Delhi High Court
Sh.Jai Ram vs Union Of India & Others on 12 May, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3255/2010
% Date of Decision: 12.05.2010
Sh.Jai Ram .... Petitioner
Through Mr.Ranbir Yadav, Advocate.
Versus
Union of India & others .... Respondents
Through Mr.M.K.Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
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 NO
in the Digest?
ANIL KUMAR, J.
*
The petitioner has impugned the order dated 23rd April, 2010
passed by the Central Administrative Tribunal, Principal Bench, New
Delhi in O.A.No.2422 of 2009, titled as 'Sh.Jai Ram v. Union of India &
others', dismissing his petition seeking to set aside the orders dated
19th August, 2009 and 21st August, 2009 and restoration of the
petitioner to the post of Senior Pharmacist with all consequential
benefits.
The petitioner had contended that he belongs to Scheduled Caste
Category and he was appointed against the post of Pharmacist and had
joined the Lady Harding Medical College & Associate Hospitals. He was
appointed in 1992 vide Office Order dated 7th September, 1992 on
regular basis.
Respondent No.4, Sh.Satish Kumar Gaur was also working as
Pharmacist and he was promoted as Senior Pharmacist on 2nd May,
1996. When respondent no.4 was promoted, a representation was made
by the petitioner that since he belongs to Schedule Caste Category, he
is entitled to promotion for the post of Senior Pharmacist (1 post only)
as he is a Scheduled Caste candidate.
Consequent to the representation made by the petitioner, a
Review DPC was convened which recommended the name of the
petitioner for promotion as Senior Pharmacist in Scheduled Caste
Category although there was only one post and the policy of roster for
reservation category could not be applied to the said post. The
petitioner was however, promoted by order dated 6th February, 1997
with retrospective effect from 2nd May, 1996 and Sh.Satish Kumar
Gaur, respondent no.4 was reverted to the post of Pharmacist from the
post of Senior Pharmacist.
Later on, on a representation by the respondent No.4, Sh.Satish
Kumar Gaur, another Review DPC was held on 15th September, 2008
which recommended the name of respondent No.4 for promotion, as it
was held that the promotion of the petitioner under reserve category
was erroneous, as no reservation could be implemented in respect of
single post. Since Sh.Satish Kumar Gaur was the senior most
Pharmacist, therefore, he was entitled for promotion as Senior
Pharmacist as per rules and thus, the order for reversion of the
petitioner to the post of Pharmacist and promotion of respondent No.4
to the post of Senior Pharmacist was passed on 6th October, 2008.
The order dated 6th October, 2008 was challenged in an earlier
O.A.No.2214 of 2008, which was allowed by the Tribunal by order dated
17th April, 2009 as the order dated 6th October, 2008 reverting the
petitioner was passed without giving any opportunity to him. The
respondents, however, were given opportunity to pass appropriate order
after giving a reasonable opportunity to the petitioner.
Consequently, a show cause notice dated 25th June, 2009 was
issued to the petitioner, and thereafter order dated 19th August, 2009
was passed reverting the petitioner from the post of Senior Pharmacist
to the post of Pharmacist, which was challenged by the petitioner filing
the O.A.No.2422 of 2009, which was dismissed by order dated 23rd
April, 2009, which is challenged before this Court in the present writ
petition.
The petitioner before the Tribunal had challenged his order of
reversion dated 19th August, 2009 on the ground that his reversion
after a long lapse of time was not permissible and post was based on
roster in reservation which was introduced later on, an earlier settled
case of vacancy based roster could not be reopened.
The Tribunal noticed the respective contentions and held that the
post of Senior Pharmacist was a single post and noticing the minutes of
the Review DPC held on 6th February, 1997 and relying on
'Dr.Chakradhar Paswan v. State of Bihar and Others, 1988 SCC (L& S)
516; Bhide Girls Education Society v. Education Officer, Zila Parishad,
Nagar and Others, 1994 SCC (L & S) 78; Post Graduate Institute of
Medical Education and Research, Chandigarh v. Faculty Association
and Others, JT 1998 (3) SC 223; Balbir Kaur and Another v. Uttar
Pradesh Secondary Education Services Selection Board, Allahabad and
Others, (2008) 12 SCC 1 it was held that if only a single post is
available in a particular cadre, policy of reservation/roster cannot be
applied and such a post has to be treated as an unreserved post. The
Tribunal also relied on Post Graduate Institute of Medical Education
and Research, Chandigarh v. Faculty Association and Others, JT 1998
(3) SC 223, where the reliance was placed on Union of India and Others
v. Brij Lal Thakur, (1997) 4 SCC 2789, and Union of India & Another
v. Madhav s/o Gajanan Chaubal & Another, JT 1996 (9) SC 320 holding
that in case of a single post cadre, total exclusion of general members
of the public and cent percent reservation for backward classes is not
permissible within the constitutional frame work. It was held that
unless there is plurality of post in a cadre, the question of reservation
will not arise because any attempt of reservation by whatever means
and even with device of rotation of roster in a single post cadre is bound
to create 100% reservations of such post, whenever such a reservation
is to be implemented. In the circumstances, it was emphatically held
that there cannot be any reservation in a single post cadre and the
reasoning in case of Madhav (Supra) and Brij Lal Thakur (Supra)
upholding the reservation of a single post cadre was not followed as
those decisions had been overruled later on.
The other plea of the petitioner that the settled issue could not be
unsettled after a long lapse of time was also not accepted. It was held
that the petitioner had been promoted contrary to rules ignoring two
Pharmacists who were senior to him, and therefore, the illegality had to
be rectified and rectification of the illegality committed could not be
denied on the basis of lapse of considerable time. Relying on Post
Graduate Institute of Medical Education and Research, Chandigarh
(Supra) it has been again reiterated that there could not be reservation
in respect of the single post of senior Pharmacist in Kalawati Saran
Children's Hospital, and therefore, the order dated 19th August, 2009
reverting the petitioner to the post of Pharmacist from senior
Pharmacist was upheld.
The plea of the petitioner of applicability of the DoPT dated 2nd
July, 1997 was also repelled on the ground that the same was
applicable only in respect of promotion order in accordance with law
where only adjustment of roster was involved, however, it does not
restrict correction of promotions that have been made as a result of
patent error.
Learned counsel for the petitioner has raised the same pleas and
contentions which were raised before the Tribunal. The Supreme Court
has held in Post Graduate Institute of Medical Education and Research,
Chandigarh (Supra) that reservation in a single post cadre cannot be
resorted to as such a reservation would bring a situation that the single
post in the cadre would result exclusively for the member of the
backward classes and the general members of the public would be
completely excluded and such a 100% reservation is not permissible
within the constitutional frame work. If the promotion was granted to
the petitioner on the basis of such a 100% reservation of a single post
cadre, it was patently illegal and the respondents were justified in
correcting their error and reverting the petitioner to post of Pharmacist
from the post of Senior Pharmacist and their decision cannot be faulted
on any of the ground raised by the petitioner.
In totality of the facts and circumstances this Court does not find
any illegality, irregularity, or such perversity which shall require any
interference by this Court in exercise of its jurisdiction under Article
226 of the Constitution of India.
The writ petition is without any merit, and it is, therefore,
dismissed.
ANIL KUMAR, J.
MAY 12, 2010 MOOL CHAND GARG, J.
'VK'
