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Judgment
Instant petition is directed against order of the Central Administrative Tribunal Dt. 7.2.2005.
Brief facts of the case relevant for examining the controversy raised in the instant petition are that pursuant to notification Dt. 29.11.1999, D.R.M. (E) Ajmer vide letter Dt. 3.12.1999, notified 27 vacancies of Assistant Engineers (AENs) Group-B Civil Engineering Department to be filled on the basis of Limited Departmental Competitive Examination (LDCE). Out of 27 vacancies notified, 4 were reserved for SC, 2 for ST and 21 for general category. Under the Scheme of Rules, 30% of vacancies for promotion to Group-B post to be filled on the basis of LDCE.
In response to notification Dt. 29.11.1999, the petitioner who was working in Group C category submitted his application and selection was to be made on the basis of written examination followed with viva voce test. The petitioner was declared qualified in written test held on 4.3.2000. The selected candidates were called for viva voce. On the basis of their performance of written examination and viva voce and also on the basis of record of service, a panel was prepared, however, name of the petitioner was not included in the panel Dt. 18.7.2000.
At this stage, the petitioner submitted his representation and also sent reminders and his grievance was that his name appears to have not included in the panel probably on the ground that sufficient SC quota has been achieved, but, at the same time, since no ST candidate has been placed in the panel and in terms of Railway Board''s letter Dt. 10.6.1977, exchange in the same year is permissible and it was requested that his case may be considered against vacancy reserved for ST in exchange between SC and ST vacancies in terms of para 9 of the Railway Board Circular Dt. 21.8.1997.
It is further stated that there was deficiency of SC and ST category as requisite number of candidates of these categories were not filled in the year 1995, 1996 and 1998. The total deficiencies were 9, out of which 5 posts have to be filled from SC and 4 from ST category and if adequate number of SC and ST are not being available in a particular year these posts can be exchanged between the candidates of SC and ST and vice versa within the same year of recruitment itself as per Railway Board''s letter Dt. 21.8.1997 and thus prayed that his name may be included in the panel against the vacancy available for ST category and be considered for appointment.
After reply came to be filed by the respondent, ld. Tribunal was of the view that the Circular Dt. 21.8.1997 on which reliance has been placed may not of any assistance to the petitioner since it confines to Group C and Group D post and as regard the present post is concerned, it is of Group B category. However, on the merit on the issue, the ld. Tribunal was of the view that if exchange in reservation between SC and ST is permitted, the number of employees of one reserved category of employees appointed by reservation will be in excess to the reservation prescribed for that category, which would be against the spirit and after introduction of post based reservation, it is not permissible to fill up the post reserved for ST by SC candidate or vice versa on exchange of reservation between ST and SC keeping in view the ratio decided in the judgment of Hon''ble Supreme Court in the case of R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 : (1995) 70 FLR 985 : (1995) 2 JT 351 : (1995) LabIC 1618 : (1995) 1 SCALE 685 : (1995) 2 SCC 745 : (1995) 2 SCR 35 : (1995) 3 SLJ 227 and Union of India and others etc. Vs. Virpal Singh Chauhan etc., AIR 1996 SC 448 : AIR 1995 SC 448 : (1995) 7 JT 231 : (1995) 6 SCC 684 : (1995) 4 SCR 158 Supp and dismissed the OA under order impugned.
Main thrust of submission of counsel for the petitioner is that once there is a scheme introduced by the Railway Board vide its Circular Dt. 21.8.1997 and para 9 in particular where exchange between SC and ST in 3rd recruitment year of carry forward is permissible, its consequence may not be open to be examined by the Tribunal and what is being expressed by the Tribunal on the pretext that it is post based reservation and if exchange is made permissible it may exceed the percentage of reservation for SC and ST in respective quota and was not open for Tribunal to examine unless the validity of Circular being questioned in the appropriate proceedings.
Counsel further submits that indisputably against two vacancies notified for ST, no member from ST was available and the petitioner being the member of SC and is entitled to be considered from ST vacancies on account of non availability of members of ST in LDCE quota and submits that what is being observed by the Tribunal under order impugned is not be sustainable and deserves to be quashed and set aside.
We find from the record that this Court after taking note of submission made, directed the respondent authority vide its order Dt. 9.2.2012 to submit factual data with reference to position of candidates who appeared in the various categories such as General, and in particular SC/ST with reference to circular Ann. 4 at page 40 dt. 21.8.1997 and also indicate as to whether circular was followed while filling vacancies on the basis of the examination conducted for promotion to the post of Assistant Engineer (Group B). In compliance thereof, affidavit has been filed by the respondent in which it was stated that Railway Board''s letter Dt. 21.8.1997 referred to therein is regarding reservation aspect for promotion in Group C and Group D categories and has no application for Group B selection and therefore it was not followed.
It was further stated that there is no provision of carry forward SC/ST vacancies but short fall of SC/ST reflected at the time of assessment are taken into consideration and also placed on record a letter Dt. 6.9.2002 in reference to Railway Board letter Dt. 21.8.1997 with regard to instructions in adopting post based roster in Group C and D posts of promotion category. Some doubts have been raised whether post based roster should be followed for promotion from Group C to Group B and within Group B and in this regard it was clarified by the Railway Board that since the matter is under consideration and until final decision is being taken by the Board, the existing instruction presently being followed will continue to be followed for promotion to this Group till further orders.
Indisputably, the Railway Board Circular Dt. 21.8.1997 confined to the process to be followed for promotion to Group C and Group D post and sub para 9 of the circular relied upon confines for exchange between SC and ST after 3rd year of carry forward vacancies of Group C and Group D and as regard Group B is concerned it was made clear as per Ministry of Railways, Govt. of India vide letter Dt. 6.9.2002 of the Railway Board on query being raised in regard to applicability for promotion from Group C to Group B and within Group B category that it may continue with the existing procedure to follow for promotion to Group B till further orders meaning thereby the process and the promotion roster for the post and promotion as regard Group C to Group B and within Group B will continue as it was in vogue and at least Board letter Dt. 21.8.1997 may not be applicable for promotion in Group B category.
Counsel for respondent submits that in the light of clarification which has been submitted pursuant to affidavit at least one fact is clear that the post of Group B is to be filled in terms of circular applicable and was in vogue and the circular which has been relied upon by the petitioner Dt. 21.8.1997 is not applicable for the present petitioner which is indisputably the post of group B category and submits that the Tribunal has considered the matter at length, under order impugned and many not require interference by this Court.
We have heard counsel for the parties and with their assistance perused the material available on record.
It is not disputed that the post of Assistant Engineer is of Group B category and as per the Scheme of Rules 70% posts are to be filled by regular method of recruitment and 30% posts by LDCE and the process which was initiated by the respondent pursuant to its notification Dt. 29.11.1999 read with order Dt. 3.12.199, in all 27 vacancies were reserved out of which 4 were reserved for SC, 2 for ST and 21 for General. The present petitioner who is member of SC was not empaneled and as all the four vacancies of SC remains filled by the persons who were higher in seniority/merit, his claim was confined to fill by exchange of vacancies from ST to SC and for his empanelment against the ST vacancy which remain unfilled in the process initiated pursuant to notification 29.11.1999.
The submission of the petitioner with regard to invoking exchange of vacancies from ST to SC and vice versa be made applicable for promotion in Group B category on the strength of circular Dt. 21.8.1997 is without substance for the reason that very intent of the circular relied upon by the petitioner of Railway Board Dt. 21.8.1997 confines to promotion to the cadre of Group C and Group D and no reference has been made with regard to promotion from Group C to Group B or within Group B category vacancies.
The extract of Board letter Dt. 21.8.1997, relevant for present purpose is reproduced ad-infra-
"Sub:- Reservation rosters - posts based - Group ''C and ''D'' posts of promotion category - Implementation of the Supreme Court''s Judgment of R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 : (1995) 70 FLR 985 : (1995) 2 JT 351 : (1995) LabIC 1618 : (1995) 1 SCALE 685 : (1995) 2 SCC 745 : (1995) 2 SCR 35 : (1995) 3 SLJ 227 , Union of India v. Virpal Singh Chauhan ( AIR 1996 - SC 42 and Union of India v. J.C. Malik.)
9- Post reserved for SC/ST should not be de-reserved and should be carried forward as per extent rules. The reserved posts may also continue to be exchanged between SCs and STs in the 3rd year of carry forward as per extent orders. Thus, there may be a situation where a SC may be occupying a post earmarked for STs and vice versa then such a situation will arise, the combined reservation shall not exceed more than 22.5%. However, whenever either Scheduled Caste(s)/Scheduled Tribe(s) is/are occupying post(s) meant for the STs or SCs as the case may be, the possibility of filling up of the post by SCs or STs as the case may be, at the earliest opportunity against a subsequent reserved post may be kept ion view".
Para 9 of the Railway Board letter Dt. 21.8.1997 on which reliance has been placed by the petitioner may not be of any assistance to him and this fact was clarified by the respondent after filing of affidavit pursuant to direction of the Court that circular has not been invoked by railway board Dt. 21.8.1997 while promotion were made under LDCE quota for group B category post and we too find substance that railway board circular Dt. 21.8.1997 is in relation to promotion for Group C and Group D cadre and it cannot be invoked by implication in Group B cadre against LDCE quota and this what the Tribunal also observed while passing order impugned.
However, the ld. Tribunal further observed that if exchange is made permissible that may exceed number of total vacancies available in the cadre of SC and ST respectively but once we have arrived to the conclusion that circular Dt. 21.8.1997 has no application for exchange from SC to ST and vice versa for Group B the question itself may not emerge for consideration in the facts and circumstances of the instant case. At the same time, in the affidavit which has been filed by the respondent pursuant to direction of the Court, a letter has been placed on record to justify that certain doubts were expressed as to whether post based roster should be followed for promotion from Group C to Group B and within Group B in terms of Railway Board circular Dt. 21.8.1997 vide its letter Dt. 6.9.2002 and in this regard it was clarified by the Railway Board that since the matter is under consideration and final decision is likely to take some time, directing the authority to continue the existing instruction to be followed for promotion to Group B until further orders of the Board and this letter has been sent by the Ministry of Railway which has been placed on record along with its letter Dt. 2.5.2012.
The judgment on which reliance has been placed by the petitioner of Supreme Court reported in Malkhan Singh Vs. Union of India and others, AIR 1997 SC 538 : AIR 1997 SC 465 : (1997) 75 FLR 786 : (1997) 1 JT 363 : (1997) 1 SCALE 132 : (1997) 2 SCC 33 : (1997) SCC(L&S) 315 : (1997) 1 SCR 64 : (1997) 1 Supreme 283 : (1997) AIRSCW 378 may not of any assistance as there was specific provision under the scheme of rules where exchange from SC to ST and vice versa was permissible, however, in the instant case, neither any circular nor any scheme has been brought to our notice which provide exchange of vacancies from SC to ST and vice versa in reference to promotion in Group B category and we have already observed that the circular on which reliance has been placed Dt. 21.8.1997 is not applicable for promotion to Group B vacancies and cannot apply by implication and this what the respondent in their affidavit filed pursuant to direction of the Court has made a clarification and also stated that the circular has not been invoked while the process of promotion to Group B category post having inducted pursuant to vacancy notified Dt. 29.11.1999.
The question which the respondent must consider that the Board has to take decision either way and to continue the existing scheme until decision of the Board impugned vide letter Dt. 6.9.2002, after almost 13 years have rolled by, it is expected from the Railway Board to take decision at the earliest possible to avoid further litigation.
We do not find any error in the order of Tribunal which may require interference.
Consequently, the writ petition is devoid of merit and accordingly dismissed.