REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3314 OF 2010

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

GOPAL MEENA & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 5933 OF 2010

AND

CIVIL APPEAL NO. 9436 OF 2010

J U D G M E N T

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 Tribunal

1

, 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

1 For short, the ‘Tribunal’

1

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 applicants

2

, 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.

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

2

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

3

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

4

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 30

th

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 30

th

September,

1983, which in fact taken away the rights conferred upon the

reserved category candidates under the Office Memorandum

of the 30

th

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

5

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,

6

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 vacanciesNormal 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 12

th

October 1990 read with O.M. No. 22011 /

1/90-Estt- (D) dated 22nd April 1992 is as under:

No. of vacanciesNormal 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

7

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

8

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 Kerala

6

,

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

6 (2000) 6 SCC 359

7 (2019) 4 SCC 376

9

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.

10

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.

8 (1995) 2 SCC 745

11

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. Chrysolite

12

to contend

that limiting the zone of consideration and shortlisting the

9 (2021) 11 SCC 401

10 (1999) 7 SCC 209

11 1989 Supp (1) SCC 34

12 (2013) 16 SCC 702

12

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

13 (1995) 3 SCC 552

13

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:

14

“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

15

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

16

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

17

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.

18