Uoi & Anr. vs Bhagwan Dass & Ors.
2011 Latest Caselaw 3732 Del

                                                 Item No. A-31/4.8.2011

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.3167/2001

%               DATE OF DECISION: AUGUST 04, 2011



UOI & ANR.                            ....APPELLANT
        THROUGH: Mr. Maninder Singh, Sr. Advocate with
                 Mr. Gaurav Sharma, Advocate for the
                 petitioner.

              VERSUS

BHAGWAN DASS & ORS.                   ....RESPONDENT
       THROUGH: Mr. Rajshekhar Rao, Adv. with
                Mr. Karan Lahiri, Advocate for the
                respondent.

CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether reporters of Local papers be
       allowed to see the judgment?             No

2.     To be referred to reporter or not?       No

3.     Whether the judgment should be reported
       in the Digest?                          No


A.K.SIKRI, J. (ORAL)

*

1. The respondent herein was promoted as Section Officer

(SO) with the UOI in the office of Directorate of Accounts,

Cabinet Secretariat on 01.03.1994. He belongs to Scheduled

Caste (SC) Category. Next promotion was to the post of Sr.

Section Officer (Sr.SO) and as per the extant rules, a person

with three years regular service as SO becomes eligible for

consideration to the post of Sr. SO. The rules further provide

that there should be a ratio of 80:20 for Sr. SOs and SOs of the

Cabined strength of Sr. SOs. It is not in dispute that at the

relevant time, there were 37 posts in the combined cadre of

Sr. SOs/SOs. Thus, 80% of these posts came to the share of Sr.

SOs.

2. The DPC for promotion to the post of Sr. SOs met on

7.03.1997. However, on that day the respondent had not

become eligible. The DPC was again held in September 1998.

This time, case of the respondent was considered for the said

post. But, he was not promoted as according to the petitioner,

no posts in the SC category was available. The respondent

challenged the aforesaid non-promotion by filing an Application

before the Tribunal under Section 19 of the Administrative

Tribunal Act. It was primarily on two counts. One ground taken

by the respondent was that there were five posts meant for SC

candidates and since only 4 persons belonging to this category

were working as Sr. SOs, the stand of the petitioner/ Union of

India that there was no post for SC category was incorrect. On

this basis, he pleaded that being a SC candidate and one post

in that category still available, he should have been promoted

against that post. Since the Tribunal has accepted this plea of

the respondent and decided the OA only on this ground, we

would like to deal with this ground in the first instance and

would refer to the other ground taken by the respondent later

at the appropriate stage.

3. Coming to the vacancy position, it is not in dispute that

there were 37 posts in the combined cadre of Sr.SOs/SOs. It is

also not in dispute that 80% of these posts were meant for Sr.

SOs. Further, it is also not in dispute that 15% of the posts are

to be reserved for SC category candidates and 7.5% for ST

category candidates. The entire dispute relates to the manner

in which that 80% posts meant for Sr. SOs and out of these

80%, 15% meant for SC category are to be calculated. The

exercise done by the Tribunal in arriving at a conclusion that 5

posts in the aforesaid cadre are to be allocated to SC category

can be traced in para 5 of the impugned order which reads as

under:

"The DPC which met on 7.3.1997 considered vacancies prior to 1.3.1997 on which date applicant was not eligible for promotion, but in

the subsequent DPC held in September 1998, applicant‟s claim for promotion should have been considered as an SC candidate on post-

based roster basis, such that all the 5 vacancies available for SC candidates were filled up by them".

4. It is clear from the above that, while calculating 80% of

37, the Tribunal has arrived at a figure of 29.6 which taken

upwardly by rounded off to 30. Thereafter 15% of this (which is

meant for SC category) is calculated which comes to 4.5 and it

is again rounded off to the next higher level i.e. 5.

5. Mr. Maninder Singh, learned Sr. Counsel appearing for

the Union of India/ petitioner has challenged the aforesaid

manner of calculation. His submission is that no such rounding

off of 29.6 into 30 and thereafter rounding off of 4.5 into 5 was

permissible as per the rules. Alternatively, he submitted that

when 80% of 37 comes to 29.6, 15% of this 29.6 should have

been taken into consideration instead of 30. If that is done,

then 25% of 29.6 comes to 4.44. According to him, after

applying the relevant instructions, one will have to omit the

fraction and in this manner there would be four posts meant

for SC category this purpose, our attention is drawn to OM

No.36012/2/96-Estt.(Res.), dated the 2nd July, 1997 which was

issued to implement the judgment of the Supreme Court in

R.K. Sabharwal v State of Punjab (AIR 1995 (2) SCC 745)

holding that for reservation of job for the backward classes, the

Government should apply post-based-roster instead vacancy-

based-roster. Main reason was to ensure that the total

reservations do not exceed 50%. Paragraph 8 of the aforesaid

instructions/circular in Explanatory Notes reads as under:

"8.It would noted that at the end of the roster, "squeezing" has been done for the reserved categories to reach the number of posts to be reserved for them without violating the 50% limit laid down by the Courts. While drawing up rosters, the cadre controlling authorities should similarly "squeeze" the last point of the roaster. Such squeezing may not, however, be done where it would violate the rule of 50%."

6. The basis of above submission was that instead of

rounding off to the next level, what is permitted is "squeezing"

to ensure that the overall percentage of reservation is not

exceeded. His submission was that if 5 posts are to be treated

as meant for SC candidates against total post of 37, then the

percentage would exceed 15% meant for SC category which is

against the spirit of R.K. Sabharwal (supra). He also drew out

attention to the model roster of reservation with reference to

posts prepared keeping in view the mandate of R.K.

Sabharwal (supra). As per this roster posts at S.No.7, 15, 20,

27 and 35 are meant for SC category. He thus submitted that

fifth post under SC category comes at Sr. No.35 whereas total

posts in this category are only 29.3/30 and on this reckoning

also, there cannot be 5 posts for SC category as against 29.6

posts available for Sr. SOs. He also referred to clarification

which were issued by the C&AG vide Circular No. 9/NGE/98

No.108/NGE (App.)/3-97 dated 23.01.1998 regarding post-

based-reservation roster wherein it was, inter alia, clarified

that if there is a fraction of less than 0.5 then while preparing

the roster, the squeezing of the last reserved point is to be

done. Thus, his submission was that the Tribunal committed an

error in arriving at the figure of 5 for the purpose of allocation

of quota to the SC category.

7. As against the above, submissions of learned counsel for

the respondent was that the rounding off done by CAT in the

aforesaid manner was permissible having regard to the law

laid down by the Supreme Court in the case of State of Uttar

Pradesh and another v Pawan Kumar Tiwari and

others[(2005) 2 SCC 10]. Learned counsel specifically referred

to the following passage from the said judgment:

"6. The High Court has found mainly two faults with the process adopted by the State Government. First, the figure of 46.50% should have been rounded off to 47 and not to 46; and secondly, in the category of freedom fighters and ex-servicemen, total 3 posts have been ear-marked as horizontally reserved by inserting such reservation into general quota of 46 posts which had the effect of pushing out of selection zone 3 candidates from the merit list of general category.

7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its valued shall be ignored. 46.50 should have rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment."

8. We are of the opinion that even if rounding off is

permissible in the manner stated by the Supreme Court and as

clarified by C&AG, the calculations as per simple arithmetic

would clearly demonstrate that the posts which could be ear-

marked for SC category would be 4 and not 5. The mistake

which the Tribunal has committed is to first rounding off 29.6

into 30 and on that basis arriving at a figure of 4.5 while

calculating 15% thereof for SC category and then rounding off

of the same to 5. This rounding off on both occasions in an

upward manner has led to an error and would defy the simple

arithmetic calculation. The Tribunal should have taken 80% of

37 which was coming to 29.6% and should have calculated

15% thereof. In this manner, exact figure would be 4.44. Since

it is less than 4.5, the fraction is to be ignored and the exact

figure which has to be arrived at in this manner would be 4 and

not 5. If the rounding off is done at both these places and that

too in a upward manner and not by ignoring fraction, then the

percentage meant for SC category is inflated from 15% to

16.66%, though such a result is clearly impermissible. We are,

therefore, of the opinion that the post meant for SC category

would be 4 and not 5. Otherwise, as rightly pointed out by

learned counsel for the petitioner, if 5 posts are taken into

consideration then it exceeds the quota of 15% meant for SC

category candidates.

9. We may point out here that this very case was forwarded

by the petitioner to Department of Personnel & Training and

they had also given the opinion that the exercise undertaken

by the Tribunal was incorrect. The position is explained in the

following manner:

"4. If a roster is prepared for 30 posts as per procedure prescribed by the DOPT, posts falling at points 7, 15, 20 and 27 should be reserved for SC candidates. Next point

reserved for SC would fall at point 34. Since number of posts is only 30, fifth point for SCs would not occur. If we go by the judgment of the Tribunal the post falling at point 30 which otherwise is meant for unreserved category would go to a Scheduled Caste candidate. It is felt that it would result into unintended benefit to candidates belonging to Scheduled Castes and would be against the spirit of the judgment of the Supreme Court in R.K. Sabharwal case.

6. It would be pertinent to refer to the Supreme Court judgment in Indra Sawhney‟s case wherein it was reaffirmed that reservation should not exceed 50%. If principle of rounding off is adopted there are possibilities of reservation exceeding the limit of 50%. For instance consider the case of a cadre of 50 posts were all the posts are filled by direct recruitment. Reservation of 15%, 7.5% and 27% is available to SCs, STs and OBCs respectively in such a case. Out of 50 posts, quota for respective categories would be as follows:

SC 7.5 rounded off to 8 ST 3.75 rounded off to 4 OBC 13.5 rounded off to 14

Total reserved posts 26

7. Thus 26 posts out of 50 would be reserved. Reservation here would become 52% which is not permissible as law laid down by the Supreme Court.

8. If argument of rounding off is accepted, there may be demands that while preparing rosters, wherever fraction of .5 occurs, the post should be reserved. It would result into

excessive reservation and whole principle of preparing the roster would go haywire.

9. Methodology for preparing post-based rosters provides „squeezing‟ of reservation towards the end of the roster. Purpose of such squeezing is to complete the percentage of reservation. Its purpose is not to exceed the prescribed percentage of reservation. If 4.5 is rounded off to 5 and thus 5 posts are kept reserved for SCs, percentage of reservation for SCs would come to 16.66 which exceeds the percentage of reservation of 15 prescribed for SCs.

10. We are in agreement with the said clarification issued by

the DoPT. For the aforesaid reason, we hold that the Tribunal

was not right in concluding that there are 5 posts meant for SC

category candidates.

11. At this stage we would like to point out the second

contention which was taken by the respondent herein in his OA

filed before the Tribunal. It was also argued that the total

number of persons in the category of SC who were appointed

as Sr. SOs as on that day were 3. There was one more person

belonging to SC category holding the post of Sr. SO but he was

promoted against that post meant for ST as the said post of ST

had not been filled up for more than three years and was,

therefore, exchanged in favour of SC category. On this basis,

the plea of respondent was that even if there were four posts

meant for SC category, one post was still available and the

respondent should have been adjusted against that post.

Learned counsel for the petitioner, on the other hand, had

argued that this submission of respondent is based on

"plotting" exercise which was undertaken while examining the

vacant posts pursuant to the instructions contained in OM

dated 2nd July, 1997. Therefore, it was not permissible for the

respondent to take shelter under the said chart which was

prepared for an altogether different purpose stating the post

as on 31st December 1998. He also submitted that apart from

persons belonging to SC category who were shown in the said

chart, there were some other SC candidates also holding the

post of Sr. SO but were away on deputation and therefore, on

that basis alone it cannot be said that there were only 3 SC

candidates in position as against 4 posts or one ST candidate

was promoted against the post meant for SC candidate.

12. Be that as it may, it is not necessary for us to go into this

aspect for simple reason that the Tribunal has not considered

this issue at all. Since the OA is decided only on the first

contention taken by the respondent based on the number of

vacancies and once we find that the conclusion of Tribunal is

not correct, we set aside the impugned order of the Tribunal

holding that at the relevant time there were 4 posts available

for SC category candidates in the cadre of Sr. SO.

13. The matter is remitted back to CAT for deciding other

contentions raised by the respondent. It would be open to both

the parties to rely upon whatever relevant material is available

in support of their respective contention.

14. The writ petition stands disposed of in the aforesaid

manner without there being any order as to costs.

15. The parties are directed to appear before the Tribunal on

29th August, 2011. Since much time has already been elapsed,

the Tribunal may endeavour to decide the matter in an

expeditious manner.

(A.K.SIKRI) JUDGE

(M.L.MEHTA) JUDGE AUGUST 04, 2011 awanish