Union of India and Others vs Central Administrative Tribunal and Others

At the request and with the consent of learned counsel for the contesting parties, we have considered this matter finally at this stage itself.

After having heard the learned counsel for the parties and having perused the material placed on record with reference to the law applicable, we have formed an opinion that the matter deserves to be remanded for consideration afresh by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (''CAT''). As the matter is proposed to be remanded for consideration afresh, we do not propose to dilate much on all the factual and legal issues involved in the matter. Only a brief reference to the background aspects would suffice.

The respondent No. 2 of this writ petition (the applicant), Shri Jag Ram Meena, was initially appointed as Traffic Apprentice and after successful completion of the requisite training, he came to be posted as Sectional Controller in Allahabad Division of Northern Railway in the year 1993. He was transferred on mutual exchange basis to Jodhpur on 19.06.1994. He was accorded next promotion to the post of Deputy Chief Controller with effect from 17.11.1995 in the pay scale of Rs. 2000-3200. The respondent No. 3 of this writ petition was also promoted as Deputy Chief Controller on 17.11.1995.

The petitioners issued a Restructuring Scheme of certain Group C & D cadre including that of the Controllers under the Circular dated 28.10.2003. This Scheme was made effective from 01.11.2003 resulting in increase of cadre strength of Chief Controller from 9 to 12; and after superannuation of one incumbent on 30.06.2004, the number of persons on the roll of Chief Controller was 8 as against the cadre strength of 12.

It appears that in the seniority list of the central office, as issued on 18.08.2000, the seniority position of the incumbents on the post of Deputy Chief Controller was also shown wherein, the present respondent No. 3 was placed above the respondent No. 2. However, a combined seniority list at zonal level was issued on 16.07.2004 wherein the name of respondent No. 2 was shown at serial No. 140 whereas the name of respondent No. 3 was shown at serial No. 141.

The applicant (respondent No. 2) made a representation on 02.08.2004 stating that as per the combined seniority list dated 16.07.2004, he was senior to the respondent No. 3. The applicant (respondent No. 2) stated the grievance against non-inclusion of his name in the panel for promotion to the post of Chief Controller under the Re-structuring Scheme whereas name of the respondent No. 3 had been included. It was also submitted that the present petitioners were seeking to fill up two vacancies on the post of Chief Controller and one vacancy was being left out for the reserved category candidate. The applicant (respondent No. 2) asserted that there was no justification for leaving such a vacancy for reserved category candidate while contending that reservation was not applicable in the Re-structuring Scheme. The applicant (respondent No. 2) failing to get the desired relief, filed the OA (No. 203/2004), which has been considered and decided by the CAT by the impugned order dated 28.11.2006.

On the issue as regards inter-se seniority, the CAT noticed that this aspect was not seriously contested; that in the last seniority list for the post of Deputy Chief Controller, as issued on 18.08.2000, the respondent No. 3 was shown senior to the respondent No. 2; and that the seniority list at zonal level was prepared as per the initial grade seniority ignoring the changes in such seniority due to other events like mutual exchange transfers. The CAT found that the applicant (respondent No. 2) was not senior to the respondent No. 3 and rejected this claim of the applicant.

On the principal issue raised in the OA regarding application of reservation roster as per Para 14 of the Re-structuring Scheme; and as to whether the third post was meant for SC Category and the applicant was not entitled for the same, the CAT referred to the decision of its co-ordinate Bench in OA No. 745/2005: Ram Sewak & Anr. Vs. UOI etc., decided on 23.08.2005. The CAT took note of the fact that the matter was pending consideration before the Hon''ble Apex Court but while following the decision of its co-ordinate Bench as also the decision of Hon''ble Punjab & Haryana High Court, found that Clause 14 of the Re-structuring Scheme providing for such reservation had been declared ultra vires. The CAT also took note of the observations in paragraph-23 of the order passed in Ram Sewak''s case that on a final decision by the Apex Court, the law will take its own course. The CAT proceeded to allow the OA filed by the present respondent No. 2 while holding that the action of the present petitioners in keeping one post of Chief Controller reserved under Para 14 of the Re-structuring Scheme was not correct. The CAT, accordingly, directed the present petitioners to consider the case of the applicant (respondent No. 2) against the third vacancy that became available in pursuance of the Re-structuring Scheme for the post of Chief Controller in the pay scale of Rs. 7450 - 11500. The CAT, however, ordered that paragraph-23 of the decision in the case of Ram Sewak would be applicable to this case too, that is to say that the decision of Hon''ble Apex Court would have its own application to the present case.

This writ petition against the order so passed by the CAT was entertained for consideration on 19.07.2007 and by way of interim order, the operation and implementation of the impugned order of the CAT was stayed.

It is rather an indisputable position that after filing of this writ petition, the matter in issue was finally considered and decided by the Hon''ble Apex Court on 29.07.2008 in the case of Union of India (UOI) Vs. Pushpa Rani and Others, . Therein, the Hon''ble Apex Court, inter alia, held that the directions for making appointments de hors the policy of reservation in the re-structuring exercise were legally unsustainable in the following:--

"59. An analysis of orders passed by the Tribunals and this Court shows that all cases except that of K. Manickaraj case involved upgradation of large number of posts which could be filled by placing the existing incumbents in the higher grade without subjecting them to the process of selection. Different Benches of the Tribunal referred to the policy decision taken by the Railway Board that reservation policy for Scheduled Castes and Scheduled Tribes is not applicable where cadre restructuring results in mass upgradation of posts and held that the administration was required to make appointment/placement against the upgraded posts without reserving posts for Scheduled Castes and Scheduled Tribes. This Court repeatedly emphasized that the restructuring exercise did not result in creation of new posts/additional posts which could be filled by promotion by following the procedure of selection. Therefore, these decisions are of no help to the cause of the respondents. At the cost of repetition, we consider it necessary to emphasize that restructuring exercise envisaged in Letter dated 9-10-2003 resulted in creation of additional posts in most of the cadres covered by the policy and the Government had taken a conscious decision to fill up such posts by promotion from amongst eligible and suitable employees and the promotees were burdened with duties and responsibilities of greater importance. Therefore, the Tribunal and the High Court were not justified in treating it as a case of upgradation of posts simplicitor. Consequently, the decision of the Tribunal to quash Para 14 of Letter dated 9-10-2003 and direction given for making appointments dehors the policy of reservation are legally unsustainable."

In view of the law declared by the Hon''ble Supreme Court, the propositions on which the CAT proceeded and passed the impugned order dated 28.11.2006 cannot be considered sound or sustainable. However, when it is noticed that the CAT had merely followed another decision in Ram Sewak''s case and kept the matter subject to the decision of the Hon''ble Apex Court; and now, when the decision of the Hon''ble Apex Court is available, all the factual and legal aspects, in our view, deserve to be re-considered by CAT for taking a final considered decision in the OA filed by the present respondent No. 2. Hence, the matter deserves to be remanded for consideration afresh by CAT.

Accordingly, and in view of the above, this writ petition is allowed to the extent and in the manner indicated. The impugned order dated 28.11.2006 is set aside. OA No. 203/2004 shall stand revived for consideration afresh by CAT. The parties present in the Court i.e., the writ-petitioners, who are the respondents Nos. 1 to 3 in the OA; as also the respondent No. 2, who is the applicant in the OA, shall stand at notice to appear before CAT on 23.04.2014. No costs.