IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4174 of 2010. Decided on: 25.2.2011. ___________________________________________________________ Nikku Ram and another. … Petitioners. Versus H.P.S.E.B. & others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Ranjan Sharma, Advocate. For respondents No. 1 & 2 : Ms. Anjula Khajuria, Adv.. For respondents No. 3 & 4 : Nemo (Ex parte). ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). On 3.1.2011, respondents No. 3 & 4 were present in person. However, today neither they are present nor represented by any counsel. Accordingly, they are proceeded against ex parte. 2. The petition has been filed on the following prayers vide para 12 (i) to (iv):- (i) That the action of the respondent-Board in neither reconsidering the rejection orders dated 15.12.2008 vide Annexure P-6 or in not holding review DPC nor in considering the petitioners for promotion as SSA against the existing vacancies of SSA in Operation Circle Hamirpur from the due date despite requests vide Annexures P-9 to P-11 may kindly be declared illegal. (ii) That the rejection orders dated 15.12.2008 vide Annexure P-6 may kindly be quashed and set aside forthwith. (iii) That the orders dated 29.9.2006 vide Annexure P-4, promoting the general category candidates i.e. the respondents No. 3 & 4 as SSA may kindly be quashed and set aside forthwith. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 (iv) That the respondents may be directed to consider and promote the petitioners as SSA w.e.f. 29.9.2006 or like due date with all consequential benefits like seniority and pay fixation etc. forthwith. 3. The stand taken on behalf of the respondents vide the relevant portion of preliminary submissions at para 1 is as under:- “The total sanctioned strength of SSA in Operation Circle, Hamirpur is 44 out of which 26 posts fall to the cadre of 60% promotional quota. As per 15% reservation quota, 4 posts of SSAs fall to the share of scheduled caste category. S/Sh. Mehar Singh & Rai Singh, SSA working under Operation Circle, Hamirpur who also belong to scheduled caste category were promoted to the post of JE (S/Stn.) vide order dated 20.8.05 (Annexure RA-VII). A Circle level Departmental Promotion Committee meeting was convened by the Superintending Engineer, Operation Circle, Hamirpur on 29.9.2006 to consider the promotion of eligible candidates of Helper (S/Stn.) category to the posts of Sub Station Attendant against available vacancies of 60% promotional quota posts. As per instructions circulated vide H.P. Govt. letter No. PER (AP)-CB (12)-1/98 dated 20.8.98 adopted by the respondent-Board vide order dated 13.10.98 (Annexure RA-VIII), it has been provided as under:- 2 “The Constitution Bench of the Supreme Court, in the case of R.K. Sambharwal Vs State of Punjab as well as J.C. Mallick Vs Ministry of Railways has held that the reservation of jobs for the backward classes SC/ST/OBC should apply to posts and not to vacancies. As per the direction of the Court the vacancy based rosters can operate only till such time the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentages of reservation. Thereafter, the rosters can not 3 operate and vacancies released by retirement, resignation, promotion etc. of the persons belonging to the general and the reserved categories are to be filled by appointment of persons from the respective category so as to maintain the prescribed percentage of reservation.” 7. “Excess, if any, would be adjusted through future appointments and the existing appointments would not be disturbed.” At the relevant time, the category-wise break-up and actual representation of Sub-Station Attendant working against 60% promotional quota in Operation Circle, Hamirpur was as under: Sr. No. Category Prescribed share break-up of posts Actual representation Variation 1 General 77½% 20 15 (-) 5 2 SC 15% 4 8 (+) 4 3 ST 7½% 2 1 (-) 1 Total 100% 26 24 (-) 2 A copy of combined seniority list of SSAs as it stood on 1.5.2006 indicating therein the name of category is annexed as (Annexure RA-IX) for kind perusal of this Hon’ble Court. As per the abovoe representation of SSAs, the prescribed share of SC category was already occupied in excess. Therefore, the petitioners could not be considered for promotion to the post of Sub-Station Attendant and the posts of 2 Nos. SSAs vacated by the candidate of scheduled caste category were filled up by promoting the general category candidates (Respondent no. 3 & 4). It is, however, added that Sh. Mukesh Kumar, Helper (S/Stn.) (Petitioner No. 2) has been promoted as Sub- Station Attendant vide order dated 19.6.2010 (Annexure RA-X) against 10% separate promotional quota prescribed for ITI holder Helper (S/Stn.). the name of Sh. Nikku Ram (petitioner No. 1) appearing at Sr. 9 in the joint seniority list of Helper (S/Stn.) as it 4 stood on 1.1.10 (Annexure RA-XI) and he will be promoted in his turn as and when posts of promotional quota become available in the cadre of SSA under Operation Circle, Hamirpur. The representation earlier filed by the petitioners was accordingly decided by the competent authority in consonance with the above instructions vide order dated 15.12.2008 (Annexure P-6 of CWP) and as such the instant writ petition is not maintainable and deserves outright dismissal.” 4. The petitioners, who belong to reserved scheduled caste (C.S.) category, were at the relevant time working as Helpers in the respondent-Board in Hamirpur Operation Circle. In 2005, two promotional posts of Sub Station Attendant (SSA) meant for S.C. category became available in that Circle which were claimed by the petitioners. However, they were not considered and instead private respondents No. 3 & 4 who belong to unreserved general category were promoted. Being aggrieved, the petitioner moved the erstwhile H.P. State Administrative Tribunal by way of O.A. No. 575/2008 which was ordered to be treated as representation which ultimately came to be rejected vide office order dated 15.12.2008, Annexure P-6, on the following grounds:- “As per the record of relevant Departmental Promotion Committee placed before me, the total cadre strength of SSAs in Operation Circle, Hamirpur during 9/2006 were 44 posts out of which 26 posts fall to the share of promotional quota posts. Out of these 26 posts of promotional quota, 3 posts fall to the share of Scheduled Caste category against the 15% reservation quota as provided under the instructions issued vide Secretary, HPSEB letter dated 13.10.98. As per the Memorandum placed before the DPC held on 29.9.2006, two posts of SSAs were stated to be falling to the share for the category of Scheduled Caste which were vacated on the promotion of S/Sh. 5 Mehar Singh & Rai Singh, SSAs as JE (S/Stn.) who belonged to the category of Scheduled Caste. However, perusal of seniority list of SSAs as it stood on 1.1.2006 circulated by the Superintending Engineer, Operation Circle, Hamirpur vide his letter No. 240100/A/2006-07-3821-28 dated 17.7.2006 revealed that 8 Nos. incumbents belonging to Scheduled Caste category were already existing in the Circle cadre of Operation Circle, Hamirpur whereas only 3 posts were meant to the Scheduled Caste category against the total cadre of 26 posts. Thus a total contradiction of facts is apparent in the Memo placed before the D.P.C. held on 29.9.2006. As per instructions circulated vide H.P. Govt. letter No. PER (AP)-CE (12)-1/98 dated 20.8.98 adopted in the Board vide No. HPSEB/Sectt/14-2/98-70639-839 dated 13.10.98, it has been provided as under:- 2. “The Constitution Bench of the Supreme Court, in the case of R.K. Sambharwal Vs. State of Punjab as well as J.C. Mallick Vs. Ministry of Railways has held that the reservation of jobs for the backward classes SC/ST/OBC should apply to posts and not to vacancies. As per the direction of the Court the vacancy based rosters can operate only till such time the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentages of reservation. Thereafter, the rosters can not operate and vacancies released by retirement, resignation, promotion etc. of the persons belonging to the general and the reserved categories are to be filled by appointment of persons from the respective category so as to maintain the prescribed percentage of reservation.” 7. “Excess, if any, would be adjusted through future appointments and the existing appoints would not be disturbed.” 6 And whereas it has been found that as per 15% reservation provided to the category of Scheduled Caste, the cadre strength of this community on total cadre posts of SSA of 26 works out, as 3 posts against which 8 Nos. SSA belonging to the category of Scheduled Caste were already existing in the cadre of Operation Circle, Hamirpur as was also given in minutes of meeting of the Departmental Promotion Committee held on 29.9.2006. Therefore as per the above instructions, roster register was ceased to operate and the D.P.C. has accordingly recommended the promotion of the candidate from the general category although the posts were vacated by the Scheduled Caste candidate as their prescribed percentage was already achieved/in excess by 5 persons.” 5. It shall be relevant to notice at this stage that though in the meantime petitioner No.2 has since been promoted as SSA w.e.f. 19.6.2010, yet according to him, his claim for promotion relates to the year 2006. 6. Admittedly, the cadre of Helpers is a divisional cadre. However, the rules of the respondent-Board permit inter-division transfer of Helpers. 7. The stand on behalf of the respondents is that out of 26 posts of promotional quota, 3 posts were meant for S.C. category against the 15% reservation quota, out of which 2 posts fell vacant in the year 2005. However, since 8 incumbents belonging to S.C. category were already existing in the cadre of promotional post of SSA against only 3 posts meant for that category, the petitioners could not be considered for promotion as SSA and instead private respondents No. 3 & 4 who belong to unreserved general category were promoted. However, according to the petitioners, out of 8 S.C. category SSAs, namely, S/Shri 7 Rattan Chand, Tilak Chand, Janak Chand, Baldev Singh, Suresh Kumar, Kuldeep Singh, Tara Chand and Joginder Singh, 5 incumbents namely, S/Shri Rattan Chand, Tilak Chand, Baldev Singh, Suresh Kumar and Tara Chand did not belong to Operation Circle, Hamirpur and had instead come to that Circle by transfer from other Circles and as such they could not be counted for determining 15% reservation quota meant for S.C. category in the transferee Circle in violation of clause 5 (d) of reservation instructions issued by the State Government vide letter dated 20.8.1998, Annexure P-11, as adopted by the respondent-Board vide O.M. dated 13.10.1998, Annexure P-12, which is as under:- “5(d) Since reservation does not apply to transfer on deputation/transfer, where the recruitment rules prescribed a percentage of posts to be filled by this method, such posts shall be excluded while preparing the rosters.” 8. It is further contended that one S.C. category SSA, namely, Shri Janak Raj, who was promoted by virtue of his normal seniority/merit and not on the basis of reservation could also not be considered in the promotional quota as per clause 3 of the aforesaid instructions which is as follows:- “3. The Court also held that persons belonging to the reserved categories, who are appointed on the basis of merit- and not on account of reservation, are not to be counted towards the quota meant for reservation.” 9. It is next contended on behalf of the petitioners that one Shri Joginder Singh, who belongs to S.C. category and was appointed as SSA by direct recruitment, could also have not been counted towards the 15% promotional quota in terms of clause 5 (a) of the aforesaid instructions, Annexure P-11, read with Explanatory Note3 of Annexure-A thereto, which are as under:- 8 “5 (a) Since reservation for OBC’s does not apply in promotions, there shall be separate rosters for direct recruitment and for promotions. 3. There should be separate rosters for direct recruitment and for promotions where reservation in promotion applies.” 10. Thus, it is manifest that the claim of the petitioners has been rejected vide the aforesaid office order dated 15.12.2008, Annexure P-6, in derogation of the aforesaid instructions and office memo, Annexures P-11 and P-12, issued/adopted by the State Government/respondent-Board. Meaning thereby that if the aforesaid 7 persons, namely, S/Shri Rattan Chand, Tilak Chand, Janak Chand, Baldev Singh, Suresh Kumar, Tara Chand and Joginder Singh, are excluded from the roster for promotion to the post of SSA against the 15% reservation quota, the petitioners ought to have been considered against the two posts meant for reserve S.C. category and private respondents No. 3 & 4 could not have been considered. However, they cannot be disturbed at this late stage. 11. In view of the above, the petition is allowed and the impugned office order dated 15.12.2008, Annexure P-6, is quashed with a direction to respondents No. 1 & 2/competent authority to consider the case of the petitioners for promotion to the post of SSA against the 15% reservation quota meant for S.C. category notionally from the due date on the basis of DPC held on 29.9.2006 and along with consequential benefits in respect of petitioner No.1, Shri Nikku Ram from the date of actual promotion as SSA against an existing vacancy and qua petitioner No.2, Shri Mukesh Singh from the date of his actual promotion as SSA i.e. 19.6.2010. However, they shall be entitled to seniority over and above 9 respondents No. 3 & 4 from the due date on the basis of DPC held on 29.9.2006. 12. The entire process, as above, shall be carried out in the light of this judgment within three months from the date of production of copy of this judgment by the petitioners. 13. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. February 25, 2011. (cr)