Union Of India v. Cat, Chandigarh
{1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH Date of decision:05.07.2017 Union of India ... Petitioner Vs.
CAT, Chandigarh Bench and another ... Respondents
CORAM:
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. R.T.P.S.Tulsi, Advocate for the petitioner.
Mr. D. R.Sharma, Advocate for respondent No.2.
AMIT RAWAL J.
Union of India through the General Manager (P), Northern Railway has preferred the present writ petition against the order dated 11.09.2015 of the Central Administrative Tribunal, Chandigarh (hereinafter called 'the Tribunal') rendered in OA No.060/015052/2014. Mr.R.T.P.S.Tulsi, learned counsel for the petitioner submitted that process of promotion for Group "C" to Group "B" for filling up 05 number of vacancies of ACMT, vide General Manager's letter dated 25.09.2013 was initiated and in this regard, a supplementary and written test was held on 01.08.2014 and 27.08.2014 respectively. On 22.09.2014, vivavoce test was held and vide letter dated 09.10.2014 (Annexure A-1 of OA) provisional panel of ACMT was prepared. Respondent No.2, i.e., applicant before the CAT belonging to Un-reserved/General Category was aggrieved of the order dated 09.10.2014, whereby, SC candidate figuring at Sr. No.2
{2} of the panel as per Railway Board letter dated 21.08.1997 was considered against UR vacancy and the Tribunal, vide order dated 11.09.2015 (Annexure P-1) accepted the Original Application by quashing the impugned decision dated 09.10.2014, whereby, the petitioner had kept one post reserved for SC category; with a further direction to fill up the post from amongst the panel and consider the person next in merit for appointment to the post of ACMP enabling the petitioner to undertake the exercise within a period of two months from the date of receipt of a certified copy of the order.
He further submitted that the matters of identical nature rendered in various OAs in respect of accelerated promotions for reconstructing of different cadres came up for consideration before this Court vide lead case, i.e., CWP No.15782 of 2015 titled as Ram Krishan Singh and others vs. Union of India and others, decided on 18.01.2017. The General Category candidates had also challenged the accelerated promotion by relying upon the ratio decidendi culled out by the Constitution Bench in M. Nagraj and others vs. Union of India and others 2006(8) SCC 212 and the Division Bench of this Court, vide aforementioned judgment disposed of the writ petitions with the following observations:- "[5] The Tribunal relied upon various decisions including the one rendered by this Court in Lacchmi Narain Gupta and others vs Jarnail Singh and others in CWP No.13218 of 2009 decided on July 15, 2011 and set aside the eligibility list. It further held that promotion to
{3} the posts of Senior Technicians be made in the order of seniority ignoring the out of turn/accelerated promotions earlier granted to reserved category candidates, for the reason that the post of Senior Technician is a non-selection post and principle of seniority-cum-merit is required to be followed. [6] In the connected cases also identical legal principle has been reiterated by the Tribunal keeping in view the facts situation in each case.
[7] It may be mentioned that against the decision of this Court in Lacchmi Narain Gupta's (supra), SLP (C) No.4831 of 2012 is pending in the Hon'ble Supreme Court. It further appears that when the SLP came up for hearing on 29.09.2016, learned Solicitor General of India made a statement before the Apex Court for the purpose of ad hoc arrangement to be made by the authorities till the matter is finally decided. [8] With a view to give effect to the statement made by learned Solicitor General of India, Northern Railway, Ferozepur Division, has issued Circular dated 12.01.2017 observing that since for the safety aspects in train operation the promotions of staff are required to be made provisionally subject to the outcome of the final decision of the Hon'ble Supreme Court, the Competent
{4} Authority has decided to follow the following procedures for promotions on provisional basis subject to the final outcome of the Court cases:- "1. All the promotions are to be done as per General Seniority.
2. Zone of consideration will not be extended.
3. No jumping of candidates will be allowed.
4. Seniority will not be violated in any case.
5. All the SC & ST candidates coming in the purview of General Seniority shall be considered against available Roster Points, even if they were acquiring UR points in the past.
6. Whenever, in any case if Roster Points are consumed and the number of SC and ST candidates still appears as per the zone of consideration in the General Seniority, they shall be adjusted against UR Roster Points on temporary basis to be adjusted against future SC/ST vacancies.
7. Once SC/ST Roster Points are available in future these UR points will be vacated and SC/ST candidates will be adjusted against newly available points.
8. In case there is no SC & ST candidates
{5} available in the zone of consideration but vacancies are available the vacancies shall be kept as shortfall for future adjustment."
[9] It is undeniable that parties to these cases shall also be bound by the final verdict of the Hon'ble Supreme Court and their fate shall also be decided in terms of the decision of the Hon'ble Supreme Court even if no formal SLP/civil appeals are filed in these cases. Till the final decision comes, we find that the arrangement made by Northern Railway, Firozepur is fair, just and a workable solution.
[10] Consequently, all these writ petitions are disposed of with a direction to the Railway Authorities to provisionally implement the orders passed by the Tribunal in these cases subject to the terms and conditions contained in its above reproduced letter dated 12.01.2017 and further subject to the final decision of the Hon'ble Supreme Court.
[11] There is no reason as to why the other Divisions of Northern Railways or the Railway Coach Factory, Kapurthala should deviate or have a different criteria to follow. Consequently, it is directed that the abovestated provisional arrangement shall be followed by all the Divisions as well as Rail Coach Factory/ production units till the final decision of the Hon'ble Supreme Court.
[12] Let the needful be done within two months."
{6} A copy of the aforementioned order has been produced in Court by Mr. Tulsi, during the course of arguments. The factum of the aforementioned decision has not been disputed by Mr. D.R.Sharma, Advocate for respondent No.2. However, counsel for respondent No.2 submitted that essentially grievance of the respondent, i.e., applicant in OA was that post of ACMT Group "B" being a promotional post has to be filled up amongst the candidates who have cleared the written test and therefore, the action of the petitioner - Union of India, in not filling up all the five posts and keeping of one vacancy reserved for SC category is wholly unjustified and arbitrary. There cannot be any reservation in the promotion as per the ratio decidendi culled out by the Constitution Bench in M.Nagraj (supra) and various other judgments.
It is in this aspect of the matter, OA filed by the private respondent has rightly been allowed by quashing the impugned order dated 09.10.2014 with a direction to the petitioner herein to undertake the exercise of filing up the posts amongst the panel by considering the person next in merit for appointment to the post of ACMT with a period of two months. We have heard learned counsel for the parties, appraised the paper book, as well as the judgment rendered by the Division Bench of this Court and are of the view that the writ petition is covered by the judgment dated 18.01.2017 rendered in CWP No.15782 of 2015 (supra) as the Division Bench of this Court held that no exercise to identify the deficiency in the representation of the reserved category employees was ever taken up
{7} by the Railways before providing reservation in promotion as reservation is not permissible in promotion. However, statement had been made by the learned Solicitor General of India in SLP © No.4831 of 2012 preferred against the judgment of this Court in Lacchmi Narain Gupta and others vs. Jarnail Singh and others in CWP No.13218 of 2009 decided on 15th July, 2011, before the Supreme Court for the purpose of ad hoc arrangement to be made by the authorities till the matter is finally decided. To give effect to the said statement, Northern Railway Ferozepur Division issued circular dated 12.01.2017, wherein, it has been inter alia stated that all the promotions shall be done as per the General Seniority and there shall be no jumping of the candidates, much less, any violation of the seniority.
In view of the aforementioned fact, writ petition is disposed of in terms of the directions contained in the order dated 18.01.2017 passed in CWP No.15782 of 2015. The petitioner would not deviate or follow a different criteria for filling up the aforementioned post. Consequently, the aforestated provisional arrangement shall be followed by all the Divisions till the decision is rendered by the Supreme Court in Lacchmi Narain Gupta's case (supra).
(AJAY KUMAR MITTAL) (AMIT RAWAL) JUDGE JUDGE July 05, 2017 savita Whether Speaking/Reasoned Yes/No Whether Reportable Yes/No