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Union of India & Ors. Vs. Gopal Meena & Ors.

[Civil Appeal No. 3314 of 2010]

[Civil Appeal No. 5933 of 2010 and Civil Appeal No. 9436 of 2010]

Hemant Gupta, J.

1. The present three appeals have been preferred by the Union of India; two appeals viz. Civil Appeal No. 3314 of 2010 and Civil Appeal No. 5933 of 2010 arise out of an order passed by the Central Administrative Tribunal1, affirmed by the High Court of Delhi and High Court of Punjab & Haryana, directing separate zone of consideration for promotion of Scheduled Caste/Scheduled Tribe candidates to the post of Superintendent in the Customs and Central Excise Commissionerate from the post of Inspector, whereas the Civil Appeal No. 9436 of 2010 is directed against a similar direction by the High Court of Delhi but in respect of Indo-Tibetan Border Police for promotion to the post of Assistant Commandant from the post of Subedar Major Stenographer.

2. For the sake of brevity, the facts are quoted from the Civil Appeal No. 3314 of 2010. The grievance of the applicants2, belonging to the Scheduled Tribes, was that there is backlog of vacancies for the post of Superintendent which have not been filled up for the reason that the candidates are not available within the zone of consideration. Therefore, to fill up the 29 posts of Superintendent, it was prayed that a separate zone of consideration be created for the Scheduled Tribe candidates so that the vacancies in the cadre of Superintendent meant for them could be filled up.

3. The Tribunal found that the Office Memorandum dated 30.9.1983 which restricted the zone of consideration to five times of the posts to be illegal. Reliance was placed upon the orders passed by this Court in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh v. U.P. State Electricity Board & Ors.3; C.D. Bhatia & Ors. v. Union of India & Ors.4; and, Basudeo Anil & Ors. v. Union of India & Ors.5 wherein the Office Memorandum dated 30.9.1983 restricting the zone of consideration was found to be illegal.

4. The attention of the Court was drawn to the earlier Office Memorandum dated 24.12.1980 which contemplated that the zone of consideration can be extended to five times the number of vacancies and the Scheduled Tribe candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them. The relevant extract reads thus:

"(a) The Department Promotion Committee (DPC) shall for 'the purpose of determining the number of officers who should be considered from out of those eligible officers in the feeder grade(s) restrict the field of choice as under, with reference to the number of clear regular vacancies proposed to be filled in the year.

No. of vacancies

No. of officers to be considered

(1)

(2)

1

5

2

8

3

10

4 or more

three times the number of vacancies

(b) Where, however, the number of eligible officer in the feeder grade(s) is less than the number in Col. (2) above, all the officers so eligible should be considered.

(c)Where adequate number of SC/ST candidates are not available within the normal field of choice as above, the field of choice may be extended to 5 times the number of vacancies and the SC/ST candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them.

Officers belonging to SC/ST selected for promotion against vacancies reserved for them from out of the extended field of choice under sub para (e) above, would however be placed en bloc below all the other officers selected from within the normal field of choice."

5. It is thereafter, an Office Memorandum was issued on 30.4.1983 for regulating ad-hoc promotions for consideration of cases for Scheduled Caste and Scheduled Tribe candidates with reference to an earlier Office Memorandum dated 6.4.1979. The relevant clauses read thus:

"3. Since ad hoc promotions are made on the basis of seniority-cum-fitness, all the Scheduled Castes/Scheduled Tribes candidates covered in the relevant seniority list within the total number of such vacancies against which ad hoc promotions are to be made, should be considered in the order of their general seniority as per the gradation list, on the principle of seniority-cum-fitness and if they are not adjudged unfit, they should all be promoted on adhoc basis.

4. If, however, the number of SC/ST candidates found fit within the range of actual vacancies is less than the number of vacancies identified as falling to their share if the vacancies were filled on a regular basis vide (2) above then additional SC/ST candidates to the extent requested should be located by going down the seniority list, provided they are eligible and found fit for such ad hoc appointment. This procedure should be adopted on every occasion on which ad hoc appointment is resorted to.

xx xx xx

7. For regular promotions when eventually made the procedures and instructions laid down in the Brochure will continue to apply." 6. Another Office Memorandum was issued on 30.9.1983 pertaining to ad-hoc promotion by the Department of Personnel and Administrative Reforms wherein the zone of consideration for Scheduled Caste and Scheduled Tribe candidates was restricted up to five times. The relevant clause reads thus:

"2. It has not been decided that the Scheduled Castes/Scheduled Tribes candidates who are within the number of actual vacancies should be considered in accordance with their general seniority on the principle of seniority cum fitness and if they are not adjudged unfit, they should all be promoted on ad hoc basis. If, however, the number of Scheduled Castes/Scheduled Tribes candidates found fit within the range of actual vacancies is less than the number of vacancies identified as falling to their share, than additional Scheduled Castes/Scheduled Tribes candidates to the extent required should be located by going down the seniority list but within 5 times the number of vacancies being filled on a particular occasion, subject, of course, to their eligibility and fitness."

7. The order in Basudeo Anil dealt with Office Memorandums dated 30.4.1983 and 30.9.1983 wherein the appeal was allowed and it was held that the condition of restricting the number of Scheduled Caste and Scheduled Tribe candidates to five times of the total number of such vacancies as provided in Office Memorandum dated 30.9.1983 is not legal. It was observed as under:

"In the aforesaid premises, the question for consideration is whether by the subsequent Office Memorandum dated 30th September, 1983 can it be said that the rights of the reserved category candidates to get their due has been taken away. It is undisputed that in the service in question there has been a specified percentage of reservation, and in fact that was reflected also in the Office Memorandum of April, 1983, which provided for the procedure to be adopted for appointment of the Vice-Principal on ad-hoc basis. We see no reason for issuance of the second Memorandum of the 30th September, 1983, which in fact taken away the rights conferred upon the reserved category candidates under the Office Memorandum of the 30th April, 1983, and which is also in accordance with the constitutional mandate. In that view of the matter, we quash the subsequent Office memorandum dated 30th September, 1983 issued by the Ministry of Home Affairs in the Department of Personnel and allow this appeal."

8. The Office Memorandum dated 30.9.1983 was thus withdrawn on 15.3.2002 in view of the judgment of this Court in Basudeo Anil and it was held that ad-hoc promotions would be regulated as per instructions dated 30.4.1983. The relevant clause of Office Memorandum dated 15.3.2002 reads thus:

"2. The Supreme Court in its judgement dated 7 .9.2000 in the case of Union of India and others Vs. Shri. Basudeo Anil and others (Civil Appeal No.1194/1992) has quashed the Department of Personnel and Administrative Reforms O.M. No.36011/14/83- Estt.(SCT) dated 30.9.1983. It has, therefore, been decided to withdraw the Department of Personnel and Administrative Reforms' O,M. No.36011/14/83- Estt.(SCT) dated 30.9.1983 with immediate effect. Thus claims of the Scheduled Castes/Scheduled Tribe candidates in the matter of ad hoc promotions would henceforth be regulated as per instructions contained in Department of Personnel and Administrative Reforms' O.M.No.36011/14/83- Estt.(SCT) dated 30.4.1983."

9. An Office Memorandum was issued on 22.4.1992 wherein zone of consideration of officers for promotion by selection was prescribed in continuation of Office Memorandum dated 24.12.1980. The relevant extract reads thus:

"In this Department's O.M. No. 2201 1/3/76-Estt. (D) dated the 24th December, 1980 the zone of consideration of officers for promotion by selection was prescribed as under:-

No. of vacancies

No. of officers to be considered

1

5

2

8

3

10

4 or more

three times the number of vacancies

It was also laid down that where adequate number of SC/ST candidates are not available within the normal field of choice as indicated above, the field of choice may be extended to five times the number of vacancies and the SC/ST (and not any other) coming within me extended field of choice be considered against the vacancies reserved for them. This provision relating to an extended zone of five times the number of vacancies in respect of SC/ST has been retained in O.M. No, 22011/5/86-Estt. (D) dated 10.3.89 and 10.4.89 and also in O.M No 22011/1/90-Estt. (D) dated 12.10.90 in which the normal zone of consideration for general category was reduced for vacancies numbering 5 and above,

2. It is hereby clarified that the intention is to have an extended zone of five times the number of vacancies in all cases where adequate number of SC/ST candidates are not available in the normal zone of a smaller size. For a single vacancy, since the normal zone itself is 5 i.e. five times the number of vacancies there is no intention to extend the zone. The normal zone and the extended zone for vacancies will accordingly be as follows:

No. of vacancies

Normal Zone

Zone for consideration for SC/ST

1

5

5

2

8

10

3

10

15

4

12

20

5 and above

Twice the number of vacancies + 4

5 times the number of vacancies "

10. Subsequently, another Office Memorandum was issued on 6.1.2006. It was communicated after review of the size of zone of consideration as under:

"The size of zone of consideration for, promotion by 'selection' as prescribed vide DoPT O.M. No. 22011/1/90- Estt.D dated 12th October 1990 read with O.M. No. 22011 / 1/90-Estt- (D) dated 22nd April 1992 is as under:

No. of vacancies

Normal size of zone of consideration

Extended Zone of consideration for SC/ST

1

5

5

2

8

10

3

10

15

4

12

20

5 and above

Twice the number of vacancies + 4

5 times the number of vacancies "

xx xx xx

2. ...............Accordingly, a need has arisen for review of the size of zone of consideration. Having a size of zone of consideration larger than is necessary in the revised context would lead to unnecessary paper work, which may also lead to delay in convening DPCs. However, the zone of consideration has still to be wide enough to cater to the needs of the Department/cadre authorities for giving an extended panel against empanelled officers who are on deputation or are expected to proceed shortly; who have retired or will be retiring in the course of the vacancy year or who have refused promotion and are under debarment. The size should also be sufficient to take care of officers in the feeder grade whose cases are to be placed in 'sealed cover' and also of those who do not meet the prescribed benchmark. Thus, there is a need for optimizing the size of zone of consideration.

3. The matter has been considered carefully. Keeping in view the considerations in para-2 above, it has been decided to modify the existing provisions relating to size of zone of consideration as under:"

11. The argument of Ms. Bhati is that the order in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh is a consent order, which cannot be treated as precedent, which is evident from the following operative part of the order: "In view of the averments made in the affidavit quoted above, it is not necessary for us to go into the various questions canvassed before us. The contentions of the appellants before us have been substantially met with by the Board. In view of the stand taken by the Board in its aforesaid affidavit, the judgement of the High Court was become redundant and it shall not be operative. The appeal is disposed of with no order as to costs."

12. In C.D. Bhatia, this Court had passed an order based upon the order in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh giving liberty to the petitioner to approach the Government in order to seek enforcement of the law laid down. The operative part of the said order is as under: "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 by this Court. Special leave petitions are disposed of."

13. It is contended that the order in C.D. Bhatia is an order in a Special Leave Petition affirming an order passed by the Tribunal, thus cannot be treated to be a precedent. Reliance is placed upon an order passed by this Court in Kunhayammed v. State of Kerala6, and Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.7. It was further argued that both orders, as referred above, were referred to in Basudeo Anil, but the fact that order in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh was based upon a concession and the order in C.D. Bhatia was an order in Special Leave Petition was not brought to the notice of the Court. Moreover, the Office Memorandums dated 24.12.1980, and dated 22.4.1992 dealing with substantive promotion by the Departmental Promotion Committee were not brought to the notice of the Court.

14. It has been further contended that there cannot be a separate zone of consideration for each category of the officials. The zone of consideration is in respect of the candidates falling in the seniority list. The candidates belonging to Scheduled Caste and Scheduled Tribe were given relaxation to extend zone of consideration up to five times of the vacancies. It is argued that the effect of the order passed by the High Court would be that all eligible candidates, at whatever position in the seniority list, would fall within the zone of consideration, though they may be lowest in the list. Such creation of zone of consideration is not in consonance with the efficiency in the service. Still further, enlarging the zone of consideration for Scheduled Caste and Scheduled Tribe to five times cannot be said to be arbitrary, irrational or illegal, which could be struck down in exercise of power of judicial review.

15. The issue in Basudeo Anil was restricted to the Office Memorandum dated 30.9.1983 which was a clarification to the Office Memorandum dated 30.4.1983 in respect of ad-hoc promotions. The regular or substantive promotions have to be carried by Office Memorandum dated 24.12.1980 or other Office Memorandums issued from time to time.

16. The Office Memorandum dated 30.4.1983 was not to amend the Office Memorandum dated 24.12.1980. This OM was in reference to Office Memorandum dated 16.4.1979 asking the Departments to resort to ad-hoc promotions, when it becomes inescapable in public interest. For regular promotions, the procedural instructions laid down in the brochure was to apply (Clause 7 of the OM dated 30.4.1983). Therefore, the Office Memorandum dated 30.4.1983 was only dealing with ad-hoc promotions and not with substantive promotions. Hence, the office Memorandum dated 24.12.1980 would continue to apply in respect of substantive promotions.

17. On the other hand, Dr. M.P. Raju, learned counsel for the candidates quoted the order passed by the High Court and contended that there are about 29 posts of Superintendent in the Custom and Central Excise Commissionerate which are required to be filled up by Scheduled Tribe candidates. The said posts have not been filled up only for the reason that reasonable number of Scheduled Tribe candidates do not come within the zone of consideration. Therefore, the order of the High Court is fair and reasonable so as to give effective meaning to the policy of reservation for the Scheduled Caste and Scheduled Tribe.

Reliance is based upon the three orders, as mentioned above. In addition thereto, reliance has been placed upon a judgment of this Court reported as R.K. Sabharwal & Ors. v. State of Punjab & Ors.8 to contend that filling of posts or vacancies through reservation has to be post-based and that the roster points meant for Scheduled Tribes should only be filled by the Scheduled Tribes alone. Thus, applying the principle of reservation, general category and reserved category have to be treated separately and without clubbing. It was thus argued that there has to be a separate zone for each category i.e., for general, Scheduled Caste and Scheduled Tribe, rather than the common seniority list which is prevalent for determining zone of consideration for promotion. Accordingly, a separate zone of consideration for the Scheduled Tribe candidates is in fact the only way to give effect to the reservation policy.

18. It is also contended that after the year 2002, if the backlog vacancies are not filled up, the Union can de-reserve those vacancies, thus, jeopardizing the interests of the reserved category candidates. It is argued that a joint zone of consideration is thus a gross violation of Article 16 (4A) of the Constitution. The basic reason for non-filing of backlog vacancies in promotion quota is the application of a common zone of consideration which is prepared as field of choice for promotion. It is also averred that present matter is a case of a special drive to fill the backlog vacancies reserved for Scheduled Caste and Scheduled Tribe candidates in promotion quota, therefore, the inclusion of general category candidates while preparing zone of consideration for promotion seems to be illogical and against the very purpose of reservation.

Therefore, separate non-joint zone of consideration should be prepared for each Scheduled Caste and Scheduled Tribe category without including general category candidates. Reliance is placed upon Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors.9 wherein the classification limiting the zone of consideration was found to be illegal, unreasonable and arbitrary. Reference was also made to Ajit Singh & Ors. (II) v. State of Punjab & Ors.10, S.B. Mathur & Ors. v. Chief Justice of Delhi High Court & Ors.11 and Duddilla Srinivasa Sharma & Ors. v. V. Chrysolite12 to contend that limiting the zone of consideration and shortlisting the candidates has to be reasonable, non-arbitrary, rational and having a nexus with the objective sought to be achieved. Dr. Raju has also placed reliance upon P. Sheshadri v. Union of India & Anr.13 to contend that joint select lists for Scheduled Caste/Scheduled Tribe and general category would defeat the purpose of reservation by pushing the eligible Scheduled Tribe candidate out of the zone of consideration.

19. We have heard learned counsel for the parties and find that the entire case of the candidates has been projected in untenable manner. 20. In P. Sheshadri, the Office Memorandum dated 24.12.1980, referred to by the learned counsel for the appellant, along with the other Office Memorandums were the subject matter of consideration. This Court held as under:

"11. .....Further clause (ii) of para 2.3.2. of OM dated 10-3- 1989 contemplates that selection against vacancies reserved for Scheduled Castes and Scheduled Tribes will be made only from those Scheduled Caste/Scheduled Tribe officers who are within the normal zone of consideration prescribed by the Department of Personnel and AR vide OM No. 22011 dated 24-12-1980. It further contemplates that where (sic adequate) number of Scheduled Caste/Scheduled Tribe candidates are not available within the normal field of choice, it may be extended to five times the number of vacancies and Scheduled Caste/Scheduled Tribe candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them.

If candidates from Scheduled Castes and Scheduled Tribes obtained on the basis of merit with due regard to seniority, on the same basis as others, are less than the number of vacancies reserved for them, the difference should be made up by selecting candidates of these communities, who are in the zone of consideration, irrespective of merit and benchmark but who are considered for promotion and officers belonging to Scheduled Castes and Scheduled Tribes selected for promotion against vacancies reserved for them from within the extended field of choice would however be placed en bloc below all the other officers selected from within the normal field of choice...."

21. We find that the Tribunal and the High Courts have missed the real controversy. The Government of India had issued an Office Memorandum dated 26.8.2004 to fill backlog vacancies reserved for Scheduled Caste and Scheduled Tribe in promotion quota as a special drive. Such Office Memorandum was not relating to the Customs and Central Excise Commissionerate or the Indo Tibetan Border Police but to all the employees of the Central Government. The candidates in the Office of Customs and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration.

22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings:

"27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents.

28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST.

29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs."

23. The order impugned in the Original Application was the order dated 4.2.2005 rejecting the representations of some of the candidates for promotion that the candidates have joined Central Excise (Delhi Zone) as Inspector on Inter Commissionerate transfer basis in the year 2003. The Tribunal has not examined the question of seniority on account of Inter Commissionerate transfer. The order dated 4.2.2005 was set aside and a direction was issued to grant same treatment to SC/ST candidates in ad hoc promotions as well as in regular promotions.

24. After the said decision of the Tribunal, DoPT issued revised guidelines for optimizing the size of zone of consideration on 6.1.2006 independent of the order of the Tribunal dated 19.10.2005, which has been adversely commented upon by the Tribunal.

25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up.

26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC).

27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion.

28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive.

29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: -

(i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and

(ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise.

1. Therefore, we find the orders of the High Courts are clearly erroneous and not sustainable in law. Consequently, the orders passed for regular promotion by extending the zone of consideration do not arise. The same are set aside and the appeals are allowed.

.............................................J. (HEMANT GUPTA)

.............................................J. (VIKRAM NATH)

NEW DELHI;

AUGUST 10, 2022.

1 For short, the 'Tribunal'

2 For short, the 'candidates'

3 Civil Appeal No. 4026 of 1988 decided on 23.11.1994

4 Petition for Special Leave to Appeal (Civil) No. 14566 of 1995 decided on 20.10.1995

5 Civil Appeal No. 1194 of 1992 decided on 7.9.2000

6 (2000) 6 SCC 359

7 (2019) 4 SCC 376

8 (1995) 2 SCC 745

9 (2021) 11 SCC 401

10 (1999) 7 SCC 209

11 1989 Supp (1) SCC 34

12 (2013) 16 SCC 702

13 (1995) 3 SCC 552


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