Shir P.S. Vasudeva vs Union Of India & Others.
2009 Latest Caselaw 2215 Del

                                 UNREPORTABLE

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                               W.P.(C) No. 6053 of 2001

                                              Reserved on : April 30, 2009
%                                            Pronounced on : May 22, 2009.

Shir P.S. Vasudeva                                                 . . . Petitioner
                   through :                 Mr. B.L. Babbar, Advocate.

                                  VERSUS
Union of India & Others.                                       . . . Respondents
                     through                 Mr. Sanjay Katyal, Advocate for the
                                             UOI.
                                             Mr. K.G. Seth, Advocate for the
                                             respondent No. 4.

CORAM :-
   THE HON'BLE MR. JUSTICE A.K. SIKRI
   THE HON'BLE MR. JUSTICE SURESH KAIT

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. OA No. 973/1998 filed by the petitioner challenging the promotion of

the respondent No. 4 against SC Vacancy in the Grade of Assistant

Foreman has been dismissed by the learned Tribunal vide its

judgment dated 29.09.2000. The petitioner had even sought the

review of the said judgment, but the Review Petition also met the

same fate as it was dismissed on 19.02.2001. Orders dated 19.02.2001

passed in the review application has been assailed in the present writ

petition and it is sought that the promotion of the respondent No. 4

to the post of Chargeman Grade- I w.e.f. 15.09.1981, Assistant

Foreman w.e.f. 15.09.1983 and Foreman w.e.f. 15.09.1986 given by the

Review DPC held on 21.03.1996, be declared void ab initio.

Consequential prayer is made that the petitioner be considered for

the promotion to the aforesaid post from the respective dates.

2. The dispute between the petitioner and the respondent No. 4 has the

following history:

3. The petitioner was initially appointed in INMAS, which comes under

the Ministry of Defence, as Mechanist in the year 1962. He was

promoted to the post of Instrument Mechanist in the year 1963 and

thereafter Precision Mechanic in 1968 and Chargeman Grade I on

15.09.1981 and Assistant Foreman on 27.11.1991. He retired from

service, on attaining the age of superannuation on 31.05.1988. The

petitioner states that he was senior to the respondent No. 4 as well as

one other person Shri Khem Chand who also belonged to the SC

category in the seniority list, which was issued in the year 1996. In the

seniority list, name of the petitioner figured at Sl. No. 2 and the

respondent No. 4 was at Sl. No. 5. One Shri Zile Singh was above the

petitioner. It was because of the reason that as Chargeman Grade I,

Zile Singh was promoted on 16.03.1981, the petitioner on 15.09.1981

and Shri Khem Chand on 15.03.1988. Zile Singh got further

promotion as Assistant Foreman on 15.09.1983 and Foreman w.e.f.

15.09.1986. Thus in 1993, the petitioner was working as Assistant

Foreman, Shri Zile Singh as Foreman and the respondent No. 4 was

still working as sChargeman Grade II.

4. Dispute between the parties triggered on the implementation of

judgment of the Bangalore Bench of the Central Administrative

Tribunal rendered on 06.04.1993 in OA No. 600/1991. This OA was

filed by Precision Mechanics of DRDO Establishment, Bangalore. In

that judgment, the Tribunal ordered preparation of a combine

Seniority List of Precision Mechanic and Chargeman Grade II as on

12.09.1981 vide SRO No. 246/1981 and directed to hold a Review

DPC for vacancies available after 12.09.1981 upto 28.01.1992 to the

post of Chargeman Grade I and above. While implementing the

judgment a Review DPC was held on 21.03.1996. Shri Khem Chand

was shown to have been promoted on 15.09.1981 as Chargeman

Grade I, 15.09.1983 as Assistant Foreman, 15.09.1986 as Foreman

against SC vacancy.

According to the petitioner, the respondent No. 4 could not be

accommodated against SC vacancy as it had already been filled up by

Mr. Zile Singh as Chargeman Grade-I on 16.03.1981. The Review

DPC wrongly promoted the respondent No. 4 as Chargeman Grade I

w.e.f. 15.09.1981 removing the name of Mr. Zile Singh. It was also

submitted that since Mr. Zile Singh had already retired in August

1995, he was shown and given the placement as Chargeman Grade I

on 15.09.1981 by Review DPC, whereas his position was not disputed

at all as he was already promoted as Chargeman Grade I on

16.03.1981.

5. Challenging the aforesaid promotions given to the respondent No. 4

on the basis of Review DPC, the petitioner filed aforementioned OA.

His contentions have, however, not been accepted by the learned

Tribunal. The Tribunal in this behalf noted that though Shri Zile

Singh being an SC candidate was promoted to the post of Chargeman

Grade I w.e.f. 15.09.1981, revision of the seniority on the basis of

judgment given by Bangalore Bench of CAT, it was found that Mr.

Zile Singh was ineligible for promotion. As a result, he could not

have been promoted to the Grade I, since it was a Scheduled Caste

point. Next person, viz., the respondent No. 4 was considered against

this SC point and was rightly promoted. It was stated that the

respondent No. 4 had been considered for promotion to the grade of

Assistant Foreman against the carry forward vacancies as per the

then applicable rules.

6. Accepting the contention of the respondents, the Tribunal noted that

when Mr. Zile Singh was given the benefit of reservation as SC

candidate, the petitioner had not challenged the same. Therefore, he

could not question the validity of reserving that point against SC

vacancy. However, promotion of Mr. Zile Singh was set aside

because of the judgment passed by Bangalore Bench of CAT and

Review DPC was constituted, which found Mr. Zile Singh as

ineligible for promotion. Thus, as the post could have only been

filled by an SC candidate as per roster point and the respondent No. 4

was eligible to hold the post, department was right in looking

forward for an eligible SC candidate to man that post.

7. The contention of the petitioner is that the reservation was post wise

and not vacancy wise, was turned down on the ground that the

judgment of Supreme Court in the case of R.K. Sabharwal & Ors. Vs.

State of Punjab, JT 1995 (2) SC 351 was prospective in nature, i.e., it

was to be given effect from the date of decision as per the direction in

the said judgment itself and it is not applicable to the promotions

made in the years 1981-85. Another contention of the petitioner that

there could not be reservation on a single post, was also turned down

by the Tribunal on the ground that this was also not applicable when

the respondent No. 4 was appointed against the carry-forward

vacancy. The Tribunal in this behalf relied upon the judgment of the

Supreme Court in the case of Shri Suresh Chand Vs. Shri J.B.

Agarwal and Others, JT 1997 (S) SC 72, wherein the Court held as

under:

"This Court has considered the entire case law in Union of India & Another Vs. Madhav (JT 1996 (9) SC 920). The Bench of three Judges, which both of us were members, held that in case of olitary isolated post on the basis of the rule of rotation, the benefits and facilities should be extended to the reserved candidates, namely, Scheduled Cases (sic. Castes) and Schedules (sic. Scheduled) Tribes for appointment by promotion to the single post and, therefore, application of the rules of reservation is not unconstitutional."

8. Before us, the contentions of the learned counsel for the petitioner

remained the same and it was strongly argued that the Tribunal did

not deal with those contentions appropriately. The learned Tribunal

reiterated that since Mr. Zile Singh was promoted on 16.03.1981

against the SC vacancy, this SC post had been consumed inasmuch

could have been as aforesaid promotion of Mr. Zile Singh was not

withdrawn. Thus against the same Roster Point, the respondent No.

4 could not have been considered. The contention is that there was

only one post of Assistant Foreman, which was held by Mr. Zile

Singh at the relevant point of time, i.e., on 15.09.1983, which he

vacated only on 15.09.1986. It could not have been treated as

reserved. It was also argued that the Tribunal fell in error by being

influenced from the fact that the petitioner had not challenged the

promotion of Mr. Zile Singh to the Assistant Foreman. According to

the petitioner, he could not have done so as Mr. Zile Singh was much

senior to him. It was, however, argued that the Tribunal also

wrongly held that Central Administrative Tribunal, Bengalore Bench

had set aside the promotion of Mr. Zile Singh and Review DPC was

constituted and Mr. Zile Singh was found ineligible to be promoted

to the post to which he had been promoted as an SC candidate. This

position is stated to be factually incorrect as Mr. Zile Singh was not

even a party in that OA and he had already been promoted as

Chargeman Grade I and above against vacancies available after

12.09.1981 to 28.01.1992, considered by the Review DPC. Learned

counsel argued that this was for the reason that after 28.01.1992 Zile

Singh was no longer eligible for promotion as Chargeman Grade I.

The Tribunal's decision also that Review DPC found Sh. Zile Singh

ineligible to be promoted to the post of Chargeman Grade I as an SC

candidate and therefore they had gone up to Mr. Khem Chand to

promote him is again a wrong averment. The decision of 28th

September, 1992 of Senior Administrative Officer to the Director

(copy enclosed) clearly shows that DPC after decentralization was

held on 15.03.1981 when one Sh. R.K. Bhattacharya (UR), Sh. Zile

Singh (SC) were promoted. In second DPC the meeting was held on

15.09.1981 in which Sh. M.L. Bedi (UR), Sh. P.S. Vasudeva (petitioner)

were promoted as Chargeman Grade I. Even if the contention with

respect to Sh. Zile Singh is accepted the issue with respect to post of

Assistant Foreman being a single post in the cadre whether same can

be reserved has to be decided. The petitioner had relied upon the

Judgment in the case of Dr. Chakradhar Paswwan Vs. State of Bihar,

1988 Vol. II SCC 214, the Tribunal suo motu relied upon the judgment

of Sureh Chardra (supra) and the case of Union of India Vs. Madhu,

JT 1996 Vol. 9 SC 90, which judgment stands overruled in a review

petition in the matter of Post Graduate Institute of Medical

Education and Research Vs. Faculty Association and Ors. JT 1998

Vol. III SC 223, which judgment has been again followed by the three

Judge Bench in the matter of S.R. Murthy Vs. State of Karnataka and

Ors. 1999 (Vol. IX AD SC 10. In these judgments, the Supreme Court

has held that a single post cadre reservation at any point of time on

account of rotation or roster is bound to bring about a situation

where such single post in the cadre will be kept reserved exclusively

for the members of backward classes and in total exclusion of general

members of the public. As such total exclusion of general members

of the public and 100% reservation for the backward classes is not

permitted even within the constitutional framework. If these two

judgments are to be followed then the respondent No. 4 could not

have got the promotion as Assistant Foreman under the SC category.

The petitioner being senior to him as Chargeman Grade I, he would

have been entitled to promotion as Assistant Foreman and thereafter

Foreman. In the case of Post Graduate Institute of Medical

Education (supra), the Supreme Court has again affirmed

Chakradhar Paswan's case.

9. It is difficult to accept the aforesaid submissions of the learned

counsel for the petitioner. It cannot be disputed that the Bangalore

Bench of the CAT had given directions vide its judgment dated

06.04.1993 for preparation of a Combined Seniority List of both the

categories of Industrial and Non-industrial (Technical Categories)

and to convene the Review DPC on that basis. Precise direction in

this behalf are in the following terms:

"10. In the light of the position expounded as above and in consonance with the decision of the Supreme Court referred to supra, we direct that the Department should convene a review DPC as per the orders then in force and consider the suitability of the applicants for regular appointment as Chargeman Gr. I and above with effect from the date they became eligible on the lines of the action taken in similarly situated cases in LRDE of Defence and Research Development Organization, Bangalore. In the absence of separate quotas for the industrial and non-industrial (Technical) categories, there is need for preparation of a combined seniority list of both the categories. Such a seniority list should be prepared on the basis of rational and objective principles for promotion to the level of Chargeman Gr. I and above in respect of vacancies which arose prior to 26.1.92 and which will be available after 12.9.81 to Precision Mechanics in the scale of Rs.425-700 with three years' service. No costs."

10.It is explained by the respondents that to implement the directions of

the learned Tribunal, Combined Seniority Lists of Chargeman Grade

II and Precision Mechanics, based on the principle that all

Chargeman Grade II existing on 12.09.1981, i.e., the date of

publication of SRO 246/81, through which the Precision Mechanics in

the pay scale of Rs.425-700 (pre-revised) with three years' regular

service in the grade were made eligible for promotion to the grade of

Chargeman-I, will rank en bloc senior to Precision Mechanics.

Accordingly, the concerned establishments prepared the combined

seniority list and based on eligibility and the availability of vacancies

those figuring in the seniority list have been promoted as

Chargeman-I and above. Shri Zile Singh, the erstwhile Supervisor

Technical Grade II redesignated as Chargeman Grade II, figuring in

the seniority list became ineligible to be promoted as Chargeman-I as

his seniority in the grade of Chargeman Grade II meanwhile been

refixed as 15.12.1979 in accordance with the office letter No.

93789/PM/RD/Pers-1 dated 16.02.1993 . Since he could not

complete the residency period as per rules, his promotion as

Chargeman Grade I had to be postponed from 15.03.1981 to

15.03.1988 in the Review DPC. Shri Khem Chand who was promoted

as Precision Mechanic w.e.f. 01.03.1977, completed his residency

period of three years in the pay scale of Rs. 425-700 and became

eligible to be considered for promotion to the grade of Chargeman

Grade I w.e.f. 15.03.1981.

11.Similar issue had come for consideration before the Bombay Bench of

the Tribunal as well in OA No. 324/1988 titled Shri Mathew Philip &

Others. Vs. Union of India & Ors., which was decided on 07.02.1992.

12.Once we proceed on the basis that Mr. Zile Singh, who was promoted

earlier as Chargeman Grade-I became ineligible for consideration to

the said post, while implementing the judgment of the Bangalore

Bench, the Review DPC was duty bound to ignore the candidature of

Mr. Zile Singh. Mr. Zile Singh was admittedly considered and

promoted as Chargeman Grade-I earlier being an SC candidate as the

said Roster Point was meant for SC category. Thus, Mr. Zile Singh

was not thrown out of the consideration illegally as alleged by the

petitioner. Rather he was not eligible to be considered for promotion

as Chargeman Grade-I. Since it was an SC Point, the respondent No.

4 who was the next SC candidate and eligible in all respects had to be

considered for promotion as Chargeman Grade-I. The DPC after

consideration found him fit for promotion and he was accordingly

promoted as Chargeman Grade -I w.e.f. 15.09.1981.

13.Insofar as promotion of the respondent No. 4 to the post of Assistant

Foreman is concerned, the only contention is that single vacancy

could not have been reserved. Learned counsel for the official

respondent produced the original Roster Register to show that there

were more vacancies shown therein and it was not a single point

Roster. That apart even otherwise, in the argument advanced by the

petitioner, what is lost sight is that this vacancy was a carry forward

vacancy of previous year. As per the mandatory provision on

reservation, a single vacancy is to be treated as unreserved only in the

initial recruitment year. However, the reservation is to be carried

forward to subsequent three recruitment years. In the subsequent

recruitment years, even if there is only one vacancy, it should be

treated as reserved against the carried forward vacancy from the

initial recruitment year and a SC/ST candidate, if available, is to be

appointed even if it is the only vacancy in that recruitment year. In

this case, the single vacancy in the grade of Assistant Foreman on

15.09.1983 was a carried forward vacancy from the previous year.

Since Shri Khem Chand was the senior most SC candidate available,

he was promoted against this vacancy.

14.The Tribunal has, according to us, rightly decided this issue referring

to the Judgment of the Supreme Court in the case of Suresh Chand

(supra). In this conspectus, judgments referred to by the learned

counsel for the petitioner would have no application.

15.We thus find no merit in the writ petition, which is accordingly

dismissed. No costs.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE May 22 , 2009.

pmc