Andhra Pradesh High Court - Amravati
The Senior Divisional Personnel ... vs K.Subba Ramudu, Guntakal, 4 ... on 31 March, 2023
Bench: M.Ganga Rao, Ravi Cheemalapati
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W.P.No.26643 of 2008
1
HON'BLE SRI JUSTICE M. GANGA RAO
&
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION No. 26643 of 2008
ORDER: (Per Hon'ble Sri Justice M.Ganga Rao)
This writ petition has been filed by the petitioner for the following
relief:
"to issue a writ, order or direction more particularly one in the nature of
Certiorari by calling for the order dated 30.07.2008 in O.A.No.482 of 2006
on the file of Central Administrative Tribunal, Hyderabad Bench and
declare the same as illegal, arbitrary, capricious and unconstitutional ...."
2. The case of the petitioner, in brief, is that, the Senior Divisional
Personnel Officer, Guntakal issued notification dated 04.07.2005 for
selection to the post of Junior Engineer-II proposing to fill up five (05)
vacancies (Unreserved-4, SC-01, ST-0) calling for applications from the
eligible candidates from the serving employees of Mechanical Wing
including Ancillary Staff and working at Trouble Shooting points, who
possess qualification of Degree or Diploma in the relevant branch of
Engineering for induction as Intermediate apprentice along with those with
ITI/ACT apprentice or 10+2 with science stream and who have completed
three (03) years of satisfactory service in the grade of skilled Artisans of
Rs.3050-4590 and above, as on 01.05.2005. Out of the applications
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received, 67 applicants including the respondents were found eligible to be
called for selection. A written examination was held on 23.10.2005 and the
respondents have attended for the written examination. As per the terms
of Serial Circular No.41/87 of CPO/SC Railways and another reference
No.P(R)605/IX, dated 13.02.2004; for Written examination; Personality,
Address, Leadership, Qualification etc., and Record Services are 70, 15 and
15 marks respectively were prescribed and the candidates must secure
60% in written examination and 60% in aggregate and the panel is to be
drawn according to the seniority from amongst the qualified staff and no
seniority marks are to be allotted for unqualified candidates.
It is the further case of the petitioner that, in terms of Railway Board
Letter No. 99 E(SSCT)1/25/13, dated 29.06.2003, in respect of selection
post, the Scheduled Caste and Scheduled Tribes candidates, who are
selected by applying general standards and whose names in the selection
list appear within the number of un-reserved vacancies are to be treated
as selected on their own merit. As per the above instructions, the 2nd
respondent- P.Balaiah, though belongs to Schedule Caste, since he has
secured marks in general standard on own merit, was treated as qualified
against unreserved vacancy on own merit and hence he was treated as un-
reserved candidate. In view of the same, the contention of the 1st
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respondent that P.Balaiah, who belongs to SC community, could have been
accommodated against the vacancy reserved for SC community is not
correct. The vacancy reserved for SC candidate could not be filled up due
to non-availability of qualified SC candidate in the written test to be
considered against the reserved vacancy.
It is the further case of the petitioner that, the contention of the 1 st
respondent that the criteria is only the written examination for
empanelment is not correct. As per the instructions contained vide Chief
Personnel Officer's letter dated 13.02.2004, no seniority marks would be
allotted. There is no provision that the selection should be finalized based
on the written examination alone. As per the instructions contained in
letter dated 13.02.2004 and S.C.No.41/87, the panel was drawn according
to the seniority from amongst the qualified staff, who had secured 60% in
written examination and 60% in aggregate.
It is the further case of the petitioner that, as per the Railway
Board's letter No.99E/(SCT), dated 29.06.2003 , an SC/ST employee who
secures marks and come in General standards and come up in normal
seniority would be treated as un-reserved candidate and accordingly the
panel has been drawn. Further, in terms of Railway Board's letter No.99-
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E(SCT)1/25/10, dated 11.05.1999, since there is element of direct
recruitment in Junior Engineer-II, the question of decategorization does
not arise and further as there were four technicians Grade-I in the panel,
who are senior to the respondent, as per the instructions vide
S.C.No.41/87, the panel was drawn and no seniority marks were awarded.
It is the further case of the petitioner that, the Tribunal erred in
passing the impugned orders observing that the reserved candidates who
came up on their own merit shall not be adjusted against unreserved
vacancies, contrary to the settled law laid down by the Hon'ble Supreme
Court in R.K.Sabharwal [(1995)2 SCC 745] and more over, if the
SC/ST candidates became seniors and stood in the merit, it is protected by
85th Constitutional amendment. Thus, the petitioner did not commit any
wrong in adjusting meritorious SC/ST candidates against the unreserved
vacancies and that the system followed in the promotions is based on the
policy of Railways and it cannot found fault in view of the various
pronouncements of the Apex Court and that the Courts generally ought not
to have interfered with the policy matters of the Government. Further, this
Court has granted status quo in writ petitions filed questioning the similar
orders passed by the Tribunal in Writ Petition No.19066 of 2008 and batch.
Hence, prayed to declare the orders dated 30.07.2008 passed in
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O.A.No.482 of 2006 by the Central Administrative Tribunal, Hyderabad
Bench as illegal, arbitrary, capricious and unconstitutional.
3. The 1st respondent did not choose to file any counter affidavit.
4. The respondent Nos. 2,4 and 5 filed common counter affidavit
praying to vacate the interim orders passed in WPMP No.34881 of 2008,
inter alia contending that, the Tribunal erroneously passed the impugned
orders, directing the petitioner to revise the panel of JE II and aggrieved
thereby the petitioner filed this Writ Petition and obtained status quo order
on 05.12.2008. It is their further case that, as on the date of passing the
status quo orders, they were already promoted as JE II and further they
were promoted to SSE, however, since the 1st respondent filed Contempt
Case, the petitioner erroneously reverted them by order dated 26.03.2015
and more over allowed their juniors to continue as SSE. Aggrieved thereby,
the respondent Nos. 2,4 and 5 made a representation to the petitioner on
10.04.2015 and the same is pending. As the 2nd respondent secured marks
in general standard on own merit, the petitioner rightly treated the 2 nd
respondent as qualified against unreserved vacancy on own merit and
accordingly prepared panel by following the Rules and Instructions issued
by the Railway Board pursuant to the orders passed by the Apex Court.
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The orders passed by the Tribunal is not in accordance with the law laid
down by the Apex Court in R.K.Sabrawal's case (1995) 2 SCC 745. In
view of the status quo orders granted, the respondent Nos.2,4 and 5 were
reverted to the post of JE II allowing their juniors to continue in higher
post, which is impermissible and contrary to law. Hence, prayed to vacate
the interim order passed in W.P.M.P.No.34881 of 2008 in W.P.No.26643 of
2008.
5. Heard Sri Venna Hemanth Kumar, learned Standing counsel for
Railways, Smt. S. Anuradha, learned counsel for the 1st respondent and Sri
K. Siva Reddy, learned counsel for respondents 2 to 5.
6. Sri Venna Hemanth Kumar, learned standing counsel for the
Railways, in elaboration, would submit that, as the 2nd respondent, who
belongs to Scheduled Caste category, was selected by in general standard
on own merit, he was treated as selected on his own merit as per the
terms of Railway Board Letter No.99E (SSCT)1/25/13, dated 29.06.2003.
Questioning the same, the 1st respondent filed Original Application No.482
of 2006 and the Central Administrative Tribunal, Hyderabad Bench, vide
impugned orders allowed the Original Petition directing the respondents to
revise the panel. The orders impugned are contrary to the settled law laid
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down by the Hon'ble Supreme Court in R.K.Sabharwal v. State of
Punjab, (1995) 2 SCC 745. Hence, the orders impugned are liable to be
set aside. Accordingly, prayed to allow the writ petition.
7. Smt. S. Anuradha, learned counsel for the 1st respondent, would
submit that, since the 2nd respondent has received the benefit of
reservation in lower post resulting in accelerated promotion, he cannot be
accommodated against one of the unreserved vacancies basing on his
seniority, by keeping one SC vacancy unfilled. The Central Administrative
Tribunal has considered the issue in right perspective and hence the orders
impugned does not warrant any interference of this Court. Hence, prayed
to dismiss the Writ Petition.
8. Sri K. Siva Reddy, learned counsel for respondent Nos. 2 to 5, has
submitted that the petitioner has prepared the panel duly following the
Rules and instructions issued by the Railway Board and even if the case of
the 1st respondent is upheld, he is not disputing the entitlement of the
respondent Nos.2 to 5 for promotion. The orders passed by the Tribunal is
not in accordance with the law laid down by the Apex Court in
R.K.Sabharwal. Hence, prayed to dismiss the writ petition.
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9. In R.K.Sabharwal v. State of Punjab, the Hon'ble Apex Court
held:
"4. When a percentage of reservation is fixed in respect of a particular
cadre and the roster indicates the reserve points, it has to be taken that the
posts shown at the reserve points are to be filled from amongst the
members of reserve categories and the candidates belonging to the general
category are not entitled to be considered for the reserved posts. On the
other hand the reserve category candidates can compete for the non-
reserve posts and in the event of their appointment to the said posts their
number cannot be added and taken into consideration for working out the
percentage of reservation....."
10. The observations made in the decision referred to supra indicate
that in case a reserve category candidate competes with the general
candidate on his own merit, his number cannot be added and taken into
consideration for working out the percentage of reservation. The above
observations are in relation to direct recruitment but not in relation to
promotions by selection from the lower cadres.
11. There is no dispute regarding the settled principle of law
enunciated in the decision referred to supra that if reserved candidates
who competes with the general candidate on their own merit, their
number will not be added to the percentage of reservation and the posts
earmarked for reserved candidates would be filled with other eligible
reserved candidates only.
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12. The issue in the case on hand stands on different footing. The
Short point involved in this writ petition is, whether a reserve category
candidate, who had earlier received the benefit of reservation in the lower
post, can be adjusted against unreserved vacancy for promotion by
selection on the ground he has competed with general candidates on his
own seniority and merit. Thus, the observations made in the above
referred decision are not applicable to be present facts of the case.
13. In Bir Singh & Others vs. Union of India & others of the
Central Administrative Tribunal, Hyderabad Bench passed in OA 251 of
2003 vide orders dated 31.07.2003, which was relied on by the Tribunal
while passing the impugned orders, it is held thus:
" If the SC/ST candidates, who have passed the selection on their
own merit and seniority and had not availed the benefits of
reservation if any of the lower posts, then such SC/ST candidates can
be considered to have competed with general candidates and such
candidates can be adjusted against unreserved vacancies. Further, if
SC/ST candidates who have received the benefit of reservation in any
of the lower posts resulting in their accelerated promotion, then they
cannot be considered to have competed with general candidates on
their own seniority and merit and they have to be adjusted against
reserved vacancies only."
14. In view of the above observations, once SC/ST candidate receives
the benefit of reservation in any of the lower posts resulting in their
accelerated promotion, he has to be adjusted against reserved vacancy
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only and he cannot be considered to have competed with general
candidates on his own seniority and merit.
15. The impugned orders further shows that consequent to the
judgment referred to supra in R.K.Sabharwal, the Department of
Personnel & Training issues memorandum dated 02.07.1997 and a further
clarification on 11.07.2002 that if SC/ST/OBC candidate recruited through
direct recruitment competes with unreserved candidates in all respects and
he is selected to unreserved vacancy, he would be counted as unerserved
candidate. But if an SC/ST/OBC candidate gets a higher merit/ranking and
if he is a person who had earlier availed benefits of reservation/
concession, he is to be accommodated against reserved quota only. The
petitioner did not raise any specific grounds in the revision disputing the
issuance of Official Memoranda referred to in the impugned orders in light
of the judgment in R.K.Sabharwal.
16. Therefore, the memoranda referred to supra directly answers the
issue involved in this writ petition. Thus, it is evident that SC/ST candidate
who had availed relaxation has to be adjusted against reserved vacancy
only, though secured high position in the select list on his own merit.
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17. In view of the above, it is evident that the petitioner, in utter
ignorance of the memoranda dated 02.07.1997 and 11.07.2002 has
prepared the panel list accommodating the 2nd respondent, a reserved
candidate that availed the concession in lower post resulting in
accelerated promotion, against unreserved vacancy that too by leaving the
reserved vacancy unfilled. The Tribunal has analysed the material as well
as the memoranda issued by the Railway department itself in right
perspective and came to the right conclusion in allowing the Original
Application by passing the impugned orders. The said orders does not
require any interference of this Court in this Writ Petition. There are no
merits in the writ petition and the same deserves dismissal.
18. Accordingly, the Writ Petition is dismissed. There shall be no
order as to costs.
As sequel thereto, miscellaneous petition, if any, pending shall
stand closed. Interim orders, if any, shall stand vacated.
______________________
JUSTICE M. GANGA RAO
_________________________
JUSTICE RAVI CHEEMALAPATI
31st March, 2023
RR
RC,J
W.P.No.26643 of 2008
HON'BLE SRI JUSTICE M. GANGA RAO
&
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
(Per Hon'ble Sri Justice M.Ganga Rao)
WRIT PETITION No. 26643 of 2008
31st March, 2023
RR
