Kerala High Court
Union Of India vs Union Of India on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
OP (CAT).No.102 OF 2020
AGAINST THE ORDER IN OA 368/2019 DATED 17-12-2019 OF CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS 1 TO 3 IN THE OA:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF
RAILWAYS, RAIL BHAVAN, NEW DELHI - 110 001.
2 THE GENERAL MANAGER
SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK
TOWN P.O., CHENNAI - 600 003.
3 THE SENIOR DIVISIONAL PERSONNEL OFFICER
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
TRIVANDRUM - 695 014.
BY ADV. SRI.S.RADHAKRISHNAN
RESPONDENTS/APPLICANTS/RESPONDETNS 4 TO 6 IN THE OA:
1 SAM DIVANNI
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM RESIDING AT AMBIYAYAM, NORTH
ARYAD P.O., ALAPPUZHA - 688 538.
2 B.AJIKRISHNAN
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT DEVARAGAM,
VALIYAKULANGARA, OCHIRA - 690 526.
OP(CAT) Nos.102 & 149/2020
-:2:-
3 G.VINOD
SENIOR ASST.LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT DAKSHINA,
NEDUMGOLAM, PARAVUR, KOLLAM - 691 334.
4 M.S.SANTHOSH KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT SANTHOSH
BHAVAN, PERAYAM, MULAVANAN, KOLLAM - 691 503.
5 R.RAVIKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT CHEMPAKAM,
KARIPOOR, MALAYINKEEZHU, TRIVANDRUM - 695 571.
6 S.MANOJKUMAR
SENIOR ASST., I.OCO PILOT, CCRC OFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT ARCHANA,
NEDUNGOLAM P.O., PARAVOOR, KOLLAM - 691 334.
7 T.A.SAFEER
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT THANDIYAKKADA
HOUSE, ELOOR NORTH, UDYOGAMANDAL, ERNAKULAM -
683 501.
8 K.ANILKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT KRISHNAVENI,
ALANCHERI, YEROOR P.O., KOLLAM - 691 312.
9 G.KISHOR KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT RENJINI HOUSE,
CHAMPAKARA, KARUKACHAL, KOTTAYAM - 686 540.
10 K.B.VENU GOPALAN
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT CHERANALLOR,
NEAR SOUTH NADA BHAGAVATHY TEMPLE, ERNAKULAM -
683 544.
OP(CAT) Nos.102 & 149/2020
-:3:-
11 B.ANILKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT GOURI
NANDANAN, MUNDANCHIRA, KOLLAM - 691 014.
12 PRADEEP G.KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT KUMBUKATTU
KIZHAKKETHIL, CHOORAKODE P.O., ADOOR - 691 551.
13 R.MAHESH KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM RESIDING AT SHIVAMUDRA,
HANUMANKOIL STREET, SOUTH CHITTOOR, KOCHI - 682
027.
14 P.S.SURALAL
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT THANNIVILA
HOUSE, ERAM, KARANCODE P.O., KOLLAM - 691 579.
15 R.MADHUSOODANAN
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT AJAYANIVAS,
KUNNATHALUMMODU, KAYAMKULAM - 690 502.
16 JOHNY THOMAS
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT MUTTOM BAZAR,
KOTTUPPALLY HOUSE, CHERTHALA -688 524.
17 N.V.GIREESH KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT NIRAPATH
KIZHAKKETHARA, MUVATTUPUZHA -686 661.
18 GIRISH BABU
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, PARAYIL HOUSE,
KUMARANELLOOR, KOTTAYAM -686 016.
OP(CAT) Nos.102 & 149/2020
-:4:-
19 P.BIJU
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM RESIDING AT BIJU BHAVAN,
CHERTHALA - 688 524.
20 M.DHINU RAKESH
LOCO PILOT (SHUNTING-II), CCRC OFFICE, SOUTHERN
RAILWAY, NAGERCOIL - 629 002.
21 ANAND RAYIPUDI
LOCO PILOT (SHUNTING-II), CCRC OFFICE, SOUTHERN
RAILWAY, NAGERCOIL - 629 002.
22 S.JAYAKUMAR
LOCO PILOT (SHUNTING-II), CCRC OFFICE, SOUTHERN
RAILWAY, NAGERCOIL - 629 002.
R1-19 BY ADV. SRI.G.HARIKUMAR (GOPINATHAN NAIR)
R20-22 BY ADV. SRI.PREMCHAND R.NAIR
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-12-2020,
ALONG WITH OP (CAT).149/2020, THE COURT ON 18-01-2021
DELIVERED THE FOLLOWING:
OP(CAT) Nos.102 & 149/2020
-:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
OP (CAT).No.149 OF 2020
AGAINST THE ORDER IN OA 368/2019 OF CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 17/12/2019
PETITIONERS/RESPONDENTS 4 TO 6 IN OA:
1 M. DHINU RAKESH
AGED 36 YEARS
LOCO PILOT (SHUNTING) - II, CCRC OFFICE,
SOUTHERN RAILWAY, NAGARCOIL - 629 002.
2 ANAND RAYIPUDI
LOCO PILOT (SHUNTING) - II, CCRC OFFICE,
SOUTHERN RAILWAY, NAGARCOIL - 629 002.
3 S. JAYAKUMAR
LOCO PILOT (SHUNTING) - II, CCRC OFFICE,
SOUTHERN RAILWAY, NAGARCOIL - 629 002.
BY ADVS.
SRI.PREMCHAND R.NAIR
SRI.K.MANICKARAJ
SRI.V.P.PRASANTH
SRI.GEORGE BRISTON
SMT.K.SREEKALA DEVI
RESPONDENTS/RESPONDENTS 1 TO 3 AND APPLICANTS IN OA:
1 SAM DIVANNI
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT AMBIYAYAM,
NORTH ARYAD P. O., ALAPPUZHA - 688 538.
OP(CAT) Nos.102 & 149/2020
-:6:-
2 B. AJIKRISHNAN
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT DEVARAGAM,
VALIYAKULANGARA, OCHIRA - 690 526.
3 G. VINOD
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT DAKSHINA,
NEDUMGOLAM, PARAVUR, KOLLAM - 691 334.
4 M. S. SANTHOSH KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT SANTHOSH
BHAVAN, PERAYAM, MULAVANA, KOLLAM - 691 503.
5 R. RAVIKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT CHEMPAKAM,
KARIPOOR, MALAYINKEEZHU, TRIVANDRUM - 695 571.
6 S. MANOJKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT ARCHANA,
NEDUNGOLAM P. O., PARAVOOR, KOLLAM - 691 334.
7 T. A. SAFEER
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT THANDIYAKKADA
HOUSE, ELOOR NORTH, UDYOGAMANDAL, ERNAKULAM -
683 501.
8 K. ANILKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT KRISHNAVENI,
ALANCHERI, YEROOR P. O., KOLLAM - 691 312.
9 G. KOSHOR KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT RENJINI HOUSE,
CHAMPAKARA, KARUKACHAL, KOTTAYAM - 686 540.
OP(CAT) Nos.102 & 149/2020
-:7:-
10 K. B. VENU GOPALAN
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT CHERANALLOR,
NEAR SOUTH NADA BHAGAVATHY TEMPLE, ERNAKULAM -
683 544.
11 B. ANILKUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT GOURI
NANDANAN, MUNDANCHIRA, KOLLAM - 691 014.
12 PRADEEP G. KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT KUMBUKATTU
KIZHAKKETHIL, CHOORAKODE P. O., ADOOR - 691
551.
13 R. MAHESH KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT SHIVAMUNDRA,
HANUMANKOIL STREET, SOUTH CHITTOOR, KOCHI - 682
027.
14 P. S. SURALAL
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT THANNIVILA
HOUSE, ERAM, KARANCODE P. O., KOLLAM - 691 579.
15 R. MADHUSOODANAN
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT AJAYANIVAS,
KUNNATHALUMMOODU, KAYAMKULAM - 690 502.
16 JOHNY THOMAS
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT MUTTOM BAZAR,
KOTTUPPALLY HOUSE, CHERTHALA - 688 524.
17 N. V. GIREESH KUMAR
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT NIRAPATH
KIZHAKETHARA, MUVATTUPUZHA - 686 661.
OP(CAT) Nos.102 & 149/2020
-:8:-
18 GIRISH BABU
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT PARAYIL HOUSE,
KUMARANELLOOR, KOTTAYAM - 686 016.
19 P. BIJU
SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN
RAILWAY, TRIVANDRUM, RESIDING AT BIJU BHAVAN,
CHERTHALA - 688 524.
20 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF RAILWAYS,
RAIL BHAVAN, NEW DELHI - 110011.
21 THE GENERAL MANAGER
SOUTHERN RAILWAY, HEADQUARTERS OFFICE,
PARK TOWN, P. O. CHENNAI - 600 003.
22 THE SENIOR DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
TRIVANDRUM-695584.
R1-19 BY SRI.HARIKUMAR G. NAIR
R20-22 BY SRI.S.RADHAKRISHNAN,SENIOR
PANEL,RAILWAYS
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09-12-2020,
ALONG WITH OP (CAT).102/2020, THE COURT ON 18-01-2021
DELIVERED THE FOLLOWING:
OP(CAT) Nos.102 & 149/2020
-:9:-
JUDGMENT
Dated this the 18th day of January, 2021
Shaffique, J.
Respondents 1 to 3 and 4 to 6 in OA No.368/2019 have filed
OP(CAT) No.102/2020 and OP(CAT) No.149/2020, respectively,
challenging order dated 17/12/2019 in OA No.368/2019 of the
Central Administrative Tribunal, Ernakulam Bench.
2. The OA had been filed by the party respondents herein
challenging Annexure A4 promotion order dated 15/5/2019 by
which Loco Pilots (Shunting) have been promoted to the post of
Loco Pilot (Goods). The original applicants raised a contention
that they were appointed as Assistant Loco Pilots in Southern
Railway after a due selection process during 1999-2000. The
petitioners in OP(CAT) No.149/2020 who were respondents 4 to 6
in the Original Application entered service as Assistant Loco Pilots
during 2009-2013. They were promoted as Senior Assistant Loco
Pilots and thereafter as Loco Pilot (shunting). They belonged to
Scheduled Caste/Tribe category. Their appointment and
OP(CAT) Nos.102 & 149/2020
promotions were purely on the basis of reservation against
reserved points on the roster. The Railway Board during 2010 has
issued RBE No.126/2010 dated 1/9/2010 clarifying that SC/ST
candidates appointed by promotion on their own merit and
seniority and not owing to reservation or relaxation of
qualifications will be adjusted against unreserved points of
reservation roster, irrespective of the fact whether the promotion
was made by selection method or non selection method. The
aforesaid Railway Board order had been issued based on office
memorandum dated 10/8/2010 issued by the Director, Ministry of
Personnel, Public Grievances and Pensions, Department of
Personnel and Training, Government of India. The Punjab and
Haryana High Court quashed the office memorandum dated
10/8/2020. The matter was carried in appeal before the Apex
Court which is still pending consideration. In the meantime,
Contempt case No.314/2016 was filed in SLP(C) No.4831/2012
and while the matter was being heard, the Solicitor General made
an undertaking before the Apex Court that the Government would
not pass any further order of promotion relying upon the said
office memorandum. Based on the said undertaking, Railway
OP(CAT) Nos.102 & 149/2020
Board issued RBE No.117/2016 keeping in abeyance RBE
No.126/2010 and all further promotions of reserved category
persons to unreserved posts. The contention urged by the
applicants is that in blatant violation of the said undertaking and
RBE No.117/2016, respondents 4 to 6 were promoted as Loco
Pilot (Goods) after relaxing the mandatory residence of two years
in terms of Annexure A4. The contention urged is that
respondents 4 to 6 were promoted as Senior Assistant Loco Pilot
and Loco Pilot (Shunting) purely on the basis of reservation and
not on the basis of their merit and therefore they are not entitled
to be appointed against general category on the basis of the
circulars, the validity of which is under consideration before the
Apex Court. Therefore, while challenging Annexure A4, direction
has also been sought to promote the applicants against Loco Pilot
(Goods) in general category against unreserved points in
Trivandrum Division and to effect promotion strictly in accordance
with the undertaking furnished by the Solicitor General before the
Apex Court.
3. Respondents 1 to 3 in the Original Application took up a
contention that the undertaking given by the Solicitor General
OP(CAT) Nos.102 & 149/2020
has no application to the present facts, as promotions were based
on the seniority select lists prepared in terms of RBE No.91/2018
dated 19/6/2018 [Annexure R1(b)]. It was contended that the
Apex Court had passed order dated 5/6/2018 in SLP(C)
No.31288/2017 inter alia stating that Union of India is not
debarred from making promotions in accordance with law, subject
to further orders. It is on the basis of the aforesaid order that OM
dated 19/6/2018 had been issued and it is based on the said
order that the promotions were effected.
4. The Tribunal after considering the respective contentions
and having observed that all the applicants are senior to
respondents 4 to 6 placed reliance on judgment of the Hyderabad
Bench of the Tribunal in OA No.021/964/2017 and connected
matters and held that the same factual situation had arisen in the
present case and accordingly Annexure A4 was set aside and
respondents 1 to 3 were directed to promote the applicants
against Loco Pilot (Goods) in general category against the
unreserved points in the roster, if they are otherwise eligible.
5. We heard the learned counsel for the petitioners
Sri.S.Radhakrishnan and Sri.Premchand R.Nair and Sri.Hari
OP(CAT) Nos.102 & 149/2020
Kumar G.Nair, learned counsel appearing for the respondents/
applicants.
6. There is no dispute about the fact that in the light of the
undertaking given by the Solicitor General of India before the
Apex Court, RBE 126/2010 was kept in abeyance. The contention
urged by the learned counsel for the petitioners is that
subsequently the Apex Court had issued certain other orders in
SLP(C) No.28306/2017 connected with SLP(C) No. 31288/2017
making it clear that the Union of India is not debarred from
making promotions in accordance with law, subject to further
orders. It is stated that pursuant to the aforesaid observation, the
Railway Board issued Annexure R1(b) dated 19/6/2018 enclosing
the Government of India OM dated 15/6/2018 for strict
compliance. For easy reference the said OM reads as under:-
"OFFICE MEMORANDUM
Subject: Implementation of interim Orders/directions in
Special Leave to Appeal (C) No. 30621/2011 arising out of
final judgment and order dated 15.07.2011 in CWP No.
13218/2009 passed by the Hon'ble High Court of Punjab &
Haryana and Special Leave, to Appeal (c) No. 31288/2017
arising out of Hon'ble Delhi High Court judgment dated
23.08.2017 and other related court cases - regarding
OP(CAT) Nos.102 & 149/2020
The Hon'ble Supreme Court vide its order dated
15.11.2017 in SLP(C) No. 28306/2017 has decided to refer to
a Constitution Bench to examine whether its earlier decision
in M. Nagraj and others vs. Union of India and others requires
consideration or not, inter alia, on the issue as to whether
test of backwardness would, at all, apply in case of SC and
ST.
2.The Hon'ble Supreme Court in SLP (C) No. 30621/2011 has
passed the following Order on 17.05.2018:
"It is directed that the pendency of this Special Leave
Petition shall not stand in the way of Union of India taking
steps for the purpose of promotion from reserved to
reserved' and 'unreserved to unreserved' and also in the
matter of promotion on merits.............."
3. Further, in the matter related to SLP(C) No. 31288/2017,
connected to Special Leave to Appeal (C) No. 28306/2017,
the Hon'ble Supreme Court held as under on 05.06.2018:
"Heard learned counsel for the parties. Learned ASG has
referred to order dated 17.05.2018 in SLP (C)
No.30621/2011. It is made clear that the Union of India is not
debarred from making promotions in accordance with law,
subject to further orders, pending further consideration of
the matter. Tag to SLP(C) No.30621 of 2011".
4. The cadre controlling authorities of Central Government
Ministries Departments and Union Territories are to carry out
promotions in accordance with the directions of the Hon'ble
Supreme Court mentioned in paragraphs 2 and 3 above
based on existing seniority/select lists
5. Every promotion order must clearly mention the
stipulation that the promotion shall be subject to further
orders which may be passed by the Hon'ble Supreme Court.
OP(CAT) Nos.102 & 149/2020
6. All Ministries/ Departments are requested to bring this to
the notice of all concerned for information and compliance.
7. State Governments are also advised to take necessary
action in accordance with the abovementioned orders
passed by the Hon'ble Supreme Court.
(G.Srinivasan)
Deputy Secretary to the Government of India
Tel:2309 3074"
The contention urged by the learned counsel is that it is based on
the aforesaid Government Order, which again is based on the
Apex Court directions, that Annexure A4 order had been issued.
7. We do not think that Annexure R1(b) read along with
Government of India OM dated 15/6/2018 would render any
assistance to the petitioners in order to contend that they are
entitled to promote a person from reserved category to a post
specified for unreserved category.
8. The only direction issued by the Apex Court in its order
dated 5/6/2018 is permitting Union of India to effect promotions
in accordance with law. What is the law when promotions are to
be effected is the moot question.
9. Learned counsel appearing for the respondents placed
before us the judgment of the Central Administrative Tribunal,
OP(CAT) Nos.102 & 149/2020
Mumbai Bench in OA No.251/2020 dated 7/8/2020 in which it is
held at paragraph 18 as under:-
"18. The position in law is very clear. This Bench had already
decided in the batch of cases led by OA No.727/2013 on
29.11.2018 to quash RBE No. 126/2010 dated 1/9/2010
which had set out the rule for accommodating reserved
candidates who had secured merit positions in either
selection or non-selection promotions, without any
reservation or by availing relaxed qualification, in
unreserved vacancies and these orders had been confirmed
by the Hon'ble High Court on 3.4.2018 and by the Hon'ble
Apex Court on 22.10.2018. The DoP&T OM dt.30.9.2016
(para 7 above) and RBE 91/2018 that reiterated the orders of
the DoP&T of 15.6.2018 only reflected the submission and
concurrence of the learned Solicitor General and Addl.
Solicitor General not to do precisely this action. At this
moment, moreover, this Bench had already quashed RBE
126/2010 on 29.11.2018. Therefore, when the notification for
exams was issued on 21.12.2018, the contents and plan of
the notification was incorrect to the extent that it provided
for quite the opposite. At that time, the removal of
reservation in promotion became only an added factor that,
in the circumstances of the present case, create no further
complications since Respondent No. 4 could only have been
selected on the basis of reservation and not on the basis of
merit rank."
10. High Court of Delhi had occasion to consider a similar
matter. In All India Equality Forum and Others v. Union of
OP(CAT) Nos.102 & 149/2020
India [WP(C) No.3490/2010 & CM No.6956/2010], a Division
Bench of the High Court of Delhi had occasion to consider the
validity of OM dated 13/8/1997 issued by the Department of
Personnel and Training which came to be challenged before the
High Court of Delhi and after considering the respective
contentions, it was held at paragraphs 10 to 15 as under:-
"10. On this legal position being brought to his notice, Shri
R.V.Sinha, learned counsel appearing for the respondent, fairly
admitted that the controversy, in the present case, stood covered
by the judgments of the Supreme Court in M. Nagaraj (supra) and
B.K. Pavitra (supra). At the same time, he contended, vociferously,
that the writ petition itself was not maintainable, as the petitioner
would be required, in the first instance to approach the Central
Administrative Tribunal (hereinafter referred to as "the Tribunal") in
view of the law laid down by the Supreme Court L. Chandra Kumar
v U.O.I., (1997) 3 SCC 261.
11. Needless to say, the said objection of Mr.Sinha cannot merit
any consideration in the present case, as the petitioner has moved
this Court pursuant to the specific liberty, granted by the Supreme
Court in this behalf, vide its order dated 11th March, 2010, already
referred to hereinabove. In view of the said liberty, it is not open to
this Court to travel behind the said judgment and enter into any
discussion regarding maintainability of the petition. The brief of
this Court this, neatly and squarely, to adjudicate on whether, or
not, the impugned OM, dated 13th August 1997 could sustain, in
the wake of the law as enunciated in M. Nagaraj (supra).
OP(CAT) Nos.102 & 149/2020
12. The objection of Mr Sinha is, therefore, overruled.
13. As has already been noticed hereinabove, the counter affidavit,
filed in the present proceedings on behalf of Respondents 2 to 4,
does not disclose that the requisite exercise, collecting quantifiable
data and determining the aspects of backwardness, inadequacy of
representation and overall efficiency of the administration, was
ever undertaken before blindly extending, beyond 15th December,
1997, the provision for reservation, in promotion, favouring SCs
and STs. The 77th Amendment to the Constitution, and sub-article
(4A), which was inserted in Article 16 thereby, were obviously
taken as providing a carte blanche to the Government to extend
the provisions of reservation for SCs and STs beyond the period of
5 years stipulated in Indra Sawhney (supra). As Nagaraj (supra),
and the decisions following thereupon show us, however, that is
not the case. Any reservation (as also consequential seniority)
extended to SCs and STs, without, in the first instance, conducting
the requisite exercise of garnering quantifiable data, indicating
inadequate representation, and juxtaposing, they're against, the
considerations of backwardness and overall efficiency of
administration, would necessarily infract Articles 16 (1) and 335 of
the Constitution of India and, consequently, be liable to be
quashed.
14. The impugned OM dated 13th August 1997, issued by the
DOPT cannot, therefore, sustain in view of the law laid down in the
decisions already cited hereinabove.
15. Resultantly, prayers (a) and (c), in the writ petition, succeed.
The impugned Office Memorandum No 36012/18/95-Estt. (Res) Pt.
II, dated 13th August, 1997, issued by the DOPT, is quashed and
set aside. The respondents are restrained from granting any
OP(CAT) Nos.102 & 149/2020
reservation, in promotion, to Scheduled Castes or Scheduled
Tribes, in exercise of the power conferred by Article 16 (4A) of the
Constitution of India, without, in the first instance, carrying out the
necessary preliminary exercise of acquiring quantifiable data
indicating inadequacy of representation, of the said categories, in
service, and evaluating the situation by taking into consideration
the said data, along with the competing considerations of
backwardness and overall efficiency in administration, and arriving
at an empirical decision on the basis thereof."
11. Reference is made to the judgment of the Apex Court in
Ajit Singh Januja and Others v. State of Punjab [(1996) 2
SCC 715]. It was held at paragraphs 7, 9, 15 and 16 as under:-
"7. If the contention of the respondents is accepted as has
been done by the High Court that such
appointees/promotees can be considered against posts
meant for general category candidates merely because they
have become senior on the basis of accelerated promotions
then, according to us, that exercise shall amount to
circumventing the judgment of the Constitution Bench of
this Court in Sabharwal case [(1995) 2 SCC 745 : 1995 SCC
(L&S) 548 : (1995) 29 ATC 481] , because for all practical
purposes the promotions of such candidates are being
continued like a running account although the percentage
of reservation provided for them has been reached and
achieved. Once such reserved percentage has been
achieved and even the operation of the roster has stopped,
then how will it be permissible to consider such candidates
for being promoted against the general category posts on
OP(CAT) Nos.102 & 149/2020
the basis of their accelerated promotion, which has been
achieved by reservation and roster."
"9. Once the quota is full and roster has stopped for
members of the Scheduled Castes and Backward Classes in
respect of whom reservation has been made and roster has
been prescribed then their case for promotion to a still
higher grade against general category posts has to be
considered not treating them as members of the Scheduled
Castes or Backward Classes "on any crutch". They cannot
be promoted only on basis of their "accelerated seniority"
against the general category posts. In R.K. Sabharwal
case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29
ATC 481] it was said that the candidates belonging to
Scheduled Castes who compete on their own merit along
with general category candidates then they are not to be
counted within the percentage of reservation made for such
candidates in the service, because they have competed
with the general category candidates on their own merit.
The same principle which has been enunciated by the
Constitution Bench in the aforesaid case shall be applicable
whenever a member of Scheduled Castes or Backward
Classes has got accelerated promotion to a higher grade
and is to be considered for further promotion to a still
higher grade against general category posts. The
accelerated promotions are to be made only against the
posts reserved or roster prescribed. There is no question of
that benefit being available when a member of Scheduled
Castes or Backward Classes claims promotion against
general category posts in the higher grade. It need hardly
be pointed out that such candidates who are members of
the Scheduled Castes or Backward Classes and have got
OP(CAT) Nos.102 & 149/2020
promotion on the basis of reservation and application of
roster before their seniors in the lower grade belonging to
general category, in this process have not superseded
them, because there was no inter se comparison of merit
between them. As such when such seniors who belong to
general category, are promoted later it cannot be said that
they have been superseded by such members of Scheduled
Castes or Backward Class who have been promoted earlier.
While considering them for further promotion against
general category posts if the only fact that they have been
promoted earlier being members of Scheduled Castes or
Backward Class is taken into consideration, then it shall
violate the equality clause and be against the view
expressed not only in the case of R.K. Sabharwal [(1995) 2
SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] by the
Constitution Bench, but also by the nine-Judge Bench in the
case of Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] where it has been held
that in any cadre reservation should not exceed beyond
50%. The 50% posts already being reserved against which
promotions have been made then any promotion against
general category posts taking into consideration that they
are members of the Scheduled Castes or Backward Classes,
shall amount to exceeding the limit fixed in the case
of Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S)
Supp 1 : (1992) 22 ATC 385] ."
"15. When framers of the Constitution by Article 16
guaranteed equality of opportunity in matters of public
employment, they aimed at combining democratisation with
efficiency. In the process of democratisation Article 16(4)
enabled the State to make provisions for reservation of
OP(CAT) Nos.102 & 149/2020
appointments or posts in favour of any Backward Class of
citizens which, in the opinion of the State is not adequately
represented in the services under the State. As has been
pointed out by this Court that at the same time Article 335
of the Constitution enjoins to take into consideration the
claims of the members of the Scheduled Castes and
Scheduled Tribes "consistently with the maintenance of
efficiency of the administration" while making appointments
to services and posts in connection with the affairs of the
Union or of a State. Thus it has been conceived by our
Constitution that a process should be adopted while making
appointments through direct recruitment or promotion in
which the merit is not ignored. For attracting meritorious
and talented persons to the public services, a balance has
to be struck, while making provisions for reservation in
respect of a section of the society. This Court from time to
time has been issuing directions to maintain that balance in
the public services so that there should not be
discontentment, heartburning and frustration, which can
never be held to be in the larger interest of the society. It
has been pointed out in the case of Indra Sawhney [1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] that reservation in promotions at various stages has
resulted in considerable discontentment because many
senior persons in spite of their efficiency and dedicated
work find themselves superseded by their juniors belonging
to the Scheduled Castes or Tribes for that reason alone. In
many cases seniors to their horror find themselves made
junior to even those who actually worked as their
subordinates due to this factor alone. All concerned who are
involved and interested in the uplift and growth of the
OP(CAT) Nos.102 & 149/2020
nation have to work out a system by which the injustice
done to a section of people in our society at a certain period
of history can be rectified by providing protections to their
descendants, but we have to be conscious, at the same
time that the efficiency of the administration of the country
is not harmed and there is no reverse discrimination.
Promotion is an important incident of service. It covers both
advancement between grades within the same class and
between different classes. Seniority in service is one of the
important factors in making promotion. Even where process
of promotion by selection is adopted, seniority has an
importance in case of equal merit. The principal object of a
promotion system is to secure the best possible incumbents
for the higher position while maintaining the morale of the
whole organisation. The best public interest is served when
equal opportunities for promotion exist for all qualified
employees. Civil servants are able to move up "the
promotion ladder" as the merit deserves and the vacancies
occur. Right to equality enshrined in the Constitution is to
be preserved by preventing reverse discrimination as well.
The guarantee of equality requires maintenance of original
or panel inter se seniority between the general category
candidate and the earlier promoted reserved category
candidate under the reservation policy, for promotion to the
higher general vacancy. The equality principle requires
exclusion of the factor of extra weightage of earlier
promotion to a reserved category candidate because of
reservation alone, when he competes for further promotion
to a general category with a general category candidate,
senior to him in the panel. Any other view would amount to
reverse discrimination and violative of the guarantee of
OP(CAT) Nos.102 & 149/2020
equality in Articles 14 to 16.
16. We respectfully concur with the view in Union of
India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC
(L&S) 1 : (1995) 31 ATC 813 : JT (1995) 7 SC 231] , that
seniority between the reserved category candidates and
general candidates in the promoted category shall continue
to be governed by their panel position i.e. with reference to
their inter se seniority in the lower grade. The rule of
reservation gives accelerated promotion, but it does not
give the accelerated "consequential seniority". If a
Scheduled Caste/Scheduled Tribe candidate is promoted
earlier because of the rule of reservation/roster and his
senior belonging to the general category is promoted later
to that higher grade the general category candidate shall
regain his seniority over such earlier promoted Scheduled
Caste/Tribe candidate. As already pointed out above that
when a Scheduled Caste/Tribe candidate is promoted earlier
by applying the rule of reservation/roster against a post
reserved for such Scheduled Caste/Tribe candidate, in this
process he does not supersede his seniors belonging to the
general category. In this process there was no occasion to
examine the merit of such Scheduled Caste/Tribe candidate
vis-à-vis his seniors belonging to the general category. As
such it will be only rational, just and proper to hold that
when the general category candidate is promoted later from
the lower grade to the higher grade, he will be considered
senior to a candidate belonging to the Scheduled
Caste/Tribe who had been given accelerated promotion
against the post reserved for him. Whenever a question
arises for filling up a post reserved for Scheduled
Caste/Tribe candidate in a still higher grade then such
OP(CAT) Nos.102 & 149/2020
candidate belonging to Scheduled Caste/Tribe shall be
promoted first but when the consideration is in respect of
promotion against the general category post in a still higher
grade then the general category candidate who has been
promoted later shall be considered senior and his case shall
be considered first for promotion applying either principle of
seniority-cum-merit or merit-cum-seniority. If this rule and
procedure is not applied then result will be that majority of
the posts in the higher grade shall be held at one stage by
persons who have not only entered service on the basis of
reservation and roster but have excluded the general
category candidates from being promoted to the posts
reserved for general category candidates merely on the
ground of their initial accelerated promotions. This will not
be consistent with the requirement or the spirit of Article
16(4) or Article 335 of the Constitution."
12. It is settled law and as held by the Apex Court in
R.K.Sabharwal and Others v. State of Punjab [(1995) 2 SCC
745] that reserved category candidates can compete for the non-
reserved posts, as well. The question to be considered is whether
the promotion is based on the relative merit of the parties or
based on seniority in that particular cadre. There is no dispute
about the fact that in the cadre of Loco Pilot (Goods), certain
posts are reserved for SC/ST category and certain posts are
unreserved. There is no dispute about the fact that the reserved
OP(CAT) Nos.102 & 149/2020
category can be filled up only by candidates coming under the
said category. But as far as unreserved seats are concerned,
anybody including reserved candidates can compete for the said
post.
13. The question to be considered in the present case is
whether respondents 4 to 6 in the OAs were promoted on merit or
based on their seniority in that particular cadre. Learned counsel
for the Railways has also a case that the contesting applicants
were not in the feeder category. It is brought to our notice by the
counsel appearing for those applicants that even respondents 4
to 6 were promoted to the post after granting relaxation in which
event the same principle would apply for the unreserved category
of persons as well. They were also qualified to be promoted to the
post of Loco Pilot (Shunting) which is a feeder category. But
without doing so, by giving relaxation, the reserved category
candidates alone were granted relaxation.
14. As already stated, the principal question to be
considered is whether the undertaking given by the Solicitor
General before the Apex Court still holds good. The order dated
5/6/2018 of the Apex Court only indicates that the promotion
OP(CAT) Nos.102 & 149/2020
shall be carried out in accordance with law. As rightly pointed out
by learned counsel for respondents, the said order cannot be
interpreted to mean that reserved category members can be
promoted to unreserved posts. Apparently, the Railway Board's
clarification dated 19/6/2018 based on OM dated 15/6/2018
cannot be utilized for effecting promotions of reserved candidates
to unreserved vacancies unless it is based on merit. Therefore,
the Tribunal was justified in placing reliance on the order of the
Hyderabad Bench in OA No.021/964/2017, which view had been
consistently taken by Bombay High Court as well as the High
Court of Delhi. Hence we have no hesitation to uphold the order
passed by the Tribunal.
In the aforesaid circumstances, OP(CAT) Nos.102 &
149/2020 are dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
Rp JUDGE
OP(CAT) Nos.102 & 149/2020
APPENDIX OF OP (CAT) 102/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORIGINAL APPLICATION
NO.368/2019.
ANNEXURE A1 A TRUE COPY OF PROVISIONAL SENIORITY
LIST OF ALP/SR. ALP DATED 04/04/2014
ISSUED BY THE RESPONDENTS.
ANNEXURE A2 KALLUVETTANKUZHI, VENGANOOR P.O.,
THIRUVANANTHAPURAM - 695 523.
ANNEXURE A3 A TRUE COPY OF RBE NO.117/2016 DATED
30/09/2016.
ANNEXURE A4 A TRUE COY OF OFFICE ORDER
NO.19/2019/ELE(OP) DATED 09/07/2018 OF
THE 3RD RESPONDENT.
ANNEXURE A5 A TRUE COPY OF RBE NO.101/2008 DATED
22/08/2008.
ANNEXURE A6 A TRUE COPY OF THE REPRESENTATION DATED
30/01/2019 SUBMITTED BEFORE THE
RESPONDENTS.
EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED
BY THE RAILWAYS.
ANNEXURE R1(A) A TRUE COPY OF THE ORDER PASSED BY THE
HONOURABLE SUPREME COURT ON 05/06/2018
IN SLP (C) NO.31288/2017.
ANNEXURE R1(B) A TRUE COPY OF THE RBE NO.91/2018 DATED
19/06/2018.
ANNEXURE R1(C) A TRUE COPY OF THE ORDER
O.O.NO.53/2018/ELE.(OP) DATED
28/11/2018.
OP(CAT) Nos.102 & 149/2020
ANNEXURE R1(D) A TRUE COPY OF THE ORDER
O.O.NO.20/2019/ELE(OP) DATED 21/05/2019.
ANNEXURE R1(E) A TRUE COPY OF THE LIST OF WILLING
PERSONS TO BE PROMOTED AS LP (GOODS).
EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED
BY RESPONDENTS 4 TO 6.
ANNEXURE R6(A) TRUE COPY OF THE OFFICE ORDER
NO.53/2018/ELE.(OP) DATED 28/11/2018.
ANNEXURE R6(B) A TRUE COPY OF THE OFFICE ORDER
NO.20/2019/ELE(OP) DATED 21/05/2019.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED
26/04/2019 IN OA 021/0964/2017 PASSED BY
THE C.A.T., HYDERABAD BENCH.
EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE
C.A.T., ERNAKULAM BENCH IN OA
180/00368/2019 DATED 17/12/2019.
EXHIBIT P6 A TRUE COPY OF THE SENIORITY LIST OF LP
(SHUNTING).
EXHIBIT P7 A TRUE COPY OF A PRINTOUT TAKEN FROM THE
WEBSITE OF THE HON.BLE SUPREME COURT
REGARDING THE CASE DETAILS OF SLP (C)
NO.31288/2017.
EXHIBIT P8 A TRUE COPY OF THE RECORD OF PROCEEDINGS
IN SLP NO.28306/2017 DATED 05/06/2018.
EXHIBIT P9 A TRUE COPY OF THE CAUSE TITLE OF
JARNAIL SINGH'S CASE SPECIFYING THE
NUMBER OF CASES TAGGED ALONG WITH IT AS
STATED IN (2018) 10SCC 396.
RESPONDENT'S EXHIBITS
OP(CAT) Nos.102 & 149/2020
EXT.R1(A) TRUE COPY OF REPLY OBTAINED UNDER RTI
DATED 27.10.2020 ALONG WITH THE
ENCLOSURES.
EXT.R1(B) TRUE COPY OF LETTER DATED 5.10.2020
EXT.R1(C) TRUE COPY OF OFFICE ORDER DATED
23.9.2020
OP(CAT) Nos.102 & 149/2020
APPENDIX OF OP (CAT) 149/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE HON'BLE
CENTRAL ADMINISTRATIVE TRIBUNAL DATED
17.12.2019 IN THE ORIGINAL APPLICATION
NO.180/00368/2019.
EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION
NO.368 OF 2019 DATED 22.05.2019 ALONG
WITH THE ANNEXURES.
ANNEXURE A4 TRUE COPY OF THE OFFICE ORDER
NO.16/2019/ELE (OP) DATED 15.05.2019.
ANNEXURE A1 TRUE COPY OF THE PROVISIONAL SENIORITY
LIST OF ALP/SR ALP DATED 4.4.2014
ISSUED BY RESPONDENTS.
ANNEXURE A2 TRUE COPY OF THE RBE NO.126/2010 DATED
1.9.2010.
ANNEXURE A3 TRUE COPY OF THE RBE NO.117/2016 DATED
30.09.2016.
ANNEXURE A5 TRUE COPY OF THE RBE NO.101/2008 DATED
22.08.2008.
ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED
30.01.2019 SUBMITTED BEFORE THE
RESPONDENTS.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED
11.10.2019 FILED BY THE OFFICIAL
RESPONDENTS (RAILWAYS) ALONG WITH ITS
ANNEXURES.
ANNEXURE R1(a) TRUE COPY OF THE ORDER PASSED BY THE
HON'BLE SUPREME COURT ON 05.06.2018 IN
SLP(C) NO.31288/2017.
OP(CAT) Nos.102 & 149/2020
ANNEXURE R1(b) TRUE COPY OF THE RBE NO.91/2018 DATED
19.6.2018.
ANNEXURE R1(c) TRUE COPY OF THE ORDER
O.O.NO.53/2018/ELE.(OP) DATED
21.05.2019.
ANNEXURE R1(d) TRUE COPY OF THE LIST OF WILLING
PERSONS TO BE PROMOTED AS LP (GOODS).
ANNEXURE R1(e) TRUE COPY OF THE LIST OF WILLING
PERSONS TO BE PROMOTED AS LP (GOODS).
EXHIBIT P4 TRUE COPY OF THE REPLY DATED 11.11.2019
FILED BY THE PETITIONERS HEREIN WHO ARE
THE RESPONDENTS IN 4 TO 6 ALONG WITH
ITS ANNEXURES.
ANNEXURE R6(a) TRUE COPY OF THE OFFICE ORDER
NO.53/2018/ELE (OP) DATED 28.11.2018.
ANNEXURE R6(b) TRUE COPY OF THE OFFICE ORDER
NO.20/2019/ELE (OP) DATED 21.05.2019.
True Copy
PS to Judge
Rp
