IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 19932 of 1998 Between: 1. Union of India, Rep by its Secretary, Ministry of Defence, New Delhi. 2. Chief of Naval Staff, Naval Head Quarters, Sena Bhavan, New Delhi. 3. Director General of Armament Supply, Naval Headquarters, Sena Bhavan, New Delhi. 4. Director of Civilian Personnel, Naval Headquarters, Sena Bhavan, New Delhi. ..... PETITIONERS AND 1. R.M. Burman, S/o R.K.Burman, Dy. Armament Supply Officer, Vishakapatnam-530009. 2. Registrar, Central Administrative Tribunal, Hyderabad Bench, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction, more particularly one in the nature of Certiorari, calling for the records of the 2nd respondent in O.A.No.1367 of 1994 and quash the judgment dt.13.10.97. Counsel for the Petitioner: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondents: MR.P.BHASKAR The Court made the following: ORDER: (Per. Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed by the Union of India seeking Certiorari to quash the order in O.A.No.1367 of 1994 dated 13.10.1997 on the file of the Central Administrative Tribunal, Hyderabad Bench (for short “the Tribunal”). The first respondent herein is the applicant and the writ petitioners are the respondents before the Tribunal and the status of the parties will be referred to as arrayed before the Tribunal for the sake of convenience. The facts of the case, in nutshell, are that the applicant was working as Deputy Armament Supply Officer Grade-I (Manager). His next promotion is to the post of Naval Armament Supply Officer (Ordinary). In order to fill up the existing four vacancies of such post by promotion on selection basis, a Departmental Promotion Committee (for short ‘DPC’) was convened on 20-7- 1994, which, as per the existing instructions, empanelled 12 officials after satisfying with their eligibility of qualifying service of five years. Out of the said 12 officials, 8 Deputy Armament Supply Officers were enlisted for being considered for promotion, which was stated to be under the zone of consideration, in which the applicant was shown at Sl.No.7. The selection to the said post is based on assessment of benchmark of “very good”, which is indispensable to the said post, given by DPC with reference to Annual Confidential Reports. The DPC prepared a selection list wherein the applicant, who secured the bench mark of “good”, was shown at Sl.No.5 promoting the first four officials, who secured the bench mark of “very good” than the applicant, as the existing vacancies are only four. His main grievance is that notwithstanding the bench mark, the concession of being promoted should be extended to him as he belongs to a Scheduled Caste category in the light of para 2.3.2 of the Official Memorandum No.F.22011/5/86-Estt (D), dated 10-3-1989. Questioning the inaction of the respondents, the applicant approached before the Tribunal. The Tribunal, after referring to para 2.3.2 as stated in the official memorandum, passed the order impugned directing the respondents-writ petitioners to review the recommendations of DPC which met on 20-7-1994 afresh and if the applicant fulfils the condition as laid down in para-2.3.2, the name of the applicant should also be included in the panel above respondent No.6 therein. Aggrieved by the said action, the present writ petition has been filed. Heard the learned Assistant Solicitor General for the writ petitioners and the learned counsel for the first respondent. Learned Assistant Solicitor General contended that as per para 2.3.2, the concession can be extended to a Schedule Caste Candidate, notwithstanding any grading of himself and other officers, only for inclusion of his name in the zone of consideration prepared on the basis of seniority-cum-eligibility, apart from the fact that he was not considered unfit for promotion. It is further contended that as the promotion is on selection basis with reference to recommendations of DPC, a mere inclusion of name in the zone of consideration, cannot be a basis to claim the promotion as a matter of right for the reason that the selection is based on meritorious record of the candidates irrespective of their placements in the list. On the contrary, the learned counsel for the first respondent-applicant submits that when the applicant was found fit for promotion, his case cannot be overlooked for being promoted as he was a Schedule Caste candidate in the light of para-2.3.2. He also further contended that in view of not extending the benefit of para-2.3.2, one S.P. Sharma, who is his junior, was promoted overlooking the applicant and therefore, the action of the respondents, amounts to discrimination and violation of principles of natural justice. Before going into the merits of the case, it is relevant to note that relevant para-2.3.2, on which the applicant relies for his promotion, plays a vital role. The said paragraph reads as under: “In promotion by selection to posts/services within Group ‘A’ (which carry an ultimate salary of Rs.5,700/-P.M. in the revised scale, the SC/STs officers, who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up, would notwithstanding the prescription of ‘benchmark’ be included in that list provided they are not considered unfit for promotion.” It is not in dispute about empanelment of 12 officials for considering promotion on selection basis for filling of 4 existing vacancies, out of which 8 officers were enlisted in the zone of consideration. It is also not in dispute that the applicant was shown at Sl.No.7 in the zone of consideration and one S.P. Sharma, who was junior to the applicant, was also shown at Sl.No.8 in the said list. The only dispute that remains for determination is as to whether the concession as stated in para- 2.3.2 can be extended to the case of the applicant while giving promotion irrespective of securing any benchmark on the ground that the applicant belongs to Schedule Caste category. In this regard, the principles laid down by the Apex Court, are the only basis to consider the case of this nature. In a case of this nature, the Apex Court has made it clear about the import of said method of giving concession that if any SC/ST candidate happen to fall within the list, he should be included in the zone of consideration without comparing any merit and grading of other officers who are in the zone of consideration, and mere inclusion of name in the zone of consideration would not get any promotion inasmuch as the candidates who are below the zone of consideration may have better record and grading than the officers within the zone of consideration. The Apex Court also made it clear that in view of the fact that the promotion is on the basis of selection, the more meritorious officer will get selected irrespective of his position in the zone of consideration. It is also clarified that the benefit can be extended only to include the name in the zone of consideration and not for promotion. In the case on hand, admittedly, the name of the applicant was included in the zone of consideration at Sl.No.7 above S.P. Sharma, who was junior to the applicant. As S.P. Sharma was awarded bench mark of very good than the applicant, he was included in the promotion list irrespective of his placement in the zone of consideration in the light of the method explained by the Apex Court. Having regard to the facts and circumstances of the case and in view of the principles laid down by the Apex Court, we are of the opinion that mere empanelling of a candidate under the zone of consideration, cannot be a basis to claim the promotion as a matter of right irrespective of the placement in the panel and the reservation category and therefore, the Tribunal has failed to consider the principles laid down by the Apex Court while passing the order impugned. Therefore, the order of the Tribunal suffers from legal infirmity and as such, the same is liable to be set aside. In the circumstances, the writ petition is allowed setting aside the order of the Tribunal dated 13-10-1997 in O.A.No.1367 of 1994. No order as to costs. _____________________ GHULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date: 09-09-2008 Ksn ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies