Civil Writ Petition No. 5771 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 5771 of 2008 Date of Decision: 31.7.2009 Union of India …Petitioner Versus Mahender Singh and Others …Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE. HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Ms. Geeta Singhwal, Advocate Central Government Standing Counsel for the petitioner. Mr. Balbir Singh, Advocate for Mr. Dinesh Kumar, Advocate for respondents No.1 and 2. Kanwaljit Singh Ahluwalia, J. (Oral) The controversy involved, by efflux of time, stand resolved because of order passed in cases of other similarly situated persons, who had obtained order from the Principal Bench of Central Administrative Tribunal at New Delhi, which as per information supplied to us stand affirmed by a Division Bench of the Delhi High Court due to the dismissal of the Writ Petition (Civil) preferred by the petitioner Union of India against grant of similar relief to similarly situated persons like Civil Writ Petition No. 5771 of 2008 2 respondents No.2 and 3. Having spelt the circumstances in which we have to deal with the present case, we proceed to notice brief facts, prayer made by the petitioner and proposition of law which has been raised in the present petition. Mahender Singh (M.S. Meena) and Ramji Lal (R.L. Meena), respondents No.2 and 3, joined the Central Excise Department of Government of India and were promoted & joined as Inspectors on 24.11.1994. The Government of India, Ministry of Personnel, issued an office memorandum on 26.8.2004 (Annexure P1) to launch special recruitment drive to fill backlog reserved vacancies in promotion quota where Scheduled Caste and Scheduled Tribe candidates were available. Respondents No.2 and 3 belong to Scheduled Caste & Scheduled Tribe category. Respondent No.2 submitted a representation (Annexure P2) to the Chief Commissioner, Central Excise Commissionerate, Central Revenue Building, Chandigarh, that on 29.9.2002 a meeting of Departmental Promotion Committee was held for grant of promotions to the post of Superintendent, his name was not considered as he had not completed eight years of service and subsequently the Government had granted one year relaxation and has ordered to review the promotions made by Departmental Promotion Committee. Therefore, a prayer for promotion was made in the representation. The request was declined on the ground that the names of respondents have not figured in the list of the candidates falling in the normal as well as extended zone of consideration. Denial of the relief to the respondents, led them to file Original Application bearing No. Civil Writ Petition No. 5771 of 2008 3 503/CH/2006 (Annexure P4) before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh. In the original application, it was inter-alia stated that on 31.7.2002 to 9.9.2002, 15 Inspectors were promoted to the post of Superintendent and again from 23.9.2002 to 27.10.2002, 65 Inspectors were promoted to the post of Superintendent Group B w.e.f. 7.1.2003 and 28 Inspectors were promoted along with them. It is stated that in total 108 Inspectors were promoted to the post of Superintending Group B during July 2002 to January 2003. This, according to the respondents, was in violation of policy instructions issued by the Government of India that the concerned department has to conduct one Departmental Promotion Committee in a year but the Chandigarh Commissionerate deliberately and intentionally split the vacancies and conducted three Departmental Promotion Committees so that respondents are kept out of zone of consideration. It was stated that there was no justification for the petitioner to split vacancies and hold separate meetings of Departmental Promotion Committee. In reply (Annexure P5) thereto, Additional Commissioner, Central Excise Commissionerate, Chandigarh, gave reason that separate meetings of Departmental Promotion Committees were held as occurrence of vacancies could not be anticipated, due to undertaking of cadre structuring exercise. During the pendency of the Original Application before the Chandigarh Bench, similarly situated colleagues of the respondents No.2 and 3 with a similar claim, approached Principal Bench of Central Administrative Tribunal at New Delhi. Civil Writ Petition No. 5771 of 2008 4 Relying upon judgment of the Hon'ble Apex Court in U.P. Rajya Vidyut Parishad SC/ST karamchari Kalyan Sangh v. U.P. State Electricity Board & Others (C.A. No. 4026 of 2008 decided on 23.11.1994), they urged before the Principal Bench of Central Administrative Tribunal at New Delhi that there should be a separate Zone of consideration for Scheduled Caste/Scheduled Tribe candidates and clubbing these categories with general category for the purposes of preparation of Zone of consideration is an anti-thesis to the object of reservation. It was further stated that the Hon'ble Apex Court had reiterated the above view in case of C.D. Bhatia v. Union of India (SLP No. 14568-69 decided on 20.10.1995). To fortify this submission, another judgment of the Hon'ble Apex Court in Basudeo Anil v. Union of India (C.A. No. 1194/92 decided on 7.9.2000) was cited to say that it has been pronounced by the Hon'ble Supreme Court that separate zone of consideration should be maintained for Scheduled Caste/Scheduled Tribe candidates. The plea raised therein by the Inspectors belonging to Scheduled Castes/Scheduled Tribes was accepted and the Principal Bench of Central Administrative Tribunal at New Delhi had partly allowed the original application. Hence, vide impugned order (Annexure P7) Central Administrative Tribunal, Chandigarh Bench, Chandigarh, held as under:- “Since, the order of the Principal Bench in O.A. No. 688/2005 has not been challenged by way of filing of any writ petition before the Hon'ble High Court and the facts of this case are undisputedly the same as the facts of the O.A. No. 688/2005, we Civil Writ Petition No. 5771 of 2008 5 dispose of this O.A. Also in terms of the observation and direction made by a Bench of Principal Bench, New Delhi in the case of Gopal Meena and another (supra)”. Petitioner Union of India had filed the present petition on the ground that order of Principal Bench has been assailed by them by preferring the Writ Petition (Civil) No. 356 of 2008 in Delhi High Court. We have been informed by Ms. Geeta Singhwal, Advocate, Central Government Standing Counsel that she has received an information that the writ petition preferred against the decision of Principal Bench in “Gopal Meena & Others v. Union of India & Others” has been dismissed by a Division Bench of Delhi High Court. The Delhi High Court while dismissing the writ petition preferred by the petitioners has ordered as under:- “15. We may only add at this stage that the Tribunal in its judgment dated 19.10.2005 in OA No. 688/2005 had discussed in detail the rationale behind maintaining separate rosters. Dr.Raju, learned counsel appearing for the respondent had led great emphasis on this part of the order and, therefore, for the sake of record, it would be necessary to reproduce the same:- “24. Through the Apex Court decision is binding on us as a precedent, we are not merely reiterating the same, but the underline object of preparation of separate Civil Writ Petition No. 5771 of 2008 6 zone of consideration has a rational and reasonable nexus with the object sought to be achieved. If by way of post-based roster and before that a vacancy-based roster till require percentage is satisfied for reserved categories by preparation of common zone of consideration of reserved and unreserved candidates as per the formula promulgated by the DoPT vacancies which are unfilled and the required percentage of reserved categories has not been achieved as per the prescribed percentage then the situation would be that though eligible SC/ST candidates are available but as these candidates are not falling even within the zone of consideration the vacancies are either to be de-reserved and on filing these vacancies if remained unfilled would go for as a backlog quota. Once our Constitution has adopted reservation and has upheld its validity in Indira Sawhney v. Union of India, 1992 Supp.(3) SCC 217 then leaving out eligible candidates for consideration only on the basis of their having not come Civil Writ Petition No. 5771 of 2008 7 within the zone of consideration would frustrate the very object of upliftment of reserved categories and to bring them to the main stream on the basis of socio- economic backward classes. 25. In an administrative action doctrine of justice has applicability. It has to be read as part and parcel of it, as held by the Apex Court in Ganesh Santa Ram Sirur v. State Bank of India & Anr., 2005 (2) SLJ 246. Government as a model employer is to abide by the mother law of India, i.e., Constitution of India. Fairness in action and equality before law is an essence under Article 14 of the Constitution of India. Government is forbidden to adopt invidious classification or to adopt differential treatment to a class in the matter of promotion. Inaction of the Government not to have brought out executive instructions in compliance and to cope up with the directions of the Apex Court is also not in consonance with law. The directions of the Court bind executive and the only way to avoid conflict is to pass appropriate law through Legislature. Civil Writ Petition No. 5771 of 2008 8 Either to counter it or to whittle it down, no other procedure/process has been prescribed within the parameters of our Constitution to avoid compliance of the directions of the Apex Court”. 16. Once we conclude that as per the aforesaid judgments of the Supreme Court separate zone of consideration was to be prepared in respect of ST candidates for promotion to the post of Superintendent, the directions of the Tribunal in the impugned judgment dated 10.7.2007 would not call for any interference. 17. OM dated 25.4.2008, while maintaining the provision contained in the earlier OM dated 6.1.2006, mentions about the opinion of the Attorney General of India in the following manner:- “6. The Attorney General of India has, therefore, given the following answer with regard to the questions raised above:- (i) The extended zone of consideration for SC/ST candidates is substantially equivalent to a separate zone of consideration for SC/ST candidates. This is subject to the rider that in practice the extended zone appears to be more limited than the separated zone. Civil Writ Petition No. 5771 of 2008 9 (ii) Conceptually, an extended zone of consideration would tantamount to a separate zone of consideration for SC/ST candidates as in the extended zone only SC/ST category candidates are considered. However, there has to be a limit how far one can go down in the overall gradation/seniority list”. 18. It is clear from above that even as per the OM, there had to be a separate zone of consideration apart from and extended zone of consideration for SC/ST candidates. What is mentioned is that extended zone of consideration would tantamount to a separate zone of consideration for SCs/STs. Our only reservation is that as per the judgment of the Supreme Court, the implementation of the OM dated 25.4.2008 cannot be secured by extending the zone of consideration. There has to be an entirely separate zone of consideration. Of course, after having the separate zone of consideration for SC and ST candidates, it can be limited to 1, 2 or 5 times of vacancies in OM dated 6.1.2006. 19. In the result, this petition, being devoid of any merits, is dismissed. The directions of the Tribunal shall now be complied with within three Civil Writ Petition No. 5771 of 2008 10 months”. We have gone through the decision of the principal Bench of Central Administrative Tribunal at New Delhi and the judgment rendered by a Division Bench of Delhi High Court. Counsel for the petitioner has failed to persuade us to formulate any contrary opinion. We are of the view that for the valid reasons, Principal Bench, Central Administrative Tribunal at New Delhi and the Delhi High Court had not agreed with the contentions raised by the petitioners which have been raised before us. We adopt the reasoning given by the Delhi High Court in Union of India & Others v. Gopal Meena & Others (Writ Petition (Civil) No. 356 of 2008 decided on 23.4.2009). Since counsel for the parties are in agreement that the case of petitioner is not different from the case of Gopal Meena & Others (supra) and the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, has allowed the Original Application of respondents No.2 and 3 in same terms as in Gopal Meena's case (supra), we do not find any merit in the present petition and dismiss the same. No order as to costs. (T.S. Thakur) (Kanwaljit Singh Ahluwalia) Chief Justice Judge July 31st, 2009 “DK”