Shri D.S. Meena vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2222 Del

JUDGMENT

Vipin Sanghi, J.

1. Petitioner assails the order passed by the Central Administrative Tribunal , Principal Bench, New Delhi (for short `the Tribunal') in OA No. 2214/04 dated 17.5.2005 and in R.A. No. 151/2005 dated 10.8.2005 rejecting his Original Application. The relief sought by the petitioner before the Tribunal was that the respondent should follow the post based roster for the purpose of allocation of vacancies to Scheduled Tribe candidates.

2. Petitioner, who belongs to a Scheduled Tribe community joined government service in 1997 as Assistant in the Ministry of External Affairs. On 14.11.2002, the respondent notified seventeen vacancies for the post of Section Officer, out of which, two were shown as reserved for Scheduled Castes, two for Scheduled Tribes and thirteen were shown as falling in the general category. However, it had been clearly stated that the vacancy position was tentative and subject to change. The petitioner appeared in the written examination and qualified the same. However, the respondents while notifying the final results recommended 19 candidates of which only one was a Scheduled Tribe candidate and the list did not find the name of the petitioner. After raising a grievance of his not being recommended, he preferred the aforesaid Original Application before the Tribunal, which has been rejected by the order impugned herein. Even the Review Petition preferred by the Petitioner was rejected by the Tribunal.

3. The grievance of the petitioner is that while recommending two additional candidates i.e a total of Nineteen candidates as opposed to Seventeen vacancies earlier notified, the respondents had failed to increase the reservation quota for Scheduled Tribe candidates proportionately. Further grievance is that in the final results published by the respondents, only one Scheduled Tribe candidate had been included. He believes that he was the only other candidate belonging to the Scheduled Tribe category, and that he was wrongfully deprived of consideration by the respondents. In response to his representation the respondents had stated in their impugned communication dated 22.7.2004 that 'there was a shortfall of one Scheduled Tribe slot in the recruitment year 2002-03 which was through examination for the year'. The petitioner had sought the quashing of this communication dated 22.7.2004 as well before the Tribunal. Curiously we find that this communication has not been filed before this Court and no specific relief seeking to quash the said communication has been made in this writ petition under Article 226 of the Constitution of India.

4. Learned Counsel for the petitioner argues that while computing the vacancies falling to the share of Scheduled Tribe candidates, the respondents had ignored their fractional entitlement. This fractional entitlement should have been taken as one. It was claimed that the respondents had ignored the judgment of the Hon'ble Supreme Court in the case of R.K. Sabharwal v. State of Punjab inasmuch as, the vacancy based roster should have been adopted since the prescribed percentage of reservation in favor of Scheduled Tribe employees had not been reached.

5. On the other hand, learned Counsel for the respondents submitted that the decision of the Tribunal is unexceptionable and that the Tribunal had, while passing the impugned order examined the vacancy position before rejecting the Original Application of the petitioner. The respondents relied upon O.M dated 22.7.2004 which explains the manner of fixation of reserved vacancies. The respondents further contend that where the method of recruitment was by way of limited departmental examination(LDE), the post-based roster was applicable and, in the grade of Section Officers there was a shortfall of one Scheduled Tribe officer in the year 2002-03 which was reported to the UPSC. The respondents further contended that few vacancies in the grade of Section Officer had arisen due to deaths/voluntary retirements of officers which could not have been anticipated earlier. The earlier notification of two vacancies for Scheduled Tribe candidates was a calculation error, which was corrected by the Respondents. These vacancies were apportioned between departmental promotion candidates and LDE candidates and the vacancies for the LDE candidates finally turned out to be Nineteen.

6. The Constitution Bench of the Hon'ble Supreme Court in the case of R.K. Sabharwal v. State of Punjab(supra) followed in Union of India v. J.C. Malik and Ors. 1996(1) A.I.S.L.J. 114(SC) held that reservation of jobs for the backward classes SC/ST/OBC should apply to posts and not to vacancies. The Supreme Court in R.K. Sabharwal held as follows:

5...The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of 'running account' is to make sure that the Scheduled Castes/Scheduled Tribes and Backward Classes get their percentage of reserved posts. The concept of 'running account' in the impugned instructions has to be so interpreted that it does not result in excessive reservation. '16% of the posts....' are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved an earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The 'running account' is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the 'running account' must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then the slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.

6. The expressions `posts' and `vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. `Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the `vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of `vacancy' has no relevance in operating the percentage of reservation.

7. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong.

7. The Department of Personnel and Training issued O.M. No. 36012/2/96-Estt-RES) dated 2.7.1997 in pursuance of these decisions. Paragraph 3 of this O.M reads as follows:

3. With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 200-point, 40- point and 120-point vacancy based rosters shall be replaced by post-based rosters. All Ministries/ Departments and concerned authorities are requested to prepare the respective rosters based on the principles elaborated in the Explanatory Notes given in Annexure-I to this OM and illustrated in the Model Rosters annexed to this OM as Annexures-II, III and IV. Similarly, the concerned authorities may prepare rosters to replace the existing 100-point rosters in respect of local recruitment to Groups 'C' and `D' posts on the basis of the same principles.

8. Annexure I to this O.M contains the principles for making and operating the post based rosters. Explanatory Note No. 6 being relevant is being reproduced below:

6. As indicated in the model roster, the method for making a roster is to multiply each post by the prescribed percentages of reservation for the different reserved categories. The point at which the multiple for a community obtains a complete number or oversteps the number is to be reserved for that community- while taking care to evenly space out the different reserved categories. Thus, at point No. 15, in the roster at Annexure-II, both OBC and SC get entitled. However, since earlier reserved point has gone to OBC, point No. 15 has been reserved for SC and point No. 16 for OBC.

9. Annexure II to this O.M contains a model roster of reservation. The Tribunal examined the model post based roster maintained for LDE candidates in the Ministry of External Affairs. As per this roster there are 166 Assistants in the LDE quota and all the points meant for ST candidates are already filled up after the last person was given appointment pursuant to the examination of 2002, one Sh.Roshan Lepcha, who was higher in merit than the petitioner, was selected against the Scheduled Tribe reserved vacancy falling at serial No. 160 of the roster. According to the post based roster the next reserved post for a Scheduled Tribe candidate falls at serial No. 175. Even if there was one more vacancy, the next point i.e serial No. 167 would not go to a reserved category candidate since, as aforesaid, the next reserved post for a ST candidate falls at serial No. 175. The petitioner is not right in claiming that if the respondents had taken in two Scheduled Tribe candidates, he would have been selected. This is because the next reserved vacancy was only at serial No. 175 of the roster, whereas vacancies only up to serial No. 166 had been filled up pursuant to the examination of 2002.

10. In view of the aforesaid, we find no error in the order of the Tribunal and we see no reason to interfere in the well reasoned order passed by the Tribunal. We accordingly dismiss the present petition, leaving the parties to bear their respective costs.