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Judgment
R.N. Singh, Member (J)
(Through Videeo Conferencing)
The present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have challenged the order dated 13.7.2021 (Annexure A/1) vide which the applicants claim for consideration for promotion to the post of Workshop Technician Grade I (hereinafter referred to as 'WT G-I') has been rejected on the ground that the applicants have not been considered due to non-availability of SC/ST vacancies. In this background, the applicants have prayed for the following reliefs:-
"a) Quash and set aside impugned order dated 13.07.2021 (Annexure-A-1).
b) Direct the respondents to consider the applicants for promotion to the post of Workshop Technician Grade I 'on merit' and promote them w.e.f. 23.06.2021 i.e. the date when others have been promoted.
c) Direct the respondent to accord all consequential benefits including monetary and seniority benefits.
d) Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant.
e) Award costs of the proceedings."
The brief facts leading to the present OA are that the applicants belong to SC category and have joined the services of the respondent on the posts of Workshop Assistant as direct recruits in April 2006, the applicants were considered and promoted to the post of WT G-II against unreserved posts by the respondent on 5.1.2012 (Annexure A/2). On completion of five years of service on the post of WT G-II, one becomes eligible for consideration for promotion to the post of WT G-I. One ST backlog vacancy and 03 unreserved vacancies in the post of WT G-I were available in the year 2020 and a DPC was constituted by the respondent to consider the eligible persons for promotion to such posts. However, the applicants could not be recommended due to non-availability of reserved posts in view of the provisions of Office Memorandum dated 15.06.2018 issued by the Department of Personnel and Training (hereinafter referred to as 'DoP&T').
Shri Luthra, learned counsel for the applicants has submitted that on completion of five years of service, the applicants became eligible to be considered for promotion to the next higher post of WT G-I in terms of the relevant Recruitment Rules (RRs) (Annexure A/3) and the applicants' names figured at serial nos.2 and 3 in the latest seniority list of feeder post, i.e., WT G-II (Annexure A/4). On 15.12.2020, a DPC was held and one Atul Shanker was considered and recommended for such promotional post of WT G-I. However, the applicants were not considered and promoted and, therefore, the applicant No.2 preferred a representation dated 6.7.2021 (Annexure A/7) for redressal of their grievances. However, vide impugned order dated 13.07.2021 (Annexure A/1), the same has been rejected on the premise of non-availability of reserved SC vacancies in terms of guidelines of DoP&T's OM dated 15.6.2018. Shri Luthra has argued that DoP&T's OM dated 15.6.2018 (Annexure A/8) has been issued for consideration of the promotion of reserved candidate(s) qua the unreserved point of vacancy on merit and the respondent have wrongly and illegally interpreted the same and has refused the rightful claim of the applicants for promotion to the post referred to hereinabove. Shri Luthra has further submitted that keeping in view the provisions of DoP&T's OM dated 15.6.2018, the law laid down by the Hon'ble Apex Court (five Judges) in the case of R.K. Sabharwal and others vs. State of Punjab and others, reported in (1995) 2 SCC 745, Govt. of India, DoP&T's OM dated 10.8.2010 (Annexure A/11) and the Order/Judgment of the Division Bench of this Tribunal dated 15.12.2020 in OA No.571/2019, titled Anita Rai Saxena vs. All India Institute of Medical Sciences, consisting one of us, namely, Hon'ble Shri R.N. Singh, Member (J), the impugned order is bad in the eyes of law and the applicants are entitled to be considered for promotion to the post of WT G-I even against unreserved vacancies on their' own merit'. He has further added that this Tribunal in identical facts and circumstances in OA No.571/2019 has already considered various judgments, relevant instructions on the subject and the said case has been against this very respondent. He has also argued that similar OA No.3347/2018, titled Bhupender Kumar and another vs. All India Institute of Medical Science and others, against this very official respondent, wherein the applicability of the Order/Judgment of this Tribunal passed in the case of Anita Rai Saxena (supra) was admitted by the respondents and this Tribunal has passed similar order(s)/direction(s) vide Order/Judgment dated 9.7.2021 (Annexure A/13) in the above mentioned OA.
Pursuant to notice from this Tribunal, the respondent has filed the counter affidavit. The factual matrix of the case, precisely noted hereinabove, has not been disputed by the respondents. Shri Swain, learned counsel for the respondents, has very fairly submitted that the issue raised in the present OA is squarely covered by the Order/Judgment of this Tribunal in the case of Anita Rai Saxena (supra) as well as Order/Judgment of this Tribunal dated 9.7.2021 in the case of Bhupender Kumari (supra). However, he has submitted that a few facts, particularly, asserted in the counter affidavit should be considered before passing any order in this matter, particularly, in view of the instructions received by him. In this regard, he has invited our attention to paras 3, 5. a. and 5. b. of the said counter affidavit. These paras 3, 5. a. and 5. b. of the counter affidavit read as under:-
"3. PRELIMINARY SUBMISSIONS:
That it is submitted that no advisory of any nature has been issued either by the Ministry of Health & Family Welfare (MoHFW) or Department of Personnel & Training (DoPT) directing or advising the Respondent institution (AIIMS) to change what AIIMS has been doing in the matters of promotion subsequent to Office Memorandum (OM) dated 15.06.2018. Therefore, the Respondent Institution continues to follow the directions contained in the Office Memorandum (OM) dated 15.06.2018, holding the Departmental Promotion Committee (DPC) and making promotions of reserved candidates to reserved candidates only."
"5. REPLY TO THE ORIGINAL APPLICATION:
a. THAT the Hon'ble Supreme Court in the case titled 'Jarnail Singh v UOI & Ors.' SLP No. -30621/2011 dated 17.05.2018 had held that,
"It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from 'reserved to reserved' and 'unreserved to unreserved' and also in the matter of promotion on merits."
b. THAT it is submitted that the Respondent Institution (AIIMS) had accordingly started holding Departmental Promotion Committee (DPC) as per directions, contained in the Office Memorandum (OM). Reserved category candidates were accordingly being promoted against available vacant reserved category posts in all DPCs including in cases of merit also. These promotions which are made are conditional and are subject to the outcome of the Special Leave Petition (SLP) pending before the Hon'ble Supreme Court of India in SLP (C) No. - 30621/2011 and as per the further clarifications of Department of Personnel & Training (DoPT)."
Rejoinder has been filed on behalf of the applicants and the applicants have reiterated the very facts and grounds as pleaded and argued in the OA and precisely noted hereinabove.
We have heard the learned counsels of the parties. We are not separately reproducing what has been held in R.K. Sabharwal (supra) and in the Judgment dated 17.5.2018 in Jarnail Singh (supra) by the Hon'ble Supreme Court, only for the sake of brevity in as much as against the same respondent, the same alongwith various other Orders/Judgments, OM on the issue, have already been considered by this Tribunal in Anita Rai Saxena (supra) at length and after detailed consideration, this Tribunal in Anita Rai Saxena (supra) ordered as under:-
"17. The respondents have referred the issue of promotion of applicant, for clarification to DoPT as well as Ministry of Health & Family Welfare, who in turn have also consulted Ministry of Law & Justice for clarity. They had clarified to act as per DoPT directives. The DoPT directives were issued on 11.07.2002, 31.01.2005, 10.08.2010 and 15.06.2018 (para-8 supra).
In none of these directives there is any prohibition that a reserved category candidate cannot be promoted in his/her turn on merit for a vacancy which may be earmarked for unreserved category.
Therefore, while an unreserved category candidate can be promoted against an unreserved vacancy only, a reserved category candidate can be promoted to a reserved vacancy as per reservation as well as he/she can be considered for promotion against an unreserved vacancy if he/she happens to be the next candidate in line for promotion on merit.
In view of the foregoing, there is merit in the OA and it needs to be allowed. Accordingly, OA is allowed.
The respondents are directed to consider the applicant for the vacant post of Hindi Officer by constituting a review DPC. In case she is found fit for promotion, she shall be granted promotion from the same date her juniors were promoted, and she shall also be granted pay fixation at par with her juniors, who were promoted vide orders dated 29.01.2019. The due arrears shall also be paid.
This entire exercise shall be completed by the respondents within a period of 08 weeks from the date of receipt of a certified copy of this order. No costs.
Pending MA also stands disposed of."
When an identical issue was raised before another Division Bench of this Tribunal in OA No.3347/2018, in which the official respondents were the same, i.e., All India Institute of Medical Sciences and after notice to the respondents therein, it was accepted on behalf of the respondents that the claim of the applicants therein, namely, Bhupender Singh and Smt. Shashi Prabha, is covered by this Tribunal's decision in the case of Anita Rai Saxena (supra) and this Tribunal allowed the said OA (OA 3347/2018) vide Order/Judgment dated 09.07.2021 (Annexure A/13), paras 4 and 5 thereof read as under:-
"4. In view of the aforesaid admitted facts, the present OA is also disposed of in terms of the order/judgment dated 15.12.2020 in OA No.571/2019.
The OA stands disposed of accordingly. No order as to costs."
In view of the aforesaid facts, discussions and admitted position, the present OA is disposed of with the following directions:-
(i) The respondents are directed to constitute a DPC for considering the cases of the applicants for promotion to the vacant posts of WT G-I. In case, the applicants are found fit for such promotion, they shall be granted promotion from the date on which the other eligible person, namely, Atul Shanker was promoted to the said post. The applicants shall be granted pay fixation at par with the said Shri Atul Shanker. Due and admissible arrears shall also be paid to the applicants; &
(ii) The above exercise shall be completed within a period of six weeks from the date of receipt of a copy of this Order.
However, in the facts and circumstances of the case, there shall be no order as to cost.