HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):- The present O.A has been filed under Section 19 of the Administrative Tribunals Act, 1985 for issuance of direction to the respondents to recast the seniority list in the cadre of Sr. Goods Guard in Jodhpur Division of NWR, on the basis of original date of appointment in the base grade by applying the catch up principle as per verdict of Full Bench in All India Equality Forums case and no benefit of consequential seniority on accelerated promotion be given to SC/ST employees and to review all promotions made in the past as well as during the pendency of the O.A., if any, on the basis of impugned revised seniority list and Annexure A-1 dated 9.3.2012, seniority list of Sr. Goods Guard may be quashed and set aside.
2. The facts, which led to filing of the present O.A, are that the applicants joined service as Goods Guard on various dates during 2005 and came to be promoted as Sr. Goods Guard on various dates during the period 2008 to 2013 as mentioned in para 4 (2) of the Original Application. The private respondents No. 3 & 4 belong to C category whereas respondents no.5 & 6 belong to S.T. category. They joined as Goods guard on 6.8.2006, 25.8.2006, 13.4.2007 and 21.12.2006 respectively and promoted as Sr. Goods Guard on accelerated promotion from 29.8.2011, 1.1.2009, 30.12.2010 and 10.5.2011. The DoPT issued an OM dated 30.1.1997 providing for that if a candidate belonging to SC/ST is promoted to an immediate higher post / grade against a reserved vacancy earlier than his senior general/ OBC candidate who is promoted later to the said immediate higher post / grade, the general / OBC candidate will regain his seniority over such earlier promoted candidate of the SC/ST in the immediate higher post / grade. To negate effect of this O.M. Constitution (Eighty-Fifth Amendment) Act, 2001 was passed providing for consequential seniority on accelerated promotion. This was challenged in the Honble Supreme Court in the case of M. Nagaraj & Others Vs. Union of India etc. Writ Petition ) No. 61/2002 which was decided holding that concerned State will have to show in each case the existence of the compelling reasons, namely backwardness, inadequacy of representation and over all administrative efficiency before making provision for reservation. DoPT issued OM dated 29.3.2007 for implementation of the said decision and on the basis thereof, Railway Board also issued circular on 29.2.2008. All India Equality Forum and others filed O.A.No. 2211/2008 in Principal Bench of Tribunal to Railway Board circulars of 29.2.2008, 8.3.2002 and 13.1.2005 in which direction was issued o the respondents to recast the seniority list of employee in Group B, C and D on the basis of original date of appointment and that no benefit of seniority on accelerated promotion be allowed. The issue was decided by Full Bench of Tribunal on 2.12.2010 in All India Equality Forum & Others Vs. UOI etc. 2012 (3) SLJ CAT 195 and circular dated 29.2.2008 was quashed and set aside. The case put up by the applicants in short is that the respondents cannot allow consequential seniority on accelerated promotion to private respondents and they have to follow up the principle of catch-up before resorting to making further promotion. Hence the O.A.
3. The O.A. is resisted by the respondents by filing a detailed reply. It is submitted that private respondents were rightly shown senior to applicants as per their dates of promotion to Sr. Goods Guard. As per para 309 of IREM, seniority of employees is fixed as per date of entry into the grade as such the seniority assigned to private respondents is in order. As per PS No. 12539, SC/ST employees who are promoted on account of their jumping seniority against reserve post will rank senior to those general employees who are promoted later on from SC/ST candidates. Instructions issued by DoPT and Railways provide for grant of seniority on promotion to SC/ST category employees.
4. We have heard learned counsel for the parties at length and perused the material on the file.
5. The facts are not in dispute. In the case of M. Nagraj (supra) the Constitution Bench of Honble Supreme court has held it would be mandatory on part of the State Government to undertake proper exercise in case any rule was required to be framed by it to extend the benefit of enabling provision in the Constitution by way of 77th and 85th amendment i.e for reservation in promotion with consequential seniority. Hence to grant such benefit under Article 16(4-A) and for the purpose of compliance with Article 335 of the Constitution of India the respective State Government have to quantify the figures of Scheduled Castes and Scheduled Tribes candidates to enable it to arrive at a decision about the level of reservation in matter of promotion and State has also to show that it had to pass such orders for compelling reasons, such as, backwardness, inadequacy of representation of a caste in public employment and over all administrative inefficiency. Similarly, in the case of Suraj Bhan Meena & Another Vs. State of Rajasthan & Others (SLP no. 6385 of 2010) decided on 7-12-2010, the Honble Apex Court dealt with the question, as to whether the conditions enumerated in M. Nagarajs case (supra) applied to cases of seniority and promotion after 17-6-1995 from which date amendment was declared to be valid. The Apex dispensation has held that the State is not bound to make reservation for SC and ST in matter of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for purpose of compliance with Article 335 of the Constitution of India. The Court upheld the quashing of the notifications dated 28-12-2002 and 25-4-2008 issued by State of Rajasthan providing for consequential seniority and promotion to members of SCs and STs in the light of fact that the exercise enumerated in the M.Nagarajs case had not been carried out before granting benefit of reservation in matter of promotion and consequential seniority to the reserved categories.
6. Honble High Court of Punjab and Haryana in had an occasion to deal with the issue in CWP No. 13218 of 2009 (Lachhmi Narain Gupta & Others Vs. Jarnail Singh and Others), decided on 25.7.2011 while carrying out judicial review of an order passed by Chandigarh Bench of this Tribunal. The Court quashed the action of authorities in providing reservation in promotion w.e.f. 2.7.1997, as no exercise had been carried out by the relevant dispensation in providing reservation in view of the various judgments of the Honble Supreme Court of India. Even after the judgment in the case of M. Nagraj, referred to above, and issuance of the above directions, the State has failed to conduct any exercise in terms of the aforesaid judgment. It has not been determined whether the reservation created in terms of the Article 16(4) of the Constitution of India through various instructions issued by the official respondents from time to time, is in consonance with the terms laid down in the case of M. Nagrajs case.
7. It would be pertinent to note that the view aforementioned has been reiterated by the Honble Apex Court in the case of U.P. Power Corp. Ltd. Vs. Rajesh Kumar & Others (C.A. No. 2608 of 2011). Recently their Lordships of Apex Court have reiterated this view in the CIVIL APPEAL NOS. 6631-6632 of 2015 (Arising out of SLP (Civil) Nos. 8366-8367 of 2012) titled S. PANNEER SELVAM & ORS. Versus GOVERNMENT OF TAMIL NADU & ORS & bunch of petitions on 27.8.2015, and this case related to determination of seniority on the basis of catch-up principle.
8. Learned counsel for the applicants vehemently argued that even in the case in hand no exercise as envisaged in M. Nagrajs case (supra) has been carried out by the respondents and the learned counsel for the respondents was not able to controvert this factual position. He, however, stated that the respondents would give a fresh look to the seniority list in question in view of law laid down in the case of M. Nagraj (supra).
9. The delay of few months in filing the O.A. is condoned in view of facts and grounds mentioned in M.A. No. 155/2013. M.A. stands disposed of accordingly.
10. In view of the above discussion, this O.A. is disposed of with direction to the respondents to give a fresh look to the seniority list, Annexure A-1 qua catch up principle as laid down in the case of S. Panneer Selvem (supra) and on the basis of principles laid down in the case of M. Nagraj (supra) and pass necessary orders within a period of 3 months from the date of receipt of a certified copy of this order. No costs. (PRAVEEN MAHAJAN) (SANJEEV KAUSHIK) MEMBER (A) MEMBER (J) Dated: 23.01.2017 Place: Jodhpur OA No. 346/Jodhpur/2013 (Manohar Singh etc. Vs. UOI & Ors.)