Subhash Chander vs Union Of India And Ors.
2010 Latest Caselaw 1075 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.13000/2009

%                Date of Decision: 24th February, 2010



       SUBHASH CHANDER                              ..... Petitioner
                    Through:            Mr. R.K. Shukla, Advocate


                        versus


       UNION OF INDIA AND ORS.                     ..... Respondents
                       Through:         Ms. Raman Oberoi, Advocate for
                                        respondent nos.1 to 3



       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE VIPIN SANGHI

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?           :             Yes
       2. To be referred to Reporter or not?               :      Yes
       3. Whether the judgment should be reported
          in the Digest?                                   :      Yes

%                                JUDGMENT (Oral)

GITA MITTAL, J.

1. By this writ petition the petitioner assails the action of

respondents in denying him consideration and promotion to the post

of Assistant Commandant with the Indo Tibetan Border Police. There

is no dispute to the material facts giving rise to the present petition.

The petitioner was appointed as a Sub-Inspector/Stenographer with

the respondents in the year 1989. He was promoted to the post of

Inspector/Stenographer in the year 1995 and thereafter in August,

2007 he was granted a special appointment in view of the fact that he

was senior most in the grade of Inspector/Stenographer and also fit

for appointment. Consequently, he was appointed as a Subedar

Major/ Stenographer.

2. It is contended that as per the applicable and relevant

recruitment rules, an Inspector/Steno (General) with five years

continuous service in the grade of Inspector is rendered eligible for

consideration for the post of Assistant Commandant (Staff Officer).

The petitioner has further submitted that in case an Inspector/

Stenographer (General) has been appointed to the post of Subedar

Major, there is no requirement of total number of years of service to

render him eligible for promotion to the post of Assistant

Commandant.

3. The present case is concerned with the appointment to the

single vacancy in the year 2007 of the post of Assistant Commandant

which was in the reserved category. It is not disputed that there was

only a single vacancy in the reserved category which was available

for promotion and appointment to the post of Assistant Commandant

in the year 2007.

4. It is further admitted position that as per the combined

seniority list of general and reserved category candidates for the post

of Assistant Commandant (Staff Officer) the petitioner was at serial

no.7 of the same. However, so far as the seniority vis-à-vis the

reserved category candidates are concerned, the petitioner was

admittedly placed at the top of the list at serial no.1.

5. The only issue urged before us relates to the question as to

whether there has to be a separate zone of consideration for reserved

SC/ST categories. Learned counsel for the petitioner has contended

that the respondents failed to prepare a separate seniority list of the

SC/ST candidates as against the general category candidates. He

submits that the respondents have prepared a combined list for the

zone of consideration of all eligible candidates; that thereby they

have consequently treated the petitioner as falling at serial No.7 and

thereby denied him consideration for promotion to the post of

Assistant Commandant (Staff Officer) even against the vacancy for

the reserved category.

6. Appearing for the respondents Ms. Oberoi, learned counsel

for the respondents has vehemently contended that as per the

applicable rules and regulations, the respondents are required to

prepare a combined seniority list for the purposes of consideration for

promotion even to a vacancy of a reserved post which is to be placed

before the Departmental Promotion Committee (DPC) for

consideration. It has been contended that the petitioner being at

serial no.7 of such list did not fall within the zone of consideration of

eligible candidates, which was being considered by the DPC held on

02nd November, 2007 for the vacancy to the reserved post of

Assistant Commandant (Staff Officer).

7. We have heard learned counsels for the parties. Our

attention has been drawn to the response which was filed by the

respondents to the complaint made by the petitioner before the

National Commission for Scheduled Castes and Scheduled Tribes. In

the response dated 25.04.2008, the respondents had stated that two

DPCs were held separately i.e. for the years 2006-07 and 2007-08.

The respondents have clearly admitted that one vacancy of Assistant

Commandant (Staff Officer) which fell at point no.7 of the 01 st cycle

was reserved for the Scheduled Castes category and that the same

was required to be filled from within the normal/extended zone of 05

incumbents in the feeder grade as per DoP&T instructions contained

in their O.M. No.22011/1/90-Estt (D) dated 22-04-1992 as normal as

well as extended zone of consideration for SC/ST category is 05 only.

The respondents have taken a further stand that no SC/ST candidate

was available in the normal/extended zone of consideration. It was

also stated before the commission that consequently the respondents

had no option but to seek de-reservation of the single reserved

vacancy to fill up the same by a general category candidate.

8. Mr. Shukla, learned counsel for the petitioner, however, has

drawn our attention to the OM dated 25.04.1989 which provides the

procedure to be followed where promotions are to be made on the

basis of seniority subject to fitness in respect of reserved categories

of candidates. This office memorandum has been relied upon by the

respondents and stands placed by them along with their reply. The

relevant portion of this office memorandum dated 25.04.1989 reads

as follows:

"C. Promotions on the basis of seniority subject to fitness:

There will be reservation at 15 per cent for Scheduled Castes and 7½ per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fitness, in appointments to all Class I, Class II and Class IV posts in grades or services in which the element of direct recruitment, if any, does not exceed 75 per cent.

The procedure to be followed where promotions are made on the basis of seniority subject to fitness has been laid down in Paragraph 1B of Ministry of Home Affairs, O.M. No.1/9/58-R.P.S., dated the 16th May, 1959, which provides that in such cases a decision has to be taken on the suitability of each individual officer for such promotion although there is no need for a comparative evaluation of their respective merits and that decision on the fitness or the unfitness of any officer for promotion should be taken by the Departmental Promotion Committee instead of by an individual officer. While, therefore, referring proposals to the Departmental Promotion Committee for promotion on the basis of seniority subject to fitness in respect of vacancies expected to arise during a year, the following procedures may be followed to give effect to the decision mentioned in paragraph above: -

              (i)       ***

              (ii)      Wherever according to the points in the

roster there are any vacancies reserved for Scheduled Castes and Scheduled Tribes, separate lists should be drawn up of the eligible Scheduled Castes or the Scheduled Tribes Officers, as the case may be, arranged in order of their inter se seniority in the main list.

(iii) The Scheduled Castes and Scheduled Tribes Officers should be adjudged by the Departmental Promotion Committee separately in regard to their fitness.

(iv) When the Select Lists of officers in the general category and those belonging to Scheduled Castes and Scheduled Tribes have been prepared by the Departmental Promotion Committee, these should be merged into a combined Select List in which the names of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, are arranged in the order of their inter se seniority in the original seniority list of the category or grade from which the promotion is being made. This combined select list should thereafter be followed for making promotions in vacancies as and when they arise during the year.

(v) The select list thus prepared would normally be operative for a period of one year, but this period may be extended by six months to enable such of the officers included therein, as could not be appointed to the higher posts during the normal period of one year, to be appointed during the extended period.

(vi) (Not Printed)."

9. It is admitted before us that so far the single vacant post in

2007 of Assistant Commandant, which was admittedly in the reserved

category was concerned, the respondents did not prepare separate

list of eligible Scheduled Castes officers for consideration by the

Departmental Promotion Committee, which was to consider and

recommend selection of candidates was prepared in terms of the said

OM dated 25.04.1989. No such list was placed before the DPC which

held its proceedings on 02nd November, 2007. On the contrary the

respondents have admittedly considered eligibility of Scheduled

Castes candidates as per the seniority in the combined seniority list

and have thereby violated the specific requirement stipulated by the

office memorandum dated 25.04.1989.

10. A similar issue as has been raised before us as well as an

identical stand of the respondents arose for consideration before this

Court in W.P.(C) No.356/2008 entitled "Union of India & Ors. v.

Gopal Meena & Ors.". This writ petition was filed by the Union of

India assailing adjudication by the Central Administrative Tribunal

dated 19th October, 2005. The Tribunal had placed reliance on

judgments of the Supreme Court and opined that the mandate of the

Supreme Court was that there has to be a separate zone of

consideration for SC/ST candidates and clubbing these categories

with the general category for the purposes of preparation of zone of

consideration was not permissible and it was anti-thesis to the very

object of reservation. This Court had, by a detailed judgment and

pronouncement on 23rd April, 2009, upheld the afore-noticed views of

the Tribunal and had rejected the challenge to the decision by the

judgment of the Division Bench pronounced on 23.04.2009.

11. Our attention is drawn to a decision dated 23rd November,

1994 passed by the Apex Court in C.A. No.4026/1998 "U.P. Rajya

Vidyut Parishad SC/ST Karamchari Kalyan Sangh v. U.P. State

Electricity Board & Ors.", wherein the Apex Court has held as

follows:

"7. First judgment is in the case of U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh v. U.P. State Electricity Board & Ors. CA No.4026 of 1998 decided on 23.11.1994. The operative portion of the said judgment is as under:

"We concluded the arguments in this case on November 18, 1994 and passed the following order:

"We have concluded the hearing of argument. We are prima facie in agreement with the contention of the learned counsel for the appellant that there has to be a separate zone for consideration so far as SC/ST candidates are concerned. Clubbing in the same zone of consideration would defeat the very purpose of reservation. Mr. M.D. Sen, learned senior counsel appearing for the Board, states that he would like to place the matter before the Board and seek further instructions from the Board.""

12. This very issue again arose before the Apex Court in SLP (C)

No.14568-69/1995 entitled C.D. Bhatia v. Union of India, which

was decided on 20th October, 2005 by the Apex Court in the following

terms:

"We have heard learned counsel for the parties. Learned counsel for the petitioners has raised only one contention to the effect that there has to be separate zone for consideration so far as SC/ST candidates are concerned. According to him, clubbing the schedule caste with the general category in the case of zone of consideration would

defeat the very purpose of reservations. He relies of this Court‟s Judgment in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh vs. U.P. State Electricity Board & Ors. (CA No.4026/88) decided on November 23, 1994. This precise point was not raised before the Tribunal. The point was sought to be raised in a review petition but the Tribunal did not permit the same to be raised at that stage. We see no ground to interfere with the impugned judgment of the Tribunal.

We are, however, of the view that the law laid down by this Court in U.P. Rajya Vidyut Parishad‟s case is binding on all the authorities including the Union of India. The petitioner may, if so advised, approach the Government seeking enforcement of the law laid down by this Court. Special Leave petitions are disposed of."

13. We find that in para 13 of the Gopal Meena‟s case (supra)

the Court has relied also on a decision dated 07th September, 2000

passed in C.A. No.1194/1992 "Basudeo Anil v. Union of India",

wherein the Apex Court has categorically maintained that a separate

zone of consideration has to be prepared for SC/ST and general

category candidates. It is noteworthy that all these pronouncements

have been relied upon by the Division Bench while deciding Union of

India v. Gopal Meena‟s case (supra).

14. In view of the clear enunciation of law by the Apex Court

followed by this court in Union of India v. G.S. Meena (supra) and

the unambiguous stipulations made in the O.M. dated 25th April, 1989,

which is relied upon by the respondents before us, we have no

manner of doubt that the respondents were bound to maintain a

separate zone of consideration so far as the eligibility and

consideration of Scheduled Castes candidates for promotion to the

reserved post of Assistant Commandant were concerned. It was such

Scheduled Castes candidates who fell in such zone of consideration

alone who could have been considered by the Departmental

Promotion Committee which considered eligible candidates for

promotion to the single vacant reserved post of the Assistant

Commandant in the year 2007. In the light of the above discussion,

the petitioner was clearly at the top of such list and was entitled to

consideration for promotion.

15. The respondents have placed the original minutes of the

Group „A‟ DPC meeting held on 02nd November, 2007 to consider

promotion of Subedar Major/Inspector (Stenographer) to the rank of

Assistant Commandant (Staff Officer). In para 3 of its proceedings the

DPC has noted as follows:

"3. As this is promotion from Group-„B‟ (Non-Gazetted) to Group-"A" (Gazetted) post, reservation order are applicable. As per post based Roster vacancy is reserved for SC category falling at point No.7 of 1st cycle. As per DoP&T instruction on the subject normal zone and extend zone (for SC/ST) is five only. However, there is no SC candidate available in this zone of consideration. Accordingly, the vacancy has been got de-reserved for filling up the same from General Category candidate."

16. The petitioner has pointed out that after treating the post as

unreserved post, the respondents proceeded to appointment of

respondent No.4, Sh. F.S. Rana to the post of Assistant Commandant

(Staff Officer) pertaining to the recommendations of the DPC held on

02nd November, 2007. The petitioner has assailed the promotion of

the respondent no.4 to such post and for this reason we had issued

notice to show cause to the respondent no.4 as well. A statement has

been made before us that respondent no.4, Sh. F.S. Rana, has

superannuated from service on 31st December, 2009.

17. The respondents failure to prepare such separate select list

is legally unsustainable and untenable.

18. Based on such omission, it appears from the minutes of the

DPC, which have been placed before us that no Scheduled Caste

candidate has been considered for promotion to the post of Assistant

Commandant despite the vacancy being for a reserved category even

though candidate were eligible and available for consideration.

19. The action of the respondents is totally opposed to the spirit

and ethos of reservations which applies to the promotion and

appointment which are to be made by the respondents to the post of

Assistant Commandant.

20. In view of the clear enunciation of the applicable legal

principles and the binding procedure which the respondents were

bound to follow as has been laid down in the office memorandum

afore-stated, this writ petition has to be allowed.

21. Accordingly, it is directed that the respondents shall hold a

review DPC for consideration of the petitioner for promotion to the

rank of Assistant Commandant (Staff Officer) for the vacancy which

arose in 2007 within a period of four weeks from today. If the DPC

finds the petitioner fit for promotion, he shall be entitled to seniority

in the rank of Assistant Commandant (Staff Officer) and financial

benefits w.e.f. the date on which he would have been selected to the

post of Assistant Commandant (Staff Officer), if he had been

considered by the DPC held on 02nd November, 2007. The petitioner

shall also be entitled to costs of Rs.15,000/-.

22. This writ petition is allowed in the above terms.

GITA MITTAL, J.

VIPIN SANGHI, J.

FEBRUARY 24, 2010 rsk