Case: UNION OF INDIA &amp; ORS Vs. GOPAL MEENA &amp; ORS

and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration. 22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings: 27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents. 28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST. 29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs. 23. The order impugned in the Original Application was the order dated 4.2.2005 rejecting the representations of some of the candidates for promotion that the candidates have joined Central Excise (Delhi Zone) as Inspector on Inter Commissionerate transfer basis in the year 2003. The Tribunal has not examined the question of seniority on account of Inter Commissionerate transfer. The order dated 4.2.2005 was set aside and a direction was issued to grant same treatment to SC/ST candidates in ad hoc promotions as well as in regular promotions. 24. After the said decision of the Tribunal, DoPT issued revised guidelines for optimizing the size of zone of consideration on 6.1.2006 independent of the order of the Tribunal dated 19.10.2005, which has been adversely commented upon by the Tribunal. 25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up. 26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC). 27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion. 28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive. 29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: - (i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and (ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. In P. Sheshadri, the Office Memorandum dated 24.12.1980, referred to by the learned counsel for the appellant, along with the other Office Memorandums were the subject matter of consideration. This Court held as under:11. …..Further clause (ii) of para 2.3.2. of OM dated 10-3- 1989 contemplates that selection against vacancies reserved for Scheduled Castes and Scheduled Tribes will be made only from those Scheduled Caste/Scheduled Tribe officers who are within the normal zone of consideration prescribed by the Department of Personnel and AR vide OM No. 22011 dated 24-12-1980. It further contemplates that where (sic adequate) number of Scheduled Caste/Scheduled Tribe candidates are not available within the normal field of choice, it may be extended to five times the number of vacancies and Scheduled Caste/Scheduled Tribe candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them. If candidates from Scheduled Castes and Scheduled Tribes obtained on the basis of merit with due regard to seniority, on the same basis as others, are less than the number of vacancies reserved for them, the difference should be made up by selecting candidates of these communities, who are in the zone of consideration, irrespective of merit and benchmark but who are considered for promotion and officers belonging to Scheduled Castes and Scheduled Tribes selected for promotion against vacancies reserved for them from within the extended field of choice would however be placed en bloc below all the other officers selected from within the normal field of choice….21. We find that the Tribunal and the High Courts have missed the real controversy. The Government of India had issued an Office Memorandum dated 26.8.2004 to fill backlog vacancies reserved for Scheduled Caste and Scheduled Tribe in promotion quota as a special drive. Such Office Memorandum was not relating to the Customs and Central Excise Commissionerate or the Indo Tibetan Border Police but to all the employees of the Central Government. The candidates in the Office of Customs and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration.22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings:27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents.28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST.29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs.25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up.26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC).27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion.28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive.29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: -(i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and(ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise.