V. Raghuwaiya and Another vs Union of India and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 16.09.2009, whereby the original application of the petitioners for grant of seniority with effect from the back date i.e. on the respondent No. 3 was promoted, was rejected by the Central Administrative Tribunal, (for short `the CAT'') Jabalpur Bench, Jabalpur.

The facts, in brief, are that petitioner No. 1 and 2 were appointed on 21.12.1988 and 22.08.1988 respectively on the post of Inspector, Central Excise. In the seniority list, the name of the petitioners was shown at serial No. 310 and 131 respectively, and the name of the respondent No. 3 was shown at serial No. 314. According to the petitioner, the criteria for promotion to the post of Superintendent, Central Excise, (for short `SCE'') was seniority-cum-fitness. A Departmental Promotion Committee (for short `the DPC'') meeting was held in the year 2002 and thereafter, a review DPC meeting was held on 10.04.2003,wherein the respondent No. 3, being the junior, was promoted to the post of SCE. The petitioners could not be promoted and as such, they were superceded. Thereafter, the petitioners were promoted on 15.10.007 and 16.09.2009, respectively. Being aggrieved, the petitioners preferred an original application before the CAT on the sole ground that the petitioners belong to scheduled tribe category and there should be some liberalized attitude in case of SC/ST candidates, relying on O.M. No.36012/23/96-Estt. (Res) Vol.II, dated 03.10.2000 (Annexure P/6).

Shri Pradhan, Learned Counsel appearing for the petitioners would submit that in case of SC/ST candidates, there must be lower qualifying marks and lower standard of valuation for promotion. Relying on the circular dated 11.07.1968 (Annexure P/5), he would further submit that as per the extant rule/instruction for reservation to the SC/ST employee in promotion there is a specific provision that if an SC/ST employee has been categorized by the committee on the basis of his record of service as "good", then he should be re- categorized by the committee as "very good". Likewise, if the SC/ST employee is graded as "very good" on the basis of record of his service, he will be re- categorized as "outstanding" by the committee. Shri Pradhan would next contend that the criteria fixed vide memo dated 11.07.1968 was withdrawn by the Supreme Court in case of Vinod Kumar v. Union of India1 and the same was restored by the Parliament in its Constitution (Eighty-second Amendment) Act, 2000, thus, the instructions contained in memo dated 03.10.2000 (Annexure P/6) of the Department of Personnel & Training, whereby it was observed that for the candidates belonging to SC/ST category, their assessment should be made by the lower qualifying marks, lesser standard of evaluation by the DPC. It made effective from 03.10.2000. It is next contended that the Tribunal has not considered the above stated facts that the lower benchmark was not fixed for the petitioners who belong to reserved category. It is further submitted that since the petitioners were not communicated the adverse remarks in the past, thus, it is presumed that the petitioners have been awarded good marks and they were fit for promotion to the higher post.

On the other hand, Shri Kinger, Learned Counsel appearing for the respondent No. 1 and 2 submits that the DPC and review DPC has adopted the bench mark as "good" for promotion. The DPC has considered the ACRs for the years 1996-1997 to 2001-2002. The petitioners had got "just adequate" remarks in their ACRs for the year 1998-99 and 1999-2000. The case of the petitioner No. 1 was considered by the DPC on 29.03.2001, 20.08.2001 and 12.09.2002. At the time of first two DPCs a disciplinary case was pending against the petitioner No. 1 hence the DPC findings were kept in a sealed cover. After the departmental case was closed, the sealed cover was open in the meeting of DPC held on 12.09.2002, wherein it was found that the petitioner was found "not yet fit/"unfit". Shri Kinger further submits that the instructions of O.M. No.36012/23/96-Estt. (Res) Vol.II, dated 03.10.2000 (Annexure P/6) were strictly adhered to as in case of general candidates, the benchmark was that the four ACRs should be `good'' out of five years ACRs and in case of reserved category candidates, the requirement was to have three "good" in preceeding five years.

Heard Learned Counsel appearing for the parties, perused the pleadings and documents appended thereto.

Reliance of the petitioners on the circular dated 11.07.1968 (Annexure P/5) is not relevant as according to the petitioners, the same was withdrawn with was subsequently restored and thereafter, by memo dated 03.10.2000 (Annexure P/6) it was decided to fix the benchmark for reserved candidates having lesser qualification wherein it is provided that there should be relaxation by way of lower qualifying marks for promotion.

We have perused the minutes of the review DPC held on 10.04.2003 (Annexure P/8). On perusal of the minutes of the said review DPC, it is evident that the has adopted the following criteria:

This review DPC followed the same selection criteria as followed by the DPC held on 24.12.2002. Accordingly, the criteria adopted by this review DPC for benchmark `Good'' was taken as at least 4 ACRs out of ACRs of preceding 5 years i.e. 1997-98 to 2001-2002 should be good and there should not be any adverse report for General Category candidates. For SC/ST category candidates, the DPC followed the relaxed selection criteria for the Benchmark "Good" as at least 3 ACRS out of ACRs of preceding 5 years i.e. 1997-98 to 2001-2002 should be `good'' and there should not be any adverse report.

Thus, contention of the petitioners that lower qualification was not prescribed for reserved category candidates, is without any basis. Needless to mention that the criteria is not seniority alone, but seniority cum-fitness. Thus, case of seniors who were not found fit or suitable, may be ignored, as compared with the junior, who is more suitable and fit for promotion to the higher post. The CAT had examined the case at length and has considered all the legal provisions carefully before coming to the conclusion as under:

7.The DPC considered the officers in the zone of consideration for promotion to 17 vacant posts reserved for SC candidates and 12 vacant posts reserved for ST candidates. The DPC gave its own grading to the candidates. It graded applicants 1 & 2 as "unfit" and the respondent No. 3 as "Good". We have noted that all the 34 officers so considered belonged to SC/ST category. We have also noted that both the applicants as well as respondent No. 3 belong to ST category. This is not the case of an officer belonging to reserved category being pitted against an officer belonging to non-reserved category.

The decision of the Supreme Court in Dev Dutt v. Union of India & Others2, relied on by the Learned Counsel for the petitioners, is not applicable to the facts of the case as this is not the grievance of the petitioners that they were not communicated the adverse entries which has gone against them, as the Tribunal has held that the DPC has considered as many as 34 officers belonging to the SC/ST category and out of them, only the respondent No. 3 was found more suitable. Thus, relying on the criteria of seniority-cum-fitness, the respondent No. 3 was found fit for promotion.

Thus, we have not found any perversity, irregularity or illegality in the impugned order dated 16.09.2009 (Annexure P/1) passed by the CAT, warranting interference.

Accordingly, the writ petition is dismissed. There shall be no order asto costs.