Union of India & Ors Vs. Brij Lal Thakur
[1997] INSC 306 (17 March 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
O R D
E R Delay condoned. Leave granted.
We
have heard learned counsel on both sides.
This
appeal by special leave arises from the order passed on March 31, 1995 by C.A.T., New Delhi in O.A.
No.1801/94.
The
post of E.C.G. Technician in the Grade of Rs.1200- 2040 became vacant on November 30, 1993 in the Central Hospital, Northern Railway due to retirement, Mrs. William Chand, a
general candidate, holding that post. For promotion of Theater Assistants to
the said post, trade test was conducted in which Smt. Prakash Kaur belonging to
Scheduled Castes and two others were called. The vacancy to be filled up was
reserved for Scheduled Castes in a carry forward post as per the rotation of
the roster. In the trade test held on December 8, 1994, Smt. Prakash Kaur was found
suitable and she was accordingly promoted as E.C.G. Technician w.e.f. December 9, 1994. The respondent an unsuccessful
candidate filed O.A. in the Tribunal contending that since the post E.C.G.
Technician is the solitary post, reservation as per roster is unconstitutional
as it would lead to 100% reservation. The contention found favour with the
Tribunal.
Accordingly,
it set aside the appointment by promotion of Smt. Prakash kaur and gave
direction to treat it as unreserved post and to consider the case of the
respondent for appointment to the post according to Rules. The controversy is
no longer res integra. This Court in Union
of India & Anr. v. Madhav s/o Gajanan Chaubal & Anr. [JT 1996 (9) SC
320] by a Bench of three judges considered the entire case law following the
Constitution Bench judgments in A.R. Choudhury v. Union of India & Ors. [(1974)
1 SCC 87], Commissioner of Commercial Taxes v. D.Sethu Madhva Rao [(1996) 7 SCC
512], Venkteswarlu v. Govt, of A.P. [(1996) 5 SCC 167] and State of Bihar v. Bageshwardi Prasad [(1995) supp.
1 SCC 432]. It was held that "even though there is a single post, if the
Government have applied the rule of rotation and roster point to the vacancies
that had arisen in the single point post and were sought to be filled up the
candidate belonging to the reserved categories at the point on which they were
eligible to be considered, such a rule is not violative of Articles 14 and
16(1) of the Constitution".
In
that case the post of Secretary in the National Savings Scheme Service was a
single point post to which 40 point roster was maintained to the vacancy in the
said post. When the Scheduled Tribes candidate was selected for promotion on
the basis the rule of rotation, it was held by the Tribunal that the promotion
was violative of Articles 14 and 16(1) of the Constitution. Reversing that
order it was held that:
"Thus,
the Government have adhered to the rule of rotation to a single post and the 40
point roster to the single post was applied and the vacancy reserved for the
Scheduled Castes and Scheduled Tribes as and when had arisen, was sought to be
filled up, when the candidates were available. Thus, we hold that the roster
point No. 4 in the vacancy of the Secretary reserved for the Scheduled Tribes
was valid and constitutional. When the officer available and was eligible to be
considered, he was entitled to be considered in accordance with the rules and
be promoted as Secretary.
The
Tribunal, therefore, was not right in directing that the rule of rotation to
the single post could not be applied. It is brought to our notice that the
original promotee died pending the proceedings and, therefore as and when
vacancy arises as per rule of rotation as per roster the same would be filled
up in accordance with law." Accordingly, we hold that appointment by
promotion to the single post of E.C.G. Technician applying 40 point post and
rule of rotation, consideration of Smt. Prakash Kaur to the said vacancy is not
violative of Articles 14 and 16(1) of the Constitution. The promotion is legal
and valid. The Tribunal, there fore, was incorrect in setting aside the
promotion of Mrs. Prakash Kaur.
The
appeal is accordingly allowed. The order of the Administrative Tribunal stand
set aside. The petition stands dismissed. No costs.
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