Bombay High Court
Rajneesh Kumar Yadav And Ors vs Union Of India Thru Secretary, Railway ... on 23 January, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
912-WP-1305-23.doc Rameshwar Dilwale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RAMESHWAR CIVIL APPELLATE JURISDICTION
LAXMAN
DILWALE
WRIT PETITION NO.1305 OF 2023
Digitally signed Rajneesh Kumar Yadav & Ors. .. Petitioners
by RAMESHWAR
LAXMAN Vs.
DILWALE
Date: 2024.01.23
Union of India & Ors. ` .. Respondents
16:25:11 +0530
...
Mr. Rahul G. Walia, i/by Mr. Vishwajeet Mohite for the Petitioners.
Mr. Neel Helekar a/w Mr. A. R. Gole for Respondent Nos. 1, 2, 4 & 5.
Mr. Suresh Kumar for Respondent No.3.
...
CORAM : A.S. CHANDURKAR &
FIRDOSH P. POONIWALLA, JJ
Date on which arguments were heard : 12th DECEMBER, 2023.
Date on which the order is passed : 23rd JANUARY, 2024.
P.C. :
1. The petitioners who are eight in number have raised the challenge
to the letter issued by the Railway Board on 11/08/2022 which seeks to
withdraw its earlier letter dated 21/01/2019 which provided for
candidates from the reserved category to be considered for promotion only
against vacancies of the reserved category. The petitioners have also
challenged the Notification dated 15/12/2022 that has been issued by the
Principal Chief Security Commissioner, Central Railway/Western Railway
which permits candidates from the reserved category to seek promotion on
vacancies even with regard to unreserved category.
2. Since arguable questions arise, Rule. Rule made returnable early.
912-WP-1305-23.doc Rameshwar Dilwale
Respective counsel waive service.
While issuing notice on 01/02/2023 an ad-interim order was passed
permitting the respondents to proceed with the Departmental Promotion
Examinations and undertake further process. However, promotion orders
were directed not to be issued. When the writ petition was listed on
12/12/2023 a prayer was made by the learned counsel for the
respondents to vacate the ad-interim order. Accordingly, we have heard
the learned counsel on the question of interim relief.
3. According to the petitioners, initially, the matter of promotion and
reservation therein was governed by the Office Memorandum dated
13/08/1997 issued by the Ministry of Personnel, Public Grievances and
Pensions of the Government of India. Under this Office Memorandum,
reservation for Scheduled Castes and Scheduled Tribes in promotion was
recognized till such time the representation of each of the two categories
reached the prescribed percentage of reservation. This Office
Memorandum was the subject matter of challenge before the Delhi High
Court in Writ Petition (C) No.3490 of 2010 (All India Equality Forum &
Ors. Vs. Union of India & Ors.). By the judgment dated 23/08/2017, the
Delhi High Court proceeded to hold that in view of the law laid down by
the Hon'ble Supreme Court in M. Nagaraj and Anr. Vs. Union of India and
Ors. (2006) 8 SCC 212, in the absence of conducting an exercise of
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garnering quantifiable data, the provision of reservation would infract
Articles 16(1) and 335 of the Constitution of India. On that basis, the
Office Memorandum dated 13/08/1997 issued by the Department of
Personnel and Training came to be quashed. This judgment of the Delhi
High Court is the subject matter of challenge before the Hon'ble Supreme
Court which is pending. The Constitution Bench of the Hon'ble Supreme
Court in Jarnail Singh & Ors. Vs. Lachmi Narain Gupta & Ors. (2018) 10
SCC 396 held that the judgment in M. Nagaraj (supra) did not call for any
reference to a larger bench. However, it held that the conclusion recorded
that the State had to collect quantifiable data showing backwardness of
Scheduled Castes and Scheduled Tribes was contrary to the judgment in
Indra Sawhney Vs. Union of India (1992) Supp (3) SCC 217.
4. On 21/01/2019, the Railway Board issued a communication stating
therein that candidates from the reserved category would be considered
for promotion only against vacancies of reserved category. Promotion
orders to be issued were to be on provisional basis and subject to on-going
litigation on the subject. According to the petitioners, the Central Railway
as well as the Western Railway effected promotions on the basis of this
communication dated 21/01/2019 issued by the Railway Board. However,
without there being any justifiable reason, the Railway Board on
11/08/2022 issued another communication and withdrew the earlier
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communication dated 21/01/2019. It was further directed that all
promotion orders be treated as provisional subject to outcome of the
litigation pertaining to the judgement in the case of Jarnail Singh (supra).
In view of this communication dated 11/08/2022, the Central Railway as
well as the Western Railway proceeded to issue Notifications and prepared
a list of candidates in the order of seniority to effect promotions to the
rank of Inspector. The petitioners are aggrieved by the communication
dated 11/08/2022 issued by the Railway Board withdrawing its earlier
communication dated 21/01/2019 and they contend that the earlier
communication ought to be restored and candidates from the reserved
category ought to be considered for the promotion only for those posts
that are reserved.
5. Shri R. G. Walia, the learned counsel appearing for the petitioners
submitted that the Railway Board without any legal justification
proceeded to withdraw the communication dated 21/01/2019 by virtue of
which candidates from the reserved category were entitled to consider for
promotion only against vacancies of reserved category. This resulted in
indirectly restoring the effect of Office Memorandum dated 13/08/1997
which infact had been set aside by the Delhi High Court on 23/08//2017.
Notwithstanding aforesaid and without the data as expected to be taken
into consideration by the Hon'ble Supreme Court in M. Nagaraj (supra),
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the communication dated 11/08/2022 came to be issued. In fact, by
virtue of the earlier communication dated 21/01/2019, the Railway Board
was justified in directing consideration of the claim of candidates from the
reserved category for being promoted only against vacancies of reserved
category. Referring to the seniority list of candidates, it was submitted that
effecting promotions in accordance with the communication dated
11/08/2022 would result in candidates from the reserved category being
considered for promotion even against unreserved posts. The learned
counsel invited attention to Paragraph 123 of the decision in M. Nagaraj
(supra) and submitted that the State was not bound to make reservation
for Scheduled Castes and Scheduled Tribes in the matter of promotion.
The notification issued by the Central Railway and the Western Railway
for undertaking promotion on the basis of the communication dated
11/08/2022 was thus bad in-law. The learned counsel also referred to
Paragraph Nos. 81, 85 and 86 of the decision in Uttar Pradesh Power
Corporation Limited Vs. Rajesh Kumar & Ors. ( 2012) 7 SCC 1. Inviting
attention to the interim order passed on 01/02/2023, it was submitted
that promotion orders may not be permitted to be issued on the basis of
the notification dated 15/12/2022 issued by the Central Railway and
Western Railway as well as the communication dated 11/08/2022.
6. Shri Neel Helekar, the learned counsel appearing for the Respondent
912-WP-1305-23.doc Rameshwar Dilwale
Nos.1, 2, 4 and 5 and Shri Suresh Kumar, the learned counsel appearing
for Respondent No.6 opposed the aforesaid submissions. It was submitted
that in the notification dated 15/12/2022 issued by the Central Railway as
well as by the Western Railway the bifurcation of the various posts
available for being filled in promotion as well as the seniority list
published had not been challenged by the petitioners. The consideration
of the claims for promotion was being made in accordance with the
vacancies indicated and the seniority list that was operating. The manner
in which promotion to the candidates from the reserved category were
being issued from time to time was pointed out. Reference was made to
communication dated 16/06/1992 issued by the Railway Board in that
regard. Referring to the communication dated 07/08/2002, it was
submitted that if candidates from the reserved category were promoted
on their own merit and not due to reservation or relaxation of
qualifications, they would not be adjusted against reserved posts of the
reservation roster. They were to be adjusted against unreserved posts.
This communication was holding the field and governed the department.
Referring to the Office Memorandum dated 12/04/2022, it was submitted
that since proceedings pertaining to the Jarnail Singh batch of cases were
pending, the promotion orders were to be subject to further orders that
would be passed. It was for this reason that the communication dated
21/01/2019 issued by the Railway Board was withdrawn and promotions
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effected were to be treated as provisional subject to outcome of the
pending cases. The learned counsel referred to the further directions
issued on 22/06/2022 by the Ministry of Railway through its Dy. Director,
Establishment, Railway Board. It was stated clearly therein that
candidates appointed on merit and not on the basis of reservation should
not be shown against reserved posts but that they would occupy the
unreserved posts. It was therefore submitted that there was no reason
whatever to interfere with the communication dated 11/08/2022 and
restore the earlier communication dated 21/01/2019 that had been
withdrawn. The candidature of the petitioners was liable to be considered
on its own merits and if eligible, they were entitled to be considered for
promotion. The interim directions issued on 01/02/2023 precluded the
respondents from issuing the orders of promotion and the same was liable
to be thus vacated. Reliance was placed on the decision in Saurav Yadav &
Ors. Vs. State of Uttar Pradesh & Ors. (2021) 4 SCC 542 and Jarnail Singh
& Ors. Vs. Lachhmi Narain Gupta & Ors. (2022) 10 SCC 595.
7. We have heard the learned counsel for the parties on the question
of interim relief. At the outset it may be noted that the communication
dated 11/08/2022 merely makes an ad-hoc arrangement and permits
orders of promotion to be issued by treating them as provisional and
subject to the outcome of "Jarnail Singh batch of cases". This
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communication does not lay down any final policy on the issue with
regard to reservation in promotion of members of the Railway Protection
Force. It is in that context that the contentions of the parties would have to
be considered.
8. After the earlier communication issued by the Railway Board on
21/01/2019 was issued, the Hon'ble Supreme Court in Saurav Yadav &
Ors. (supra) had an occasion to consider the claim of two candidates from
the reserved category whose grievance was that despite having higher
marks, candidates with lower marks had been selected from the General
Category. In that context, it was held that candidates belonging to any
category under vertical reservation would be entitled to be selected in
Open Category or General Category on the basis of merit. Such selection
could not be counted against the quota reserved for categories for vertical
reservation to which such candidates belong. It is further seen that a
bench of three learned Judges in Jarnail Singh & Ors. (supra) held on
28/01/2022 that Article 16(4)(A) of the Constitution of India enables the
State to make reservation in promotions for Scheduled Castes and
Scheduled Tribes that are not adequately represented in the services of the
State. The provision for reservation in matters of promotion was with
reference to class or classes of post in the services under the State. It was
held that the decision in D. K. Pavitra Vs. Union of India (2019) 16 SCC
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129 that collection of data on the basis of groups was valid was contrary
to the decisions in M. Nagaraj and Jarnail Singh (supra). It thus appears
that the Security Directorate, Railway Board examined the matter
regarding reservation in promotion and thereafter issued the
communication dated 11/08/2022. Considering the fact that this
communication has been issued with a view to undertake an ad-hoc
arrangement that would operate subject to outcome "Jarnail Singh batch
of cases", we find that the interest of the petitioners stand protected in the
sense that even if reservation is applied in promotions, the promotion
orders issued in the meanwhile have been directed to be treated as
provisional.
9. Considering the fact that the larger issue is pending before the
Hon'ble Supreme Court and the impugned communication directs orders
of promotion that would be issued in the meanwhile to be treated as
provisional, we are inclined to modify the ad-interim order dated
01/02/2023. The respondents are justified in contending that though the
requisite process for issuing orders of promotion has been completed, they
are precluded from issuing the promotion orders in view of the ad-interim
order dated 01/02/2023. Accordingly, the ad-interim order dated
01/02/2023 is modified by permitting the respondents to issue promotion
orders pursuant to the Departmental Promotion Examinations that have
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been conducted by them. In terms of the communication dated
11/08/2022, the orders of promotion as issued shall be directed to be
treated as provisional subject to outcome of the litigation referred to in the
said communication. On such orders of promotion being issued, the
promotees shall not be entitled to claim any equity whatever. It is clarified
that the observations made in this order are only for deciding the prayer
for modifying the ad-interim order dated 01/02/2023 and same shall not
be construed as any final expression on the questions raised in the writ
petition. Order accordingly.
[ FIRDOSH P. POONIWALLA, JJ] [A.S. CHANDURKAR, J. ]
