Harbans Singh And Anr. vs Union Of India And Ors.
2002 Latest Caselaw 194 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against an order dated 28th February 2001 passed by the Central Administrative Tribunal ("CAT" for short) in OA No. 691/2000 whereby and whereunder the Original Application filed by the petitioners herein was dismissed.

2. The writ petitioners who were two in number filed the afore-mentioned Original Application before the learned Tribunal questioning the inaction of the respondents in the matter of inclusion of their names in the list for their promotion as an Assistant Engineer in Central Public Works Department (CPWD).

3. The factual matrix relevant for the purpose of this petition is as follows:

4. The UPSC invited applications on or about 1st August 1992 from eligible candidates for a limited departmental competitive examination for promotion of Junior Engineer Grade (Electrical) to the post of Assistant Engineer Grade (Electrical) in the CPWD. Rule 8 of Rules of examination is as follows:

"8. After the examination, candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate; and in that order so many candidates as are found by the Commission to be qualified by the examination shall be recommended for promotion up to the required number.

Provided that candidates belonging to the Scheduled Castes or the Scheduled Tribes may to the extent the number of vacancies 'reserved for' the Scheduled Castes and the Scheduled Tribes cannot be filled on the basis of the general standard be recommended by the Commission by a relaxed standard to make up the deficiency in the reserved quota, subject to the fitness of these candidates for promotion irrespective of their ranks in the order of merit at the examination."

5. The said examination was held for 36 posts, out of which 18 were meant for general category, 9 for ST category and 9 for SC category candidates. upon holding the examination, the UPSC recommended only 31 candidates out of 74 candidates qualified out of whom 18 belonged to general category, 12 to SC and 1 to category.

6. An Original Application was filed before CAT which was marked as OA 2126/93 on the ground that the reservation rules applicable to SC/ST candidates, as contained in para 11.2 of the Brochure for reservation had not been followed. A similar application was filed by two other candidates before the Tribunal which was marked as OA 1965/94. The said applications were allowed by two different Benches of the CAT on 23rd April 1999 and 14th July 1999. The said orders have been complied with by issuing a supplementary list of three more reserved candidates qualified for examination and merit list including three of the applicants in the aforesaid two Original Applications.

7. The petitioners filed the Original Application before the Tribunal seeking the same relief which was dismissed by the impugned judgment dated 28th February 2001.

8. Mr. Khurana, the learned senior counsel appearing on behalf of the petitioner would submit that having regard to the decisions of the Tribunal in the afore-mentioned two applications, there could not have been any reason for the Tribunal to disagree therewith inasmuch as in the event the requisite number of candidates in the ST category is not available, the posts should be filled up from amongst the candidates belonging to the SC category.

9. The judgments of a court of law which have attained finality, contends Mr. Khurana, should be given effect to and the persons similarly situated must be given the same benefit. The learned counsel would contend that the instructions still being in force, the respondent acted illegally in not implementing the same.

10. Ms. Raman Oberoi, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the Tribunal had disposed of the earlier decisions on a wrong premise. It was contended that there exists a distinction between inter-changeability of the candidates who were to be appointed through limited departmental competitive examination and those who were to be promoted upon selection. Our attention, in this connection, has been drawn to para 9.1 of Chapter 9 read with Appendix 13 of Brochure on Reservation for SC and ST in Services which is to the following effect:

9.1 As indicated in para 2.1 (iii)(a); there is a reservation of 15 per cent and 7 1/2 per cent of vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions made on the basis of competitive examination limited to departmental candidates, in Group, B,C, and D (Class II, III and IV) posts, in grades or services in which the element of direct recruitment, if any, does not exceed 75 vacancies are given in Appendix 13).

In promotions through departmental competitive examinations, Scheduled Castes/Scheduled Tribes candidates who have not acquired the general qualifying standard should also be considered for promotion provided they are not found unfit for such promotion. The qualifying standard in such examination should be relaxed in favor of Scheduled Casts and Scheduled Tribes candidates in keeping with the above criterion.

For determining the number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in such promotions, a separate roster on the lines of the roster prescribed in Annexure I to O.M. No. 1/11/69-Est. (SCT) dated 22-4-1970 (in which points 1, 8, 14, 22, 28 and 36 are reserved for Scheduled Castes and points 4, 17 and 31 are reserved for Scheduled Tribes) should be followed."

Clause 9.2(a) deals with promotion by selection within Group A (Class I).

Appendix 13 appended to the said brochure inter alia provides as follows:

"The following instruction will apply to the filling of vacancies reserved for Scheduled Casts and Scheduled Tribes in posts filled by promotion.

(1) (a) Scheduled Casts and Scheduled Tribe Officers who are within the normal zone of consideration should be considered for promotion along with others and adjudged on the same basis as others and those Scheduled Castes and Scheduled Tribes amongst them who are selected on that basis may be included in the general select list in addition to their being considered for separate select list for Scheduled Casts and Scheduled Tribes respectively.

(b) If candidates from Scheduled Cats and Scheduled Tribes obtain on the basis of their positions in the aforesaid general select list, less vacancies than are reserved for them, the difference should be made up by selected candidates of these communities who are in the separate select list for Scheduled Castes and Scheduled Tribes respectively.

(2) In the separate select lists drawn up for (i) Scheduled Castes and (ii) Scheduled Tribes Officers belonging to Scheduled Castes or Scheduled Tribes, as the case may be, will be adjudged separately amongst themselves and not Along with other officers and if selected, they should be included in the concerned separate selected list, irrespective of their merit as compared to other officers. It is needless to mention that officers not belonging to Scheduled Castes and Scheduled Tribes will not be considered whilst drawing up separate select list for Scheduled Castes and Scheduled Tribes.For being considered for inclusion in the aforesaid separate select lists, the zone of consideration for Scheduled Castes and Scheduled Tribes as the case may be would be of the same size as that for the general select list that is if, for the general select list the zone of consideration is 5 times the number of vacancies likely to be filled, the zone of consideration for the separate list for Scheduled Castes will also be 5 times the number of reserved vacancies for them, and likewise for Scheduled Tribes subject of course to the condition that officers coming within such zone are eligible by length of service etc. as prescribed, for being considered for promotion.

(3) If, owning to non-availability of suitable candidates belonging to Scheduled Cases or Scheduled Tribes, as the case may be, it becomes necessary to de-reserve a reserved vacancy a reference of dereservation should be mae to the Department of Personnel and Training indicating whether claims of Scheduled Castes/Scheduled Tribes candidates eligible for promotion in reserved vacancies have been considered in the manner indicated in (1) and (2) above. When dereservation is agreed to by the Department of Personnel and Training the reserved vacancies can be filled by other candidates, subject to the reservations being carried forward to three subsequent recruitment years and subject to exchange of vacancies between Scheduled Castes and Scheduled Tribes in the last year to which reserved vacancy are carried forward.

(4) Where promotions in the above manner are first made on a long-term officiating basis, confirmations should be made according to the general rule viz. that an officer who has secured earlier officiating promotion on the basis of his place in the select list should also be confirmed earlier and thus enabled to retain the advantage gained by him. Provided that he maintains an appropriate standard vide para. 1 (iii) of the Ministry of Home Affairs office memorandum No. F. 1/1/55-R{S dated the 17th February, 1955. But the principle of reservations would not apply again at the time of confirmation of promotees."

11. The Ministry of Home Affairs, however, had issued OM No. 27/25/68-Estt. (SCT) dated 25th March 1970 regarding reservations for Scheduled Castes and Scheduled Tribes in Services.

12. The learned counsel would contend that having regard to the extant rules, all the posts which could not be filled up from amongst the Scheduled Tribe candidates for lack of sufficient number of candidates, the same had been de-reserved and five general candidates had been appointed.

13. It is not in dispute that in terms of Rule 23 of the Central Electrical Engineering Service Class-II Recruitment Rules, 1954, 50% of the posts of Assistant Engineer (Electrical) were to be filled up by promotion whereas the rest were to be filled up by selection from amongst the Junior Engineers after consultation with UPSC on the basis of limited departmental competitive examination. The examination was held in two parts namely, the written examination carrying a maximum of 600 marks. Evaluation of record of service of such candidates as may be decided by the UPSC carried a maximum of 200 marks. Upon completion of the examination, the Commission intimated that the vacancies reserved for SC/ST candidates against which suitable candidates belonging to those categories were not available even upon relaxation of the standard, in relation thereto. Thereafter a conscious decision was taken by the respondents to de-reserve the said five vacancies in terms of para (30 of the Appendix afore-mentioned. It is not in dispute that the writ petitioners were not placed in the select list having regard to the marks obtained by them.

14. Clause (3) of the appendix 13 of the said brochure clearly states that reservation would be carried forward to three subsequent recruitment years where posts were to be filled up by selection through limited departmental competitive examination. However, in case of promotion by way of selection from Group C to B, Clause (vi) of para 9.2.(b), it provides for an enabling clause where an officer may also be considered for appointment against a vacancy reserved for Scheduled Tribe or vice versa in the same year in which the reservation is made in the event the appropriate reserved vacancy is not filled up by a Scheduled Tribe or a Scheduled Caste candidates, as the case may be.

15. The respondents were bound by the afore-mentioned rules. In that view of the matter, it must be held that the Tribunal applied the wrong principle while rendering its earlier decisions. It may be true that in terms of Article 14 of the Constitution of India, persons similarly situated may be held to be entitled to the benefit of a judgment rendered in favor of similarly situated persons but it is also well known that Article 14 is a positive concept.

16. Article 14 of the Constitution postulates equality before law and equal opportunity of law.

17. No person derives any right in terms of an illegal order and thus equality clause in such case cannot be invoked on such basis. It is equally well settled that illegality cannot be allowed to be perpetuated. Although the Tribunal has not considered this aspect of the matter, we are of the opinion that no case is made out for interference with the impugned judgment. This petition is, therefore, dismissed. However in the facts and circumstances of this case there shall be no order as to cost.