IN THE HIGH COURT OF JUDICATURE AT PATNA ----------- Civil Writ Jurisdiction Case No.6146 of 2007 ---------- In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------- Smt.Gita Sanyal @ Geeta Sanyal, wife of K.K.Sanyal, resident of Railway Quarter No. 736/C Medical Colony, P.O. and P.S. Khagaul, District- Patna...................................... Petitioner Versus 1. The Union Of India through the General Manager, East Central Railway, Hajipur. 2. The General Manager ( Personnel ) , East Central Railway, Hajipur 3. The Divisional Railway Manager, East Central Railway, Danapur 4. The Senior Divisional Personnel Officer, East Central Railway, Danapur. 5. The Chief Medical Superintendent, East Central Railway, Danapur. 6. Smt. Savita Mandal ( Sinha ), wife of late Sri Pradeep Kumar Sinha. 7. Monika Mazumdar, wife of Sri Dipak Simon. 8. Pramila Marandi, wife of not known 9. Kamala Dubey, wife of Mr. Loknath Dubey. 10. Smt. Tepati Roy, wife of Mr. Deepak Kumar All the respondents from 6 to 10 are posted as Metron under Chief Medical Superintendent, E.C. Railway, Danapur. 11. Smt. Manorma Singh, wife of Bipin Bihari Singh, resident of Railway Quarter No. 595/B, Medical Colony, P.O. and P.S. Khagaul, District- patna. 12. Smt. G.Veda Vidyawati, daughter of late G. Venket Rao, resident of Chirayatad, Prithvipur, P.S. Jakkanpur, English Mohalla, Patna............................................... Respondents. with Civil Writ Jurisdiction Case No. 5672 of 2007 ----------- Smt.Gita Sanyal @ Geeta Sanyal, wife of Shri K.K. Sanyal, R/o Railway Quarter No. 736/C, Medical Colony, P.O.& P.S. Khagaul, District- Patna.................................... Petitioner Versus 1. The Union Of India, through the General Manager, East Central Railway, Hajipur. 2. The General Manager ( Personnel ), East Central Railway, Hajipur. 3. The Divisional Railway Manager, East Central Railway, Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 2 Danapur 5. The Chief Medical Superintendent, East Central Railway, Danapur. 6. The Assistant Personnel Officer ( Gazetted ) , E.C. Railway, Hajipur. 7. Smt. Savita Mandal ( Sinha ), wife of late Pradeep Kumar Sinha 8. Smt. Monika Mazumdar, wife of Sri Dipal Simon. 9. Smt. Pramila Marandi, wife of not known 10. Smt. Kamala Dubey, wife of Mr. Loknath Dubey. 11. Smt. Tepati Roy, wife of Mr. Deepak Kumar All the respondents nos. 7 to 11 are posted as Matron under Chief Medical Superintendent, E.C. Railway, Danapur .... .... ...........................................................Respondent/s 12.Smt. Manorma Singh, wife of late Bipin Bihari Singh, R/O Railway Quarter No. 595/B, Medical Colony, P.O.& P.S. Khagaul, District- Patna. 13. Smt. G.Veda Vidyawati, daughter of late G. Venket Rao, R/o Chirayatad, Prithvipur, P.S. Jakkanpur English Mohalla, Patna .......................................................................... Respondents. Appearance : (In CWJC No. 6146 of 2007) For the Petitioner/s : Mr. Gautam Bose, Sr.Advocate Miss. Ratna Das & Mr. S.K.Dutta, Advocate For the Respondent/s Mr. M.P.Dixit, Advocate Mr. Sanjay Kumar Choubey,Advocate For the Railway Mr. D.K.Sinha, Sr. Advocate & Mr. Mahesh Prasad, Advocate. ----------- (In CWJC No. 5672 of 2007) ---------- For the Petitioner/s : Mr. Gautam Bose, Sr.Advocate Miss. Ratna Das, Advocate For the Respondent/s : M/s. MAHESH PRASAD Mr. M.P.Dixit Mr. Nityanand Mishra Mr. Sanjay Kumar Dixit -------------- P R E S E N T HON’BLE MR. JUSTICE SHIVA KIRTI SINGH HON’BLE MR. JUSTICE SHIVAJI PANDEY --------------- Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 3 Shiva Kirti Singh,, Shivaji Pandey,JJ Heard learned counsel for the petitioners, learned counsel for the Railways and learned counsel appearing for the contesting respondents. 2. Two original applications bearing O.A. Nos 317 of 2004 and 570 of 2005 have been dismissed by a common judgment and order dated 14th March, 2007 passed by the Central Administrative Tribunal, Patna Bench, Patna. That judgment and order is under challenge in both the writ petitions. 3. Both the O.As. were preferred by three applicants including the petitioner Smt. Geeta Sanyal who alone has preferred both the writ petitions. Learned counsel for the petitioner has clarified that respondets Smt. Manorma Singh and Smt. G. Veda Vidyawati were also applicants before the Tribunal and now after death of Smt. Manorma Singh, only Smt. G.Veda Vidyawati is still interested in the out-come of this dispute and she may also be benefited if the seniority matter is decided as per claim of the petitioner. 4. O.A. No. 317 of 2004 contained a prayer for quashing of provisional seniority list dated 23rd February, 2004 of Medical Class III staff of Danapur Division of East Central Railway and for restoring the seniority of the applicants as shown in the provisional list of Nursing cadre dated 8-9-2000. The applicants had also made a prayer that respondents should be directed to consider their cases for promotion to the post of Chief Matron against unreserved quota which should not be filled by reserved category candidates. The other O.A. No. 570 of 2005 was for quashing an order dated 19th July, 2005 passed by Assistant Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 4 Personnel Officer in respect of formation of ad hoc Grade B panel for selection to the post of Assistant Nursing Officer through written test and viva voce. That challenge was basically on account of seniority claimed by the applicants, particularly applicant no.1 over the contesting respondents who belonged to reserved category of S.C./ S.T. employees. 5. The Tribunal has noticed all the relevant dates relating to service career of the applicants including the petitioner which show that petitioner and the other interested person namely respondent G.Veda Vidyawati, who belong to unreserved category were appointed as Staff Nurse in the Railway prior to the contesting respondents but some of the contesting respondents belonging to the reserved category were promoted earlier to the post of Nursing Sisters as well as to the next higher post of Matron at earlier point of time than the petitioner and the other applicants. On account of dispute over promotion and seniority some O.A. applications were preferred by others and the applicants in the year 1973 in which a prayer was made for quashing the seniority list of Matron Grade-II dated 27/28th September, 1993. Those applications were dismissed by the Tribunal and the matter was brought before this Court through C.W.J.C. No. 8589 of 1997. In the meantime, on account of law laid down in some judgments of the Apex Court, the catch up rule was applied by the authorities and a fresh seniority list dated 8-9-2000 was issued. As a result the applicants were shown seniors on the basis of their appointment in the basic grade and not on the basis of date of their respective promotions. The writ petition was, therefore, withdrawn. However, apparently on account of the Constitution 85th Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 5 Amendment Act, 2001 the respondents decided to restore consequential seniority on the basis of promotion granted to the contesting respondents as reserved category candidates. This led to the impugned tentative gradation list of 2004. 6. The learned Tribunal has correctly appreciated the issue which fell for its consideration in the light of pleadings of the two sides and the materials on record which find mention in paragraph-5 of the impugned order dated 14th march, 2007. The issue was whether candidates belonging to the SC/ST categories i.e reserved categories, promoted against the reserved quota, will retain their seniority as a consequence of their promotion or the general candidates ( unreserved) who were senior in the initial cadre will catch up and go above the reserved category candidates, on account of their subsequent promotion to the higher post. The Tribunal had the benefit of judgment of the Apex Court in the case of M. Nagaraja Vrs. The Union of India, reported in 2006(4) PLJR (SC)319. The Tribunal quoted extensively from the said judgment for arriving at a correct conclusion that the catch up rule was no longer applicable on account of 85th Constitutional Amendment which was found valid by the Constitution Bench in the case of Nagaraja ( supra ). 7. Learned counsel for the petitioner submitted that the Tribunal failed to notice several other submissions and has erred in dismissing the claim of the petitioner and other applicants only on account of justification provided by the judgment in the case of M. Nagaraj ( supra ) He further submitted that paragraph 125 of the aforesaid judgment was Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 6 of considerable significance and the Tribunal should have considered the reasonability of extent of reservations and ought to have held that the extent of reservation in this service was excessive and impermissible. He has referred to several judgments to support the principle that there cannot be excessive reservation and in no case it can be beyond a ceiling limit of 50%. According to the submissions the compelling reasons relevant for extent of reservation, such as Backwardness, inadequacy of representation and over-all administrative efficiency were not considered by the respondent authorities before making provisions for reservation in successive promotions. 8. So far the objection that the Tribunal has not considered other submissions of the applicants is concerned, on going through the impugned judgment and order it is clear that all the relevant facts were noticed for coming to the core issue upon which depended the outcome of the dispute over the provisional seniority list of 2004. The challenge to the tentative gradation list was rightly held as meritless in view of 85th Constitutional Amendment. Hence, we are not impressed by the submission that matter should be remanded back to the Tribunal for consideration of several other submissions. 9. So far as submissions on the basis of paragraph-125 of Supreme Court judgment in the case of Nagaraja ( supra ) is concerned, we find that there was no challenge to extent of reservation or validity of the reservation nor there was any pleading on that account in the Original Applications preferred before the Tribunal. Even in the present writ petitions the position remains the same. Hence, in the present Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 7 proceedings we are unable to entertain the aforesaid submission and are not persuaded to consider such issues in absence of any pleading or prayer. A serious matter like challenge to the extent of reservation must be based upon facts and pleadings. In absence of factual foundation the legality of the extent of reservation cannot be permitted to be raised before this Court only by way of submissions. For that purpose we may refer to law laid down by the Supreme Court in the case of Southern Petrochemical Industries Co. Ltd. Versus Electricity Inspector and ETIO and others, reported in (2007) 5 SCC 447. 10. Learned counsel for the petitioners advanced submissions that the promotions granted to the contesting respondents before the year 2000 had been earlier challenged and the validity of those promotions should also have been considered by the Tribunal. This submission is also found to be without merit because the challenge before the Tribunal was only to the tentative seniority list and not to the orders of promotion passed long back. 11. Thus, on considering the entire facts and circumstances we are unable to grant any relief to the petitioner. The writ petitions are, therefore, dismissed. 12. Since learned counsel for the petitioner has vehemently submitted that petitioner is in a position to demonstrate that the extent of reservation in promotion in this particular service is bad and excessive and since we have not gone into that aspect of the matter for reasons Patna High Court CWJC No.6146 of 2007 dt.08-09-2011 8 indicated earlier, we grant liberty to the petitioner that if so advised, she may pursue her grievances and seek remedy through appropriate proceeding in accordance with law. Patna High Court, Patna Dated the 8th September,2011 Naresh AFR ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)