Delhi High Court
Union Of India And Others vs Ramesh Chander on 7 October, 2009
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) Nos.628-630/2006
% Date of Decision: 07.10.2009
Union of India and others .... Petitioners
Through Mr.Kumar Rajesh Singh, Advocate
Versus
Ramesh Chander .... Respondent
Through Mr.V.K. Ojha and Mr.A.K. Trivedi,
Advocates.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J. (ORAL)
*
1. The petitioner has challenged the order dated 2nd August, 2005
passed by the Central Administrative Tribunal in OA No.2509 of 2004
titled Ramesh Chander v. Union of India and Others directing the
petitioner to declare the result of selection for the year 2000 for one
post of SWMI Grade 6500-10500/- and consider the respondent as
applicant in the Scheduled Castes category for the promotion though
the promotion post was reserved for ST category.
2. Brief facts to comprehend the controversies are that for filling up
one post of SWMI Grade 6500-10500 which was reserved for the ST
category selection was done in the year 2000. The written test was held
on 28th July, 2000, however, no ST candidate was available in the
feeder cadre, i.e., SWMI Grade 5000-9000/-.
3. The respondent was a candidate under the category of Scheduled
Caste in the feeder cadre. The petitioner was called to appear in the
written test and he qualified the written test and subsequently the viva
voce was held on 25th August, 2000.
4. According to the petitioner, a proposal for obtaining de-
reservation of post was sent to Railway Board, however, the de-
reservation of the post in the category of Schedule Tribe was declined.
The respondent also made representations that he is entitled for
consideration as schedule caste candidate for the post which is reserved
for Schedule Tribe which were, however, not considered and replied.
5. That aggrieved by the action of the petitioner not to consider the
respondent, a candidate from the Scheduled Caste category, for the post
of the Scheduled Tribe as no candidate belonging to Scheduled Tribe
was available, the respondent filed the petition before the Central
Administrative Tribunal contending inter alia that as per departmental
instructions on reservation and concession in promotions, the
respondent, belonging to the category of Schedule Caste, should have
been considered for appointment against the vacancy in the category of
Scheduled Tribe as no other candidate was available in the Schedule
Tribe Category and that for appointment of a candidate belonging to
Scheduled Caste category for a post in the category of Scheduled Tribes,
de-reservation was not necessary.
6. The Tribunal after considering the contentions of the parties and
relying on relevant instructions contemplating that the reserved
vacancies continued to be reserved for the respective categories,
however, an employee belonging to Scheduled Caste category may be
considered for appointment against a vacancy reserved for Schedule
Tribe in the same year in which the reservation is made, allowed the
petitioner.
7. The instructions in this regard also contemplated that if owing to
non-availability of suitable candidates belonging to Schedule Castes or
Scheduled Tribes, as the case may be, and if it may become necessary
to de-reserve a reserved vacancy, a reference should be made to the
Department of Personnel and Training for de-reservation. These
instructions however, did not contemplate the same for consideration of
candidates for reserved category.
8. The petitioner has impugned the order of the Tribunal relying on
a notification of Ministry of Railways dated 11th May, 1999 contending
inter alia that a post reserved for one category could be de-reserved only
by the Railway Board and that too only when it was absolutely
necessary and justified on the ground of safety of train operations,
achievement of production target etc. According to the petitioners, the
request for de-reservation to the Railway Board was declined and
consequently the respondent who was an applicant under the Schedule
Caste category could not be considered for promotion to a post which
was reserved for Scheduled Tribe category.
9. After hearing the learned counsel for the parties and perusing the
petition, counter affidavit and the documents, it is apparent that the
Ministry of Railways' order dated 11th May, 1999 does not contemplate
that a candidate in the category of Scheduled Castes cannot be
considered for promotion/appointment to a post reserved for Schedule
Tribe category without de-reservation of the Schedule Tribe post by the
Railway Board, if no scheduled Tribe candidate is available. The said
order dated 11th May, 1999 rather deals with the eventuality of non-
availability of Scheduled Caste and Scheduled Tribe candidates and in
that case for de-reservation of the post considered absolutely necessary
and justified on the ground of safety of train operations, achievement of
production target etc. The said order also contemplated that where the
work of such important/urgent nature then that reserved post could
not be kept vacant, then ad hoc promotions for specific periods should
be considered by the appropriate authority.
10. The order/instructions dated 11th May, 1999 do not lay down in
any manner that a candidate in the category of Schedule Cates cannot
be considered for promotion to the post reserved for Schedule Tribe
candidate, on no Scheduled Tribe candidate being available without de-
reservation of such a post in the category of Schedule Tribe. Rather
the appropriate instructions pertaining to reservations and concessions
in promotions categorically lays down that a Schedule Caste officer may
be considered for promotion against a vacancy for Schedule Tribe on
the reserved vacancy being not filled in the same year. The relevant
instructions 5 and 6 are as under:-
"(5) While reserved vacancies will continue to be reserved for
the respective community only, an SC officer may also be
considered for appointment against a vacancy reserved for ST or
vice versa, in the same year itself in which the reservation is
made, when the appropriate reserve vacancy could not be filled by
an SC or an ST candidate, as the case may be.
(6) If owing to non-availability of suitable candidates belonging
to SCs or STs, as the case may be, it becomes necessary to
dereserve a reserved vacancy, a reference should be made to the
Department of Personnel and Training indicating that claims of
SC/ST candidates eligible for promotion in reserved vacancies
have been duly considered as laid down above. On dereservation
being agreed to, the reserved vacancies can be filled by other
candidates, subject to carry forward of reservation for three
recruitment years."
11. In the circumstances, the decision of the Central Administrative
Tribunal directing the petitioners to declare the result of selection for
the year 2000 for one post of SWMI Grade 6500-10500 and to consider
the respondent as a Schedule Caste candidate for the post reserved for
Schedule Tribe candidate on no Scheduled Tribe candidate being
available and to promote him to that post cannot be faulted in the facts
and circumstances. Therefore, for the foregoing reasons, the decision of
the Central Administrative Tribunal in OA No.2059 of 2004 dated 2nd
August, 2005 in the matter Ramesh Chander v. Union of India and
others cannot be faulted and is not liable to be set aside.
12. The writ petition is, therefore, without any merit and it is
dismissed. Considering the facts and circumstances, the parties are left
to bear their own costs. Learned counsel for the petitioners have stated
on instructions that the decision of the Tribunal directing the petitioner
to declare the result of selection for the year 2000 for the one post of
SWMI Grade 6500-10500 for promotion to the post of Scheduled Tribe
has already been implemented.
ANIL KUMAR, J.
OCTOBER 07, 2009 VIPIN SANGHI, J.
'Dev'
