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PETITIONER:

P.SHESHADRI

Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT09/03/1995

BENCH:

FAIZAN UDDIN (J)

BENCH:

FAIZAN UDDIN (J)

AGRAWAL, S.C. (J)

CITATION:

1995 SCC (3) 552 JT 1995 (2) 661

1995 SCALE (2)195

ACT:

HEADNOTE:

JUDGMENT:

1 Delay condoned.

2. Leave granted. Counsel for the parties are heard.

3. In this appeal under Article 36 of the Constitution of

India the appellant has challenged the judgment dated

31.7.1992 passed by the Central Administrative Tribunal,

Hyderabad Bench at Hyderabad (hereinafter referred to as the

Tribunal) dismissing the application of the appellant filed

under Section 19 of the Administrative Tribunals Act, 1985

against the respondents herein seeking the relief of dec-

laration that the action of respondents No. 1 and 2 in not

promoting the applicant to the post of Dy.

Director/Executive Engineer alongwith other candidates by an

order dated 28.2.1990 as arbitrary or illegal. In the said

application the appellant also sought a direction to the

respondents to declare him as having been promoted to the

post of Dy. Director/Executive Engineer with effect from

28.2.1990 with all consequential benefits.

4. The short question that arises for determination by

this Court in this appeal is whether the Tribunal has

correctly interpreted the Office Memorandum No. 27/ 2/71-E

4(SET) dated 27.11.1972 in holding that the,appellant was

not entitled to be promoted as Dy. Director/Executive En-

gineer because of his placement in the approved promotion

panel.

5. Admittedly at the relevant time the appellant was

holding the post of Assistant Director/Assistant Executive

Engineer, in Central Water Engineering (Group-A) and that he

was fully eligible for being considered for promotion to the

next higher grade of Dy. Director/Executive Engineer. The

appellant's case before the Tribunal was that though his

name was considered and he being the only candidate

belonging to the Scheduled Tribe community his name was

included in the panel of selected candidates and placed at

serial No. 26 of the combined select list but by order dated

28.2.1990 only 22 persons were promoted and the appellant

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was not promoted because there were only 22 posts available

and therefore persons at Serial No. 1 to 22 in the approved

panel were promoted while according to the appellant when 22

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persons were promoted there should in any case be at least

one point belonging to the Scheduled Tribe candidate in

accordance with the prescribed roster. The appellant

therefore, approached the tribunal for the necessary

direction.

6. The respondents contested the appellant's application

by stating that 78 vacancies were anticipated up 'to

31.12.1990 out of which 12 were reserved for Scheduled

Castes and 6 for the Scheduled Tribes against which only the

appellant, as the sole officer belonging to the Scheduled

Caste community was found eligible, by the Departmental

Promotion Committee in its sitting held on 3.8.1990 and

27.8.1990. The respondents' further stand was that having

regard to the directions contained in Office Memorandum No.

27/2/71 -E(SEI) dated 27.11.1972 issued by the Department of

Personnel, they prepared separate select lists of candidates

belonging to the Scheduled Castes and Scheduled Tribes in

addition to the general list and all the3separate select'

lists were merged into one combined list in which the name

of all the selected officers including those belonging to

Scheduled Castes and Scheduled Tribes 'were arranged in the

order of their inters seniority in the feeder cadre viz.

Assistant Director/Assistant Executive Engineer in which the

name of the appellant figured at S1. No. 26. It was stated

by the respondents that the number of the vacancies as were

anticipated did not come through and they could promote only

22 officers and, therefore, the first 22 in the panel of the

combined list were promoted. 'The appellant could not be

promoted as his chance for promotion would come only accord-

ing to his placement in the approved panel.

7. The tribunal, after considering the rival contentions,

came to the conclusion that having regard to the promotion

policy the promotions have to be made in accordance with the

instructions contained in the Office Memorandum dated

27.11.1972. It took the view that the combined select list

prepared in accordance with the instructions forms the basis

for promotion in which the names of all the selected

officers, general as well as those belonging to Scheduled

Castes and Scheduled Tribes are arranged in the order of

their interse seniority. The tribunal also took the view

that the rosters which have been prescribed for reservation,

are for determining the number of vacancies to be reserved

for Scheduled Castes and Scheduled Tribes and that the 40

point roster is not for determining the order of actual

appointment or for the purpose of determining seniority.

After analysing the instructions contained in Office

Memorandum dated 27.11.1972 the Tribunal took the view that

the respondents committed no illegality in making promotions

of 22 persons by order dated 28.2.1990 and on that basis,

rejected the application made by the appellant against which

this appeal has been preferred.

8. Learned counsel for the appellant vehemently urged

before us, that the impugned judgment of the tribunal is

against the promotion policy enunciated by the Central

Government for the benefit of the members of the Scheduled

Castes and Scheduled Tribes as well as against the very

object and spirit of the Office Memorandum dated 27.11.1990

and other related Government instructions in this behalf It

was submitted that though 78 vacancies were anticipated up

to 31.12.1990 yet accepting that only 22 posts were

available for promotion then also having regard to the

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promotion policy and the percentage

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of reservation allocated to the members of the Scheduled

Tribes, the appellant could not have been ignored and in any

event one post out of the 22 posts must have been made

available on 28.2.1990 when 22 promotions were made. It

was, therefore, submitted that the impugned order of the

tribunal could not be sustained either in law or on facts.

9. It may be pointed out that Office Memorandum No.

27.2.71 -E(SET) dated 27.11.1972 issued by the Department of

Personnel, Government of India, relates to the introduction

of promotion scheme to the members belonging to Scheduled

Caste and Scheduled Tribe community. A reading of the said

memoranda goes to show that prior to 17.11.1972 there was no

reservation for Scheduled Castes and Scheduled Tribes in

appointments made by promotion on the basis of seniority

subject to fitness and it was only by O.M. dated 27.11.1972

that the Government of India communicated its policy

providing 15 per cent reservation for Scheduled Castes and 7

1/2 per cent reservation for Scheduled Tribes in promotion

to all classes of posts/ service made on the basis of

seniority subject to fitness. This policy was adopted by

the Government of India in supersession of its earlier

orders contained in Office Memoranda No. 1/1 2/67- ESTT (C)

dated 11.7.1968 according to which there was no reservation

for Scheduled Castes and Scheduled Tribes in the

appointments made by promotion. The Government, therefore

directed appointing authorities to maintain a separate 40

point roster to determine the number of reserved vacancies

in a year with a view to implement the. aforementioned

reservation policy. In pursuance of the said policy,

detailed instructions were issued to the authorities

concerned to make promotions in accordance with the

directions contained therein with a view that the members

belonging to the Scheduled Castes and Scheduled Tribes may

have the benefit of getting promotion to higher grade/cadre

earlier than the employees who did not belong to the

Scheduled Castes and Scheduled Tribes. Clause (i) of

paragraph 3 of O.M. dated 27.11.1972 provides for

preparation of a separate 40 point roster to determine the

number of reserved vacancies in a year which also prescribes

the points for reservation for Scheduled Castes and Sched-

uled Tribes. Clause (ii) provides that wherever according

to the points in the roster there are any vacancies reserved

for Scheduled Castes and Scheduled Tribes, separate list

should be drawn up of the eligible Scheduled Castes and

Scheduled Tribes officers as the case may be, arranged in

order of their interse seniority in the main list. Clause

(iii ) contemplates that the Scheduled Castes and Scheduled

Tribes officers should be adjudged by the Departmental

Promotion Committee separately in regard to the fitness and

clause (iv) of paragraph 3 of O.M. dated 27.11.1972 reads

as under:-

"when the Select Lists of officers in the

general category and those belonging to

Scheduled castes and Scheduled tribes

have been prepared by the Departmental

Promotion Committee these should be merged

into a combined select list in which the names

of all the selected officers general as well

as those belong to Scheduled Castes and

Scheduled Tribes are arranged in the order of

their inter-se seniority in the original

seniority list of the category or grade from

which the promotion is being made. This

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combined select list should thereafter be

followed for making promotions in vacancies as

and when they, arise during the year.

10.Government of India, Department of

Personnel & Training, Ministry of Personnel,

Public Grievances and Pensions again issued

O.M. No. F.22011/5/86-ESTT/ D dated 10.3.1989

providing the procedure to be observed by

Departmental Promotion Committee. Paragraph

2.3.2 (ii) of the said O.M. dated 10.3.1989

lays down the method of promotion by selection

and reads as under

"In promotion by selection to posts/services

from Group 'C' to Group 'B' within Group 'B'

and from Group 'B' to the lowest run in Group

'A', selection against vacancies reserved for

SCs and STs will be made only from those

SCs/STs officers, who are within the normal

zone of consideration prescribed vide the

Department of Personnel & A.R. O.M. No.

22011/3/76-Estt.(D) dated 24th December, 1980.

Where adequate number of SCs/STs candidates

are not available within the normal field of

choice, it may be extended to five tunes the

number of vacancies and the SCs/STs 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 SCs/STs-obetain on the basis

of merit with due regard to seniority, on the

same basis as others, km number of vacancies

than the number reserved for them, the

difference should be made up by selecting

candidates of these commumucs, who are in the

zone of consideration, irrespective of merit

and 'bench mark' but who arc considered fit

for promotion. Officers belonging to SC/ST

selected for promotion against vacancies

reserved for them from within the extended

Geld of choice should however be placed at

bloc below all the other officers selected

from within the normal field of choice.

11.A combined reading of the instructions contained in these

memoranda will

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go to show that in the first instance the number of reserved

vacancies in a year have to be worked out on the basis of 40

point roster as envisaged in sub-clause (i) of paragraph 3

of O.M. dated 27.11.1972. Thereafter separate lists arc to

be drawn up of the eligible Scheduled Castes or Scheduled

Tribes officers arranged in the order of their inter se

seniority in the main list. Clause (iii) of paragraph 3

enjoins a duty on the Departmental Promotion Committee to

adjudge the Scheduled Castes and Scheduled Tribes officers

separately in regard to their fitness. Thereafter the

select lists of the officers in the general category and

those belonging to the Scheduled Castes and Scheduled Tribes

arc prepared by the Departmental Promotion Committee. The

same have to be merged into a combined select list in which

the names of all the selected officers, general as well as

those belonging to Scheduled Castes and Scheduled Tribes arc

arranged in the order of their inter se seniority in the

original seniority list of the category/grade from which the

promotion is being made and this combined select list is the

basis for making promotions in vacancies as and when they

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arise during the year. Further clause (ii) of paragraph

2.3.2 of O.M. dated 10.3.1989 contemplates that selection

against vacancies reserved for Schedule Castes and Schedule

Tribes will be made only from those Schedule Cast/ schedule

Tribes officers who arc within the normal zone of

consideration prescribed by the Department of Personnel and

A.R. vide O.M. No.22011 dated 24th December, 1980. It

further contemplates that where number of Scheduled

Caste/Schedule Tribe candidates arc not available within the

nominal field of choice, it may be extended to Five Times

the number of vacancies and Schedule Caste/Schedule Tribe

candidates (and not any other) coming; within the

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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 bench mark 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 block below all

the other officers selected from within the normal field of

choice. In view of the aforesaid clear instructions with

regard to the reservation quota for the Scheduled Tribes as

7-1/2 per cent, it is beyond comprehension to say that not

even a single post will go to the member of the Scheduled

Tribe out of the 22 posts which were available for promotion

to the post of Dy. Director/Executive Engineer on the

relevant date i.e. on the date when 22 officers were

promoted to that grade. Any other interpretation of..,',he

memoranda referred to above will not only frustrate the

scheme but it will render the reservation policy as nugatory

and no effect to the reservation quota can be given.

12. The tribunal seems to have been misled by the last

sentence contained in clause (iv) of paragraph 3 in O.M.

dated 27.11.1972 which reads as follows:-

"This combined select list should therefore be

followed for making promotions in vacancies as

and when they arise during the year."

The aforementioned sentence cannot be read form out of the

context in which it has been used. The preceding clauses of

the said memoranda clearly contemplate that there have to be

separate select lists of officers in the general category as

well as those belonging to the Scheduled Castes and

Scheduled Tribes having been prepared by the Departmental

Promotion Committee and then all the three have to be merged

to form a combined select list. It does not mean that in

the case of Scheduled Castes and Scheduled Tribes the pro-

motions have to be made only in accordance with the

placement of the members of the Scheduled Caste and

Scheduled Tribe in the combined select list. They have to

be picked up from the select list of officers belonging to

Scheduled Castes and Scheduled Tribes prepared by the

Departmental Promotion committee, according to the

availability of reserved vacancies and their turn in the

said lists. This intention is also spelt out from clause

(ii) of para 2.3.2 of O.M. dated 10th March, 1989 which

provides that promotion by selection against vacancies

reserved for Scheduled Caste and Scheduled Tribe will be

made only from those Scheduled Caste/ Scheduled Tribe

officers who are within the normal zone of consideration.

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13.Having regard to these facts and circumstances the

appellant having been selected by the Departmental Promotion

Committee and he being the only eligible officer belonging

to the Scheduled Tribe community should have been promoted

to the higher post/grade of Dy. Director/Executive Engineer

and the respondents committed a serious error and illegality

in not doing so. Consequently, the appeal succeeds and is

hereby allowed. The impugned order of the tribunal is set

aside

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and the application of the appellant filed before the

tribunal is allowed. According to the Counter Affidavit

filed in this Court by Shri A.K. Barua on behalf of the re-

spondents, the appellant was also promoted as Dy.

Director/Executive Engineer by order dated 7.9.1993 and the

appellant had joined as Deputy Director /Executive Engineer

on 22.9.1993. Since we find that the appellant was entitled

to be promoted on 28.2.1990, it is directed that he will be

deemed to have been promoted with effect from 28.1.1990 with

all consequential benefits. The respondents are directed to

pay a sum of Rs. 3000/- as costs of this appeal to the

appellant.

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