleaded that some other applicants had also raised a similar issue in OA No.3346/2002, which was decided on 02.02.2006. The applicants had pleaded that year-wise vacancies are required to be worked out for the purpose of promotion. The Tribunal had considered the same and directed to prepare year-wise select panels for the period 1996 to 2003. While deciding the issue the Tribunal has made the following observations:
"26. In our considered view, while the DPC may be delayed due to the intricacies of the judicial system whereby right from Narender Chadha"s case (supra), the issue was settled only after holding DPC in 2001, i.e., for the yester years and also for the year 2003 yet the respondents, while calculating the vacancies, have not adhered to the resultant chain vacancies on account of retirement and promotion to higher grades, which had certainly prejudiced applicants" claim to be considered from the date of the accrual of vacancies in the year-wise panel on attainment of eligibility and by not extending the panel as per the procedure laid down ibid, their right for consideration has been affected. Though it is settled law that mere chances of promotion does not constitute a right but one has a right being fundamental to be considered for promotion.
In the matter of the policy of the Government and the administrative action, though statutory rules and supplementary govt, instructions, which do not override the statutory rules framed under Article 309 hold the field and should be inconsonance with the requirement of the Articles 14 & 16 of the Constitution as has been held by the Apex Court in State of Haryana & others vs. Piara singh, 1992 SCC (L&S) 825 and also in Kailash Chand Sharma vs. State of Rajasthan & others, 2002 AIR 2877.
The other contentions raised are not adjudicated for the present. Only on the above score, we find it difficult to reconcile with the justification and explanation tendered by the respondents as to calculation of vacancies in their two DPCs held in 2001 and 2003 though many of the applicants are promoted but still they have a right to be considered on re-calculation of vacancies in accordance with procedure and guidelines from retrospective date, which would also given them an opportunity to be further considered for higher post and in the wake of their approaching retirement on superannuation.
It is trite law that when a decision of the Government is not inconsonance with law, rules and instructions, the only direction can be issued is for re-consideration.
In the result, for the foregoing reasons, the OA stands disposed of with a direction to the respondents to re-examine the entire matter in the light of our observations and in furtherance to that, prepare year-wise select panel for the vacancies pertaining to the year 1996 to 2003 by holding review DPC, except those 28 vacancies filled up by an order dated 7.10.2003 and in that event, the claim of the applicants be also considered for promotion from an anterior date and in case of their fitness, they may be accorded all the consequential benefits. The applicants" promotion in the event is antedated would require consideration for further promotion to Grade III. The above-said exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No costs."
In compliance thereof, respondents had passed an order dated 12.05.2006 and concluded as under:
"9. It is reiterated that vacancies for the said years have been recalculated by the Ministry by going through the relevant records and found no discrepancy and as such, no review DPC is required. It is also worthwhile mentioning that officials included in the select panel(s) given by the UPSC for the year 1996-97 to 2001-02 have been placed appropriately in the seniority list of Junior Time Scale Officers (JTS) circulated vide OM dated 13.4.2001.
In view of above clarifications, the observations of the Hon"ble CAT have already been taken into account while reporting the vacancies to the UPSC and as such there is no need for holding review DPC."
It is seen that for applying post based roster, the respondents have decided to replace a directly recruited officer with another directly recruited officer and a promotee officer by another promotee officer.
The respondents also pleaded that a similar prayer was also made in OA No.3984/2011 wherein the applicants had made following prayers:
"a) To summon the records and set aside OM dated 13.10.2011 issued by Respondent No.1.
b) To fill up the vacancies arising prior to 14.09.2005 viz the promulgation of amended Recruitment Rules, in accordance with the Recruitment Rules which were in vogue prior to 14.09.2005, more specifically to fill the vacancies in accordance with Para 6 of the OM dated 31.3.2001 issued by Respondent No.1.
c) To hold DPC/Review DPC in accordance with law and to grant consequential relief of emoluments attached to the higher post with arrears.
d) To grant further consequential relief by way of further promotion to higher grade on completion of the requisite period of service, calculated with effect from the date the vacancy arose in the lower grade.
e) Pass any other and further order which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case."
The applicants had pleaded that year-wise DPCs should be held as per the number of posts contained in para 6 of respondents" OM dated 31.03.2010 (para 6 supra). This para shows distribution of vacancies in the ratio of 60% and 40% to DR and Promotee quota. The matter was considered by Tribunal and two issues were framed for adjudication:
"16. ...... In the result the grievances of the applicants before us are essentially two fold. Firstly, they have urged that there has been a glaring error in allocation and earmarking of "vacancies" in between the direct recruits and the departmental promotees in JTS Grade-IV of ISS from 1997 to 2005, inasmuch as the distribution of yearly "vacancies", which ought to have been allocated in the ratio of 60: 40 during the said years, has instead been allocated as per the "Post" Based Reservation Roster in the light of DOP&T instruction dated 02.07.1997, without appreciating the fact that that OM is applicable only to serve as a reservation roster for reservation of "posts" for SCs/STs and OBCs, and not for allocation of "vacancies" in between the promotes and direct recruits, and the second grievance is that this change was given effect to from 1997 to 2005, even before the formal amendment dated 14.09.2005 was brought about in the ISS Recruitment Rules."
After hearing the arguments, the Tribunal had further elaborated on the issues at hand as under:
"35. As mentioned earlier in para 16 above also, while discussing the submissions of the applicants, two issues fall for our consideration. Firstly, as to whether without any formal amendment in the ISS Recruitment Rules, which was brought about by the respondents only from 14.09.2005, without amending the statutory Rules, the respondents could have applied the law of the land as determined by the Hon"ble Apex Court in R.K. Sabharwal case (supra), following the ratio of which case instructions had been issued by the DOP&T through its OM dated 02.07.1997, and secondly whether it is possible that while for the purpose of reservation being provided for SCs/STs and OBCs, a "Post" Based Roster can be followed, a different concept of "vacancies" Based Roster can be followed for the purposes of maintenance of 60:40 ratio among the Direct Recruits and Promotees in the ISS cadre for the selections made year after year. A corollary of the second issue is as to whether a direct recruit can be recruited only when one direct recruit retires, or leaves the job, or is no more, or is no longer available, and whether a "post" vacated due to superannuation of a promotee can be filled up only by promoting a fresh promotee, and not by direct recruitment."
This OA was dismissed on 31.05.2012 wherein the Tribunal made following directions:
"39. Across the Board, in all the cadres of the Union of India, Public Sector Undertakings, Banks and Financial Institutions, the system so far followed is that the "vacant liens" available against the sanctioned cadre strength posts are identified at the beginning of the year, and then those "vacant lien slots" are notified as "vacancies" of "posts", for being filled up by direct recruitments and promotions in the prescribed quota. If, at the beginning of the year, 10 "vacant liens" are available in the sanctioned cadre strength of ISS Grade-IV, six slots of "vacant liens" would need to be filled up by direct recruitment, and four slots of "vacant liens" would be required to be filled up byaccording promotions from the eligible feeder cadres. This, to our mind, is the correct interpretation of the settled Law, as well as the Rules.
Therefore, the applicants cannot be allowed to plead that when a "vacancy" is created by the retirement on superannuation of a promotee, that "vacant lien" should be filled up only by a promotee, and cannot be counted as a "vacant lien" of a sanctioned cadre post. If there is a situation that the plea of the applicants is accepted, then there may not be any direct recruitments in ISS for many years at a stretch, and only promotions from the feeder cadres would take place, which cannot be the effect of either the statutory Rules or Regulations, or of the Law as laid down by the Hon"ble Apex Court.
Further, the contention of the applicants that the law of the land, as laid down by the Hon"ble Apex Court in R.K. Sabharwal case (supra), applies for a "Post" Based Roster being followed only for the purposes of reservation, and not for the purpose of maintenance of ratio among Direct Recruits and Promotees, cannot also be accepted. It would be impossible realistically, logically and administratively for two separate rosters of "Post" Based Roster for reservations being combined with a "Vacancy" Based Roster for distribution of quota for promotions/direct recruitments. The judgment in R.K. Sabharwal"s case (supra), as cited in the Paragraph-31 above, does not state it in so many words, but it appears to us that the ratio of the Hon"ble Apex Court"s judgment was that whether it may be reservation for SCs/STs and OBCs, or distribution of quota among Direct Recruitments and Promotees, the basis shall be only a "Post" Based Roster, and not a "Vacancy" Based Roster.
We bow our head before the wisdom of the Hon"ble Apex Court as interpreted and perceived by us, and hold that the respondents have not committed any mistake in having followed a "Post" Based Roster for filling up the "vacant liens" available to them from 1997 onwards.
As regards the second contention of the applicants that the respondents could not have done so from 1997 onwards by mere virtue of the directions issued by the DOP&T Circular, based upon the Hon"ble Apex Court"s findings in R.K. Sabharwal"s case (supra), and that they could have done so only from the date the ISS Recruitment Rules were actually amended in the year 2005, it appears to us that any such interpretation of the Recruitment Rules would run counter to the law of the land as laid down by the Hon"ble Apex Court. In a broader prospective, the law of the land would over-ride the notified Recruitment Rules, and whether or not the Recruitment Rules were formally amended, since the law of the land had been determined by the Hon"ble Apex Court in R.K. Sabharwal case (supra) in clear terms, and it had also been notified by the DOP&T through its OM dated 2.7.1997 for being followed through out the Government of India for all cadres, to that extent the provisions of the Recruitment Rules stood superseded automatically, even in the absence of a formal amendment having been brought, which the respondents have unfortunately unnecessarily delayed.
We have also seen that even in the decision in the previous OA No. 3346/2002 cited above, no directions were issued to the respondents contrary to the law of the land as laid down by the Honble Apex Court in R.K. Sabharwal case (supra), and, therefore, the respondents were fully within their rights to follow the "Post" Based Roster, both for the purposes of reservation for SCs/STs and OBCs, and for the purposes of distribution of vacancies between Direct Recruits and Promotees, which they have done from 1997 onwards.
In the result, the OA fails, but there shall be no order as to costs."
Thus, the Tribunal had upheld distribution of vacancies amongst DR and Promotee quota as per para 39 above. However, thereafter gave certain appreciation in para 40 and gave a direction in para 41 & 42.
This decision by Tribunal was challenged in High Court in WP (C) No.5029/2012. The matter was last heard on 25.02.2013 and it is advised that it is still pending.
In regard to the application of reservation principle, the applicants drew attention to a case decided by the Hon"ble Supreme Court in State of Punjab and others. vs. Dr. R.N.Bhatnagar and another, (1999) 2 SCC 330. The Hon"ble Apex Court had made the following observations:
"The respondent, at the relevant time when this controversy arose, was working as an Assistant Professor in the Department of Ophthalmology in the Government, Medical-College, Patiala. He was a promotee with effect from 20th June, 1984. Earlier be was working as Senior Lecturer from 6.8.1981. The question arose as to how the vacancy in the post of Professor of Ophthalmology was to be filled in on the retirement of one Dr. Shiv Inder Singh Rudra, Professor of Ophthalmology, with effect from 31.10.1996 The relevant rule governing such posts is Rule 9(i)(d) of the Punjab Medical College Education Service (Class-I) Rules, 1978 (hereinafter referred to as the Rules'). The said rule reads as under :
"(9) Method of Appointment : (d) In the case of Professors ;
(i) 75 percent posts by promotion from amongst the Additional Professors, or, where Additional Professors are not available, from amongst the Associate Professors, or, where Associate Professors are not available, from amongst the Assistant Professors, or by transfer of official already in the service of the Government of India, or the State Government;
(ii) 25 percent posts by direct recruitment;"
According to the appellant-State, as there were five posts in the cadre of Professors of Ophthalmology in the said college, on the basis of the aforesaid quota rule governing the recruitment in question, every three vacancies of Professors in the said cadre had to be filled in by departmental promotees while the fourth vacancy would be filled in by direct recruitment and thereafter succeeding vacancies to be filled in by promotees and direct recruits in the successive cycles of 3:1."
12.1. In this case, the Hon"ble Apex Court had made certain points for their determination. The same are reproduced as under:
"8. In the light of the aforesaid rival contentions, the following points arise for our determination :
(i) Whether the interpretation of Rule 9(i)(d), which appealed to the High Court, is a correct one;
(ii) Even if the roster operates on vacancies in such a way that from the very inception of the roster, vacancies on first three roster points will go to promotees and the vacancy on the fourth roster point will go to a direct recruit and similarly, in future for further vacancies, whether the disputed 16th vacancy should go to a direct recruit or a promotee;
(iii) If the answer to the first point is in negative, whether the ultimate decision of the High Court can be sustained on the conjoint reading of Rule 3 and Rule 9 (i) (d) of the statutory rules as submitted by learned counsel for the respondent; and
(iv) What final order?
We shall deal with the aforesaid points in the same sequence in which they are noted herein-above."
12.2. The Hon"ble Apex Court thereafter decided these questions as under:
"9. ....... It has, therefore, to be appreciated that when posts in a cadre are to be filled in from two sources whether the candidate comes from the source of departmental promotees or by way of direct recruitment once both of them enter a common cadre their birth marks disappear and they get completely integrated in the common cadre. This would be in consonance with the thrust of Article 16(1) of (he Constitution of India. No question of exception to the said general thrust of he constitutional provision would survive as Article 16 (4) would be out of picture in such a case. Consequently the decision rendered by the Constitution Bench in R.K. Sabharwal 's case (supra) in connection with Article 16(4) and the operation of roster for achieving the reservation of posts for SCs, STs and BCs as per the scheme of reservation cannot be pressed in service for the present scheme of Rule 9(1) is not as per Article .1.6(4) but is governed by the general sweep of Article 16(1). The attempt of learned counsel for the respondent to treat a quota rule as reservation rule would result in requiring the State authorities to continue the birth-marks of direct recruits and promotees even after they enter the common cadre through two separate entry points regulating their induction to the cadre. Therefore, the roster for 3 promotees and one direct recruit is to be continued every time a vacancy arises and there is no question of filling up a vacancy arising out of a retirement of a direct recruit by a direct recruit or on the retirement vacancy of a promotee by a promotee. Consequently, the question of rotating the vacancies as posts or for treating the posts mentioned in the rules of recruitment as necessarily referable to total posts in the cadre at a given point of time in the light of .R..K. Sabharwal's judgment (supra), therefore, cannot survive for in the case of a quota rule between direct recruits and promotees the same is to be judged on the touchstone of Article 16(1) and the statutory rules governing the recruitment to the posts of Professor constituting the Punjab Medical Education Service (Class-I) and not on the basis of Article 16(4). The Division Bench in the impugned judgment with respect wrongly applied the ratio of R.K. Sabharwal's case (supra) governing Article 16(4) to the facts of the present ease which are governed by Article 16(1).
Xxx xxx xxx
........ The aforesaid decision which squarely applies to the facts of the present case, therefore, leaves no room for doubt that when under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs or BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct recruit.
Xxx xxx xxx
It is to the effect that as and when vacancy arises in the concerned cadre of posts in any of the discipline first three future vacancies would go to departmental promotees and the fourth future vacancy would go to a direct recruit. Meaning thereby, even in the cadre of Professor of Forensic Medicine where only one post of Professor is for the first time to be filled in, it will go to a promotee and as and when such promotee retires or resigns or unfortunately dies in harness the second vacancy would also go to a promotee, similarly, the third one but the fourth vacancy would go to a direct recruit. That is how Rule 9 laying down quota and rota for monitoring recruitment from two sources of departmental promotees and direct recruits can work uniformly in all the departments for recruitment of Professors where the posts of Professor in the concerned cadres of departments may consist of a solitary post or two posts or more than two posts or may be five posts, as in the present case. This would result in a harmonious operation of Rule 4 and Rule 9 and no part of Rule 9 will be rendered otiose or truncated in such a case. It must, therefore, be held that reasoning adopted by the High Court in connection with the working of the aforesaid rule falls foul on the touchstone of Article 16(1) read with statutory scheme as envisaged by these rules. In the light of our aforesaid conclusion, it become obvious that the disputed 16m vacancy in the cadre of Professors of Ophthalmology consisting of five posts would necessarily go to direct recruit and not a departmental promotee as wrongly assumed by the High Court while allowing the writ petition."
The applicants had thus pleaded that as regards the number of direct recruits and the number of promotee quota officers to be promoted every year, the RRs prescribe 60% of vacancies for DR quota and 40% of the vacancies for promotee quota. This distribution has to be done first and the rules in respect of post based roster are to be applied subsequently to the respective quotas. This is important as for DR quota reservation principle is 15% for SC, 7.5% for ST and 27% for OBC, where as for Promotee quota reservation is applicable for SC and ST only. In the instant case, the respondents have intermixed the distribution of posts amongst DR and Promotee and reservation to each post and hence the grievance has been agitated in the instant OA.
Heard Mrs. Harvinder Oberoi, learned counsel for applicant and Dr. Ch. Shamsuddin Khan, learned counsel for respondents at length.
The allocation of DR quota and promotee quota was specified in the Service Rules issued in the year 1961 which specifies 60% for DR quota and 40% for promotee quota.
There has been no change in this quota till date. The amendments to the Service Rules made in the year 2005 enhanced the minimum qualifying service to 5 years as against 4 years earlier and for enforcement of post based roster in terms of DOP&T directions issued on 02.07.1997.
It is seen from the respondents" letter dated 31.03.2010 that the respondents were very well aware about the respective allocation of the posts to the two quotas as these details are contained in para 6 and 7 of their OM. Yet the promotions were done in an incorrect manner by misinterpreting the clarification by DOP&T (para 6 supra).
In the instant case, the applicants have sought quashing of the respondents" letter dated 13.10.2011 which was not sought in the earlier OAs. It is, however, noted that the relief sought pertains to the same aspect.
It is the considered view of this Tribunal that the decision given by the earlier bench in OA No.3984/2011, specifically in para 40, 41 & 42 of their judgment (para 11 supra) are not in the correct perspective of recruitment rules and application of post based roster policy as per the judgment in R.K.Sabharwal (supra). The judgment by the Tribunal in OA No.3984/2011 has since been challenged in the Hon"ble High Court where the matter was last heard on 25.02.2013 and is still pending at present. This Tribunal is of the considered view that the direct recruitment and promotions are required to be done as per the quota allocation in para 6 of respondents OM dated 31.03.2010, reproduced below:
"6. If we go by the existing Rule of ISS, the calculation of vacancies during this period would have as follows:
Items/ Years
1997-
1998
1999
2000
2001
2002
2003
2004
98
-99
-00
-01
-02
-03
-04
-05
Cadre
333$
316
316
316
316
275
275
275
Strength of
JTS
Total
154
59
82
55
31
78
12
78
vacancies
(137$)
DR (60%)
(137
35
49
33
19
47
7
47
to .6)
82
Promotee
55
24
33
22
12
31
5
31
(40%)
$ 17 posts were decreased due to reduction of Cadre Strength in JTS level from 333 to 316."
The yearly DR recruitments and promotions should have been done as per above allocations. The rules of post based reservation, which are to ensure caste based reservations, as issued vide DOP&T OM dated 02.07.1997, are to be applied only thereafter on the posts identified in respective years for the two streams as are shown in last two rows of above table, but separately for the two streams: DR and Promotee. Instead the respondents have made recruitment and promotions, on an incorrect application of Recruitment Rules and Post based roster, as per details shown in para 7 of their OM dated 31.03.2010, which is reproduced below:
Items/ Years
1997-98
1998-99
1999-00
2000-01
2001-02
2002-03
2003-04
2004-05
DR - Post based
50
50
50
50
25
22
--
22
Promotee - Post based
$13
$9
$32
$5
6
56*
12
56
*28 vacancies utilized for induction against earlier vacancy.
$ Utilized to adjust the excess officers belonging to General Category after implementation of the Post based reservation roster in terms DoP&Ts order dated 2.7.1997
It is the reduction in the promotee quota and corresponding increase in the DR quota which led to the grievance and the same has been ventilated in the instant OA.
It is in view of the foregoing that following issues needed to be considered by the Tribunal:
(a) Given the RRs of ISS dated 01.11.1961 and amended on 14.09.2005 where annual allocation of the DR quota and Promotee quota have remained unchanged to the extent of 60% of the annual vacancies for DR and remaining 40% of the vacancies are to be filled up by promotions for the years 1997-98 and onwards, whether this annual allocation to these two streams is to be made first before any caste based allocation as per Post based roster.
(b) Whether post based roster as per DOP&T OM dated 02.07.1997 is to be applied separately to the 60% DR quota and the 40% promotee quota for the respective allocation of vacancies starting from the year 1997-98.
As already brought out above, it is the considered view of this Bench that the answer to both these issues is in the affirmative and accordingly it is the table in para 6 of OM dated 31.03.2010 which is to be followed and not the table in para 7 (para 17 supra). The Om dated 13.10.2011, will also need to be set aside to this extent. However, since this is contrary to what the earlier bench had decided in OA No.3984/2011, Hon"ble Chairman, CAT may kindly consider constituting a Full Bench for consideration of the issue.