K. Manorama Vs. Union
of India & Ors. [2010] INSC 809 (29 September 2010)
Judgment
Reportable IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2379 OF
2005 K. Manorama ...Appellant Versus Union of India rep. by Genl. Manager
Southern Railway & Ors. ...Respondents
Gokhale J.
1.
This
appeal seeks to challenge the judgment and order dated 28.1.2003 rendered by
the Madras High Court allowing Writ Petition No. 1311 of 1999 filed by the
Respondent Nos. 1 and 2, and setting aside the order passed by the Central
Administrative Tribunal dated 27.11.1998 which had allowed the Original
Application No. 891 of 1996 filed by the appellant herein.
The O.A. filed by the
appellant thus stood dismissed by the impugned judgment and order of the High
Court.
2.
Short
facts leading to this appeal are as follows:- At the relevant time in November
1994, the appellant was working as a Chief Law Assistant which was a Group-`C'
post in the Southern Railways. The post higher to this post is that of the
Assistant Law Officer which is a Group-`B' post. At the relevant time the total
cadre strength of Assistant Law Officers in Southern Railway was three.
Initially when `Assistant Law Officer' was a single post cadre, in the year
1991, it was filled by an open category candidate. Subsequently, when two more
posts were created in the year 1994, reservation was applicable. The posts were
to be filled on the basis of seniority-cum-suitability. A notification holding
10 senior most candidates eligible for being considered for the two posts was
issued on 10.11.1994.
(The second
respondent herein is the Chief Personal Officer of Southern Railways). To
determine their suitability, a written examination was held.
Eight Law Assistants
obtained qualifying marks and became eligible for being called for the
interview (one out of them opted out). The concerned committee recommended
Respondent Nos. 3 and 4 for those two posts. Out of them, Respondent No. 3 is a
Scheduled Caste candidate. Accordingly, the promotion order for both of them
was issued on 26.5.1995.
3.
The
appellant also belongs to a Scheduled Caste and was of the view that the
Respondent No. 3 (Mr. M. Siddiah), was promoted to the post of Assistant Law
Officer on his merit and not because he was a Scheduled 3 Caste candidate. It
was her contention that instead of Respondent No. 4 (Mr. K. Rajagopalan Nair)
belonging to the open category, she should have been promoted to the post of
Assistant Law Officer on the basis of her status as a Scheduled Caste
candidate. She, therefore, represented to the Chairman of the Railway Board on
14.2.1996 but there was no response.
She, therefore, filed
the above referred O.A. in the Central Administrative Tribunal (hereinafter
referred to as Tribunal) at Chennai. The respondents Nos. 1 and 2 filed their
reply statement before the Tribunal and pointed out that as per the Railway
Board's decision dated 29.7.1993 in small cadres having less than 4 posts,
reservation had to be provided as per the 40 point roster when no SC/ST
candidate was available in the Cadre. As per model 40 point roster the first
point will have to be filled by a Scheduled Caste candidate, and the next two
points were to be treated as unreserved. In para 1 & 2 of their reply the
Respondent Nos. 1 and 2 stated as follows:- "In this selection, the roster
points to be filled up for the two vacancies were point Nos. 2 and 3. Both the
points are UR (i.e Un-Reserved) points. As the first point which was a SC point
was filled up by an UR candidate, being a single vacancy, out of the two
vacancies for which notification was issued, one post was treated as SC."
4.
The
appellant submitted before the C.A.T. that if a Scheduled Caste candidate
competes for a non-reserved post and is selected, he should not be counted
against the quota reserved for Scheduled Castes. According to the appellant, if
the senior most among eligible candidates belongs to a Scheduled Caste, on
being promoted, he should be treated as an open 4 category candidate and
should not be counted against the quota for Scheduled Castes. The judgment of a
Constitution Bench of this Court in R.K. Sabharwal and Ors. vs. State of Punjab
and Ors. [1995 (2) SCC 745] was relied upon in support.
5.
The
Central Administrative Tribunal accepted this submission and noted that the
preposition in the R.K. Sabharwal and Ors. (supra) had been reiterated in para
11 of Ajit Singh Januja and Ors. vs. State of Punjab and Ors. [1996 (2) SCC
715], wherein after referring to the judgment in R.K. Sabharwal (supra) a bench
of 3 Judges had observed that if a Scheduled Caste candidate has been appointed
/ promoted on his own merit, than such candidate shall not be counted towards
the percentage of reservation fixed for them as stated in R.K. Sabharwal's
case.
6.
The
Tribunal therefore, allowed the O.A. by its order dated 27.11.1998. It declared
that the selection of Respondent No. 3 was in an unreserved vacancy on his own
merit. It directed Respondents Nos. 1 and 2 to empanel the appellant in the
reserved category provided that she was qualified according to the marks and
seniority in the selection made, and if there was no SC candidate above her
either on marks or in seniority. The Selection of Respondent No. 4 was held to
be erroneous. However, since he had retired in the meanwhile, the emoluments
received were directed not to be disturbed. The Tribunal further directed that
the appellant if found fit, will be deemed to be entitled to the seniority in
the service from the date of 5 selection of Respondent No. 3, though she will
not get the salary till the date she actually assumed charge of the higher
post.
7.
Being
aggrieved by this judgment and order Respondent Nos. 1 and 2 filed Writ
Petition No. 1311 of 1999 in the High Court of Madras. The High Court allowed
the Writ Petition and set aside the order of the Tribunal.
Being aggrieved
thereby, the appellant has filed the present appeal.
8.
The
main-stay of the argument of the appellant was, as stated earlier, that since
Respondent No. 3 had been selected on merits he should not be considered as
occupying a Scheduled Caste seat. The Scheduled Caste vacancy must therefore go
to the next Scheduled Caste candidate as per the order of merit, and the
appellant was that next candidate.
Respondent No. 4 (Mr.
K. Rajagopalan Nair) should not have been therefore promoted as an open
category candidate and that post should have been allotted to the appellant.
The appellant relied upon the Railway Board order dated 29.7.1993 in this
behalf, which was issued to implement a full-bench decision of the Tribunal at
Hyderabad, which states that where ST/SC candidates were promoted on their own
merit, their seniority should not be counted as reserved candidates. The
relevant part of the Railway Board's letter dated 29.7.1993 clarifies as
follows in para (VI):- "(VI) Whether a person belonging to SC/ST promoted
on his own merit and seniority should be treated as reserved candidate for
counting available SC/ST candidates- 6 As per judgment of the Full Bench of
Central Administrative Tribunal/Hyderabad, the SC/ST candidates who have been
promoted on their own merit and seniority should not be counted as reserved
candidates. It has further been laid down in Board's letter dated 16.06.1992
that SC/ST candidate can be placed on the panel/select list even in excess of
the reserved quota in case such candidates qualify against general posts on merit/seniority.
These SC/ST candidate should be excluded for the purpose of counting the
available SC/ST candidates while computing the reserved quota."
9.
Now,
as far as this aspect is concerned, Respondent Nos. 1 and 2 had made it clear
that where the posts were less than 4, the 40 point roster was expected to be
applied. As per that roster the first point was meant for a Scheduled Caste
candidate and second and third points were meant for candidates from unreserved
category. There is a note below this model roster which reads as follows:-
"Note--If there are only two vacancies to be filled in a particular year,
not more than one may be treated as reserved and if there is only one vacancy,
it should be treated as unreserved. If on this account, a reserved point is
treated as unreserved, the reservation may be carried forward to the subsequent
three recruitment years."
10.
It
was submitted on behalf of Respondent Nos. 1 and 2 that in view of this note,
and the first vacancy in the year 1991 having been treated as unreserved, when
two vacancies occurred subsequently, one out of them was being treated as
reserved. This was as per the above note which stated that where the reserved
point is treated as unreserved, the reservation is to be carried forward. Respondent
Nos. 1 and 2 therefore, had to treat one of the two vacancies as a reserved
vacancy.
11.
In
our view, the submission of the respondents Nos. 1 and 2 is well taken. They
had to treat one out of the two vacancies which occurred in the year 1994 as reserved.
This is because the first point in the roster was otherwise meant for a
reserved candidate. Since, in the year 1991, it was a single post cadre, it had
been treated as unreserved. When the single post cadre became a multi-post
cadre, and consequently two seats became available in 1994, they had to treat
one out of the two seats as a reserved seat. The selection of Mr. Siddiah,
therefore, as a Scheduled Caste candidate cannot be faulted.
12.
The
submission of the appellant was that Respondent No. 3 had been selected on his
merit and that Mr. K.Rajagopalan Nair was placed in the panel contrary to the
Railway Board letter dated 14.4.1983. Respondents Nos. 1 and 2 had denied this
averment in para 10 of their additional reply before the Tribunal. In para 14
of its order the Tribunal observed as follows:- "14. Reference made in
paragraph 10 have no bearing on the point for decision in this case. It is also
the contention on behalf of the respondents that since respondent No. 3 is the
senior most in the SC quota he is empanelled. The question is, he has obtained
the highest number of marks in the said selection. Therefore, the question of
he being the SC candidate is evaporated on account of his being the meritorious
candidate in the entire selection. If respondent No. 4 has come up in the marks
over that of respondent No. 3 and the question of the respondent 3 being the
senior in the SC candidates, then respondent No. 3 would have been justified
being empanelled in the reserved vacancy. But that was not the case here.
13.
Respondents
Nos.1 and 2 point out that this finding is erroneous on facts. The chart of the
marks obtained by the candidates has been produced before us. The chart reads
as follows.
SELECTION FOR THE
POST OF ASSISTANT LAW OFFICER IN SCALE RS. 2000-3500 VIVA VOICE ON 27.04.1995
NUMBER OF VACANCIES 2 (SC-1: UR-1) COMMITTEE MEMBERS: 1. SDGM
2. FA & CAO
3. CPO
4. CELE SHRI R. MOHAN
DAS Sl. No. Name & Date of Date of Date of Educational Designation Birth
appointment promotion qualification to present grade 1. M. SIDDAIAH 04.08.43
16.6.65 9.5.85 B.Sc, B.L.
(SC) CLA/HQRS Marks
Obtained Total Remarks Total (200 marks) Professional Record of Personality
address & Ability service (25) leadership/Academic (150)
Technical/Qualification (25) 91 15 18 124 Sl. No. Name & Date of Date of
Date of Educational Designation Birth appointment promotion qualification to
present grade
2. K. 24.08.39
16.11.63 01.04.87 B.Sc., LLB RAJAGOPALAN NAIR ASST. SEC.
(ADHOC) RRT Marks
Obtained Total Remarks Total (200 marks) Professional Record of Personality
address & Ability service (25) leadership/Academic (150)
Technical/Qualification (25) 91 21 16 128 9 Sl. No. Name & Date of Date of
Date of Educational Designation Birth appointment promotion qualification to
present grade 3. V. 10.03.40 31.5.62 23.11.87 B.A., B.G.L. SUBRAMANIAN Diploma
in L.O. (ADHOC) Labour Laws ICF with Admn.
Law Marks Obtained
Total Remarks Total (200 marks) Professional Record of Personality address
& Ability service (25) leadership/Academic (150) Technical/Qualification
(25) 92 18 17 127 Sl. No. Name & Date of Date of Date of Educational
Designation Birth appointment promotion qualification to present grade
4. M. ABDUL 01.11.43
11.09.64 01.04.90 B.A, LLB KHADER CLA/DPO/O/MYS Marks Obtained Total Remarks
Total (200 marks) Professional Record of Personality address & Ability
service (25) leadership/Academic (150) Technical/Qualification (25) 92 17 15
124 Sl. No. Name & Date of Date of Date of Educational Designation Birth
appointment promotion qualification to present grade 5. K. MANORAMA 22.12.60
13.11.81 24.07.90 B.A., B.L. (SC) CLA/HQRS Marks Obtained Total Remarks Total
(200 marks) Professional Record of Personality address & Ability service
(25) leadership/Academic (150) Technical/Qualification (25) 91 15 16 122 10
Sl. No. Name & Date of Date of Date of Educational Designation Birth
appointment promotion qualification to present grade
6. R. 05.05.55
22.12.79 03.4.91 B.Sc, LLB MUTHUSAMY CLA/DPO/O/MAS Marks Obtained Total Remarks
Total (200 marks) Professional Record of Personality address & Ability
service (25) leadership/Academic (150) Technical/Qualification (25) 91 16 17
124 Sl. No. Name & Date of Date of Date of Educational Designation Birth
appointment promotion qualification to present grade
7. T.P. BHASKAR
26.08.55 31.07.91 24.7.91 MA, LLB CLA/MAS Marks Obtained Total Remarks Total
(200 marks) Professional Record of Personality address & Ability service
(25) leadership/Academic (150) Technical/Qualification (25) 95 15 15 125 (R.
MOHANDAS) (V. NATARAJAN) (P.MURUGAN)
__________________________________________________________________________
14.
As
can be seen from this chart it was Respondent No. 4 who had obtained the highest
marks i.e. 128. Mr. V. Subramanian and Mr. T.P. Bhaskar are next to him with
127 and 125 marks respectively. Thereafter, there are other candidates i.e. Mr.
Siddaiah, Mr. Abdul Khader and Mr. Muthusamy who all get 124 marks. Mr.
Siddaiah has been selected out of them, essentially because it was a Scheduled
Caste vacancy which came to 11 be allotted to him keeping aside other
candidates. Not only that, but he was placed at number one and respondent No. 4
(having higher marks) was placed at number two. The Tribunal held that if
Respondent No. 3 got marks lesser than that of Respondent No. 4, only then he
can be said to be selected against Scheduled Caste point. The Tribunal did not
realize that the third Respondent had in fact got marks lesser than the fourth
Respondent, and his selection was basically because he was a Scheduled Caste
candidate. In view of this position, there is no occasion to apply the
instruction contained in Railway Board's letter dated 29.7.1993 nor the
propositions in R.K. Sabharwal's judgment (supra) to the present case. Even
otherwise, the principle that when a member belonging to a Scheduled Caste gets
selected in the open competition field on the basis of his own merit, he will
not be counted against the quota reserved for Scheduled Castes, but will be
treated as open candidate, will apply only in regard to recruitment by open
competition and not to the promotions effected on the basis of seniority-cum-
suitability.
15.
The
appellant had argued before the High Court that the candidates who obtained 80%
marks or above are to be placed at the top indicating that they are to be
selected irrespective of the community factor.
In appellant's
submission Mr. M. Siddiah, had to be considered as one such candidate. Now the
two relevant rules 204.8 and 204.9 read as follows:- 12 "204.8 The
successful candidates shall be arranged as follows:
(1) Those securing
80% marks and above graded as `Outstanding'.
(2) Those securing
between 60% marks and 79% marks graded as `Good'.
204.9 The panel
should consist of employees who had qualified in the selection, corresponding
to the number of vacancies for which the selection was held. Employees securing
the gradation `Outstanding' will be placed on top followed by those securing
the gradation `Good' interse seniority within each group being maintained.' It
is to be noted, as seen from the marks which have been referred to earlier,
that none of the candidates obtained more than 80% marks, and therefore, could
not be considered as outstanding to be eligible on that footing. On this count
also Mr. M. Siddiah's selection cannot be considered as one only on merit
irrespective of the community factor.
16. In the
circumstances, there is no error in the judgment and order rendered by the High
Court. The appeal is, therefore, dismissed.
Original Application,
filed by the first respondent before the Administrative Tribunal, shall stand
dismissed.
.........
...............................J. ( R.V. Raveendran)
.........................................J.
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