Calcutta High Court (Appellete Side)
Ct. 16 vs Sg Union Of India & Ors on 6 August, 2021
Items- 06-08-2021 WP.CT 59 of 2018
3 With
CAN 1 of 2020
With
CAN 2 of 2020
Sudhir Chandra Bhowmick
Ct. 16
Versus
sg Union of India & Ors.
(Through Video Conference)
Mr. Achintya Kr. Banerjee, Adv.
Ms. Indumouli Banerjee, Adv.
...for the petitioner
Mr. Rajdeep Biswas, Adv.
Mr. Arijit Majumdar, Adv.
...for the UOI
The apathy of the administration to grant promotion to the
writ petitioner who is admittedly a reserved candidate to the post
of Draftsman with retrospective effect from 29th November,
1993, has not been properly and correctly appreciated and
addressed. This has given rise to the present writ application in
which the cryptic order of the Tribunal in affirming a reasoned
order dated 30th April, 2010 is under challenge.
To give a short background to the case we may state that,
the applicant is a reserved candidate. He, at the relevant time,
was working as a Map Mounter in Map Category Division and
had completed about eight years of service in the said grade on
29th November, 1993. The respondent authorities initially on 24 th
February, 1994 rejected the representation of the writ petitioner
on the ground that as per Government of India Recruitment
Rules, a Map Mounter would be promoted to the post of
Draftsman after completion of eight years of service. One post of
Draftsman was kept reserved for SC candidate for selection of
the candidate from Map Mounter on pro-data basis. However,
that post was diverted to general category and it was not offered
to the writ petitioner as he was found not to be eligible at that
time.
The grievance of the writ petitioner that a post should have
been kept reserved for any SC candidate working as Map
Mounter in the SC roster, was rejected by making reference to
certain circulars which, inter alia, include the DOPT Office
Memorandum dated 25th April, 1989 on which reference has also
been made in the order passed by the authorities concerned. In
view of the fact that the writ petitioner was denied promotion, he
approached the Tribunal with O.A. 1036 of 1995. The Tribunal
while deciding O.A. 1036 of 1995 made the following
observations:
"We have carefully considered the relevant facts and
submissions of the learned counsel for the parties. form the copy
of the Recruitment Rules for the post of Draftsman which was
submitted during the hearing by the learned counsel for the
respondents, it is seen that there were as many as 421 posts of
Draftsmen out of which 10% was ear-marked for promotion
quota and 90% for direct recruitment quota. Having regard to
the provisions of Article 16(4) of the Constitution and catena of
judgments of the Hon'ble Supreme Court (See for example Indra
vs. UOI (AIR 1993 SC 477) denial of any reservation for the
SC/ST candidates in the promotion quota cannot be accepted as
this will be contrary to the law. No reference is made to the
DOPT's OM dated 25.4.1989 relied upon by the respondents
nor is there any reasonable criteria put forward by the
respondents for adopting 66-2/30% or 75%, as the case may be,
in the Recruitment Rules, to deny reservation to SC/ST
candidates. Besides it is also relevant to see that note below
para 8 of the Recruitment Rules for the post of Draftsman where
provision is also made that the qualification regarding
experience is reliable at the discretion of the competent
authority in the case of candidates belonging to SC/STs. In the
present case, the applicant admittedly completed 8 years
experience in the grade of Map Mounter on 29.11.1993 and the
post in question had fallen vacant against the roster point in
1992. Admittedly, the applicant is a SC candidate. It is also
settled law that DOPT's OM by way of guidelines/instructions
provided for SC/STs cannot amend the statutory law/Rules and
more so, the Constitutional mandate for reservation to be
provided for SC/STs which is applicable to the facts of this case.
We are unable to accept the contention of the Ld. Counsel for
the respondents that there was no reservation in promotion for
the SC/ST candidates in the post of Draftsmen which have fallen
vacant since 1992. It is noticed that there are as many as 421
posts of Draftsmen in the cadre.
7. In the result for the reason given above, the OA
succeeds and is allowed. Accordingly, the impugned letters
dated 24.02.1994 and 30.06.1995 are quashed and set aside and
the DOPT's OM dated 25.04.1989 also quashed and set aside.
We direct the respondents to consider the case of the applicant
for promotion to the post of Draftsman which has fallen vacant
since 1992 in accordance with law and rules. This hall be done
within a period of 3 (three) months from the date of receipt of a
copy of this order. In case, the applicant is found eligible for
such promotion, he shall be entitled to all consequential benefits
including difference in pay and allowance and other benefits in
accordance with law."
Aggrieved by the said decision, the administration
preferred a writ petition while affirming the order passed by the
learned Tribunal. The Hon'ble Division Bench held as follows:
"Undisputedly, there are as many as 421 posts of
Draftsman in the cadre. By the letters dated 24th February, 1994
and 30th June, 1995 and also by the Officer Memorandum of 25th
April, 1989 issued by the DOPT, reservation of vacant posts for
SC/ST candidates to the post of Draftsman have been altogether
ignored and the learned Tribunal, therefore, following the
settled law as laid down by the Supreme Court in various
decisions, specially, in case of Indra Sawhney Vs. Union of
India & Ors. reported in AIR 1993 SC 477, specifically held that
in the present case denial of reservation for the ST/SC
candidates cannot be permitted as the same is contract to law.
In the case of Indra Sawhney vs. Union of Idia (Supra),
the Supreme Court specifically held:
"387 ............. Under Article 46, the State is required
to "promote with special care" the "educational and
economic interests" of the "weaker sections" of the
people and "in particular", of the Scheduled Castes
and Scheduled Tribes, and "to protect" them from
"social injustice" and "all forms of exploitation".
Since in the present case, we are not concerned with
the reservations in favour of the SCs/STs, it is not
necessary to refer to Art. 335 except to point out that,
it is in terms provided there that the claims of SCs/STs
in the services are to be taken into consideration,
consistently with the maintenance of efficiency of
administration........"
In view of Article 16(4A), provisions can be made for
reservation in the matter of promotion in the services in favour
of the Scheduled Castes and Scheduled Tribes. Articles 16(4A)
is reproduced hereinbelow:
"16. Equality of opportunity in matters of public
employment. ..........
(4A) Nothing in this article shall prevent the State
from making any provision for reservation [in matters
of promotion, with consequential seniority, to any
class] or classes of posts in the services under the
State in favour of the Scheduled Castes and the
Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under
the State.".
No material has been produced before us wherefrom it
would appear that the principle relating to the reservation of
posts for the ST/SC candidates have been followed by the
petitioners while filling up the vacant posts of Draftsman.
The learned Counsel of the petitioners also failed to
explain and demonstrate how the principles laid down by the
Supreme Court with regard to reservation for the ST/SC
candidates have been followed by the petitioners while issuing
the i8nstrutions by the letters dated 24th February, 1994, 30th
June, 1994 and under the Office Memorandum dated 25 th April,
1989.
The claims of the SCs/STs in the services are to be taken
into consideration and under no circumstances same can be
ignored. In the present case, learned Tribunal did not permit
denial of reservation in favour of the Scheduled Castes and
Scheduled Tribes in the matter of promotion to the posts of
Draftsman which fell vacant since 1992.
The learned Tribunal, ultimately, directed the petitioners
herein to consider the claims of the respondents for promotion
to the posts of Draftsman which have fallen vacant since 1992 in
accordance with law and rules.
We do not find any illegality and/or irregularity in the
aforesaid direction of the learned Tribunal as the authorities
namely, the petitioners herein cannot refuse to consider the
claims of a citizen in accordance with law and rules."
In purported consideration of the said representation, the
authorities concerned by an order dated 30th April, 2020 rejected
the prayer of the writ petitioner on the following grounds:
"Thus it emerges that the promotion of Sh. S.C. Bhowmik
to the post of Draftsman, as prayed for, could not be considered
for two reasons - (1) that as per the Recruitment Rule framed by
the Government of India, for the post of Draftsman in GSI, the
element of Direct Recruitment was 90% against the stipulated
limit of 10% as per the DOPT OM. 1989, where reservation in
promotional quota does not arise and (2) that he did not
complete the eight year residency period at the time of
occurrence of the vacancy, for which his name did not come
under the consideration zone and hence not considered for
promotion."
The authority concerned could not have relied upon the
Office Memorandum dated 25th April, 1989 nor could he offer
any plausible explanation how the principles laid down by the
Hon'ble Supreme Court in Indra Sawhney Vs. Union of India &
Ors. reported in AIR 1993 SC 477 could be bypassed. It is
elementary that all memoranda or circulars contrary to the said
judgment are void ab initio. In this proceeding also we could not
find any satisfactory reply from the respondent authorities as to
how the respondent authorities could pass the reasoned order by
relying upon the instructions contained in the letters dated 24th
February, 1994 and 30th June, 1995 and the Office Memorandum
of 25th April, 1989. The said reasoned order forms the basis of
the impugned order. The learned Tribunal failed to take notice of
the Hon'ble Division Bench order and the fact that in view of the
judgment of the Hon'ble Supreme Court in Indra Sawhney
(supra) and the observations made by the Hon'ble Division
Bench to the effect that the claims of the Scheduled Castes and
Scheduled Tribes in the service are taken into consideration and
under no circumstances, the same can be ignored and having
regard to the fact that the policy of reservation could not be
denied in favour of the Scheduled Caste and Scheduled Tribe
candidates in the matter of promotion to the posts of Draftsman
that have fallen vacant since 1992. The Tribunal has committed
an error in dismissing the original application. The speaking
order is not in conformity with the observations made in the
earlier proceeding affirmed by the order passed by the
coordinate Bench dated 2nd February, 2010.
In view thereof, the order of the learned Tribunal is set
aside.
In view of the fact that the petitioner had retired on 29 th
February, 2008, he should be given all consequential benefits
including difference in pay and allowances and other benefits in
accordance with law treating him to be promoted to the post of
Draftsman on and from 29th December, 1993 till the date of
retirement as well as pensionary benefits.
The entire exercise shall be completed within a period of
twelve weeks from date.
With the above directions, the writ petition and the
applications are disposed of.
All parties shall act on the basis of the server copy of this
order duly downloaded from the official website of this Court.
(Hiranmay Bhattacharyya, J.) (Soumen Sen, J.)
