Full Judgment
K. George Joseph, Administrative Member:
1. The applicant retired as Technician Grade-II (Plumber) in PB-2 Rs. 5200-20200 with Grade Pay of Rs. 2400/- from Quilon, Southern Railway, on 31.05.2012. Vide Annexure A-3 order dated 17.02.2011, his immediate senior and immediate junior were promoted as Technician Grade-I (Plumber). Although there was a 3rd vacancy of Technician Grade-I (Plumber), he was not promoted along with them on the ground that there was one ST shortfall in the cadre. In the result, he retired in a lower grade resulting in depletion of his service benefits. His representations in this regard were of no avail. Aggrieved, he has filed this O.A. for the following reliefs:
(i) Set aside Annexure A5(C) order;
(ii) Declare that the applicant is entitled to be promoted as Technician Grade-I (Plumber) in PB Rs. 5200-20200 + GP Rs. 2800 with effect from 12.02.2011 when his junior D. Vijayadas was promoted as such by A3 order, with consequential benefits in pay and pensionary benefits and direct the respondents accordingly;
(iii) Pass such other orders or direction as deemed just fit and necessary in the facts and circumstances of the case;
(iv) Award costs of and incidental to this application.
2. The applicant submitted that for small cadres of 13 and below, promotions shall be governed by Replacement Roster at Annexure-III to Annexure A-7. There is neither reservation nor shortfall of ST in the cadre of Technician Grade-I (Plumber) until the cycle is completed. Hence the impugned Annexure A5(C) letter is liable to be quashed. The post of Technician Grade-I (Plumber) vacated by Shri P.J. Johnson (ST) on his promotion being the 4th replacement post, the turn of ST in the cadre is due only after the 5th to 12th and 1st to 3rd turns of other community as per Annexure A-7 order dated 21.08.1997 of the Railway Board. There were only 03 incumbents, including the applicant, in the cadre of Technician Grade-II (Plumber) before the issuance of Annexure A-3 order. The 8th replacement of SC as per Annexure A-7 was not due when he was superseded by the SC candidate.
3. The respondents in their reply statement submitted that the challenge against Annexure A5(C) is hit by delay. He ought to have filed the O.A on or before 10.02.2012 as Annexure A5(C) is dated 11.02.2011, whereas the O.A was filed at the end of July, 2012. The respondents submitted that there were only 03 Technician Grade-II (Plumber) including the applicant available during the period 2005-2011 when only 03 vacancies arose in the category of Technician Grade-I (Plumber). As no employee belonging to the ST category was available in the feeder category of Technician Grade-II (Plumber), one post has been kept unfilled and the remaining 02 posts (01 for SC and 01 for UR) have been filled up by Annexure A-3 order. The respondents admitted that for small cadres of 13 and below, promotions shall be governed by replacement roster as per paragraph 4(d) of Annexure A-7. But according to them, it does not mean that there is neither representation nor shortfall until the cycle is completed. The post vacated by Shri P.J. Johnson was the 3rd replacement post in the category of Technician Grade-I (Plumber) which needs to be filled up by a ST candidate. No vacancy is illegally kept vacant for the ST category. Annexure A5(C) letter is not unjust, illegal or unconstitutional.
4. In the rejoinder the applicant submitted that the reason given in Annexure A5(C) letter is 'one ST shortfall', which is untenable for two reasons. Firstly, there were 02 UR vacancies; Secondly there was no ST shortfall since the next turn of ST occurs against the 4th roster point in the next cycle under Annexure A-7. The respondents have applied the normal rules of reservation for SC/ST, which is apparent from the inscriptions "SC=15% and ST+7.5%" in Annexure R-1,which is opposed to Para 4(d) of Annexure A-7 rules. As per Annexure A7(a), there is no reservation , but only a replacement in turn for SC/ST. Therefore, any vacation of a post by SCT/ST under Annexure A-7 roster does not result in a shortfall.
5. We have heard M/s Varkey and Martin, learned counsel for the applicant and Mr. R. Sreeraj for Ms. K. Girija, learned counsel for the respondents and perused the records.
6. The issue for consideration is whether the respondents are justified in keeping one post vacant for ST category instead of promoting the applicant to the cadre of Technician Grade-I (Plumber) along with his immediate senior and junior on 17.02.2011. The respondents have admitted that as per paragraph 4(d) of Annexure A-7, for small cadres of 13 and below, promotions shall be governed by replacement roster. Relevant part of paragraph 4(d) of Annexure A-7 dated 21.08.1997, is reproduced as under:
"4. (d) In the small cadre upto '13' posts the method prescribed for preparation of rosters does not permit the reservation to be made for both categories - SC/ST. Therefore, enclosed roster (Annexure-III) for cadre strength upto 14 posts may be followed. The principle of operating the rosters has been detailed in the Explanatory Notes." (emphasis supplied)
Annexure-III to Annexure A-7 is as under:
"Annexure-III of Letter No. 95-E(SCT)I/49/5/12), Dated 21.08.97.
Model Roster for promotion for cadre strength upto 14 posts
Replacement No.
----------------------------------------------------------------------------------------------
Cadre Initial
Strength App. 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th 14th
----------------------------------------------------------------------------------------------
1. UR UR UR SC UR UR UR ST UR UR UR SC UR UR UR
2. UR UR SC UR UR UR ST UR UR UR SC UR UR UR
3. UR SC UR UR UR ST UR UR UR SC UR UR UR
4. SC UR UR UR ST UR UR UR SC UR UR UR
5. UR UR UR ST UR UR UR SC UR UR UR
6. UR UR ST UR UR UR SC UR UR UR
7. UR ST UR UR UR SC UR UR UR
8. ST UR UR UR SC UR UR UR
9. UR UR UR SC UR UR UR
10. UR UR SC UR UR UR
11. UR SC UR UR UR
12. SC UR UR UR
13. UR UR UR
14. UR UR
Note: 1. For cadres of 2 to 14 posts the roster is read from entry 1 under column Cadre Strength till the last post and then horizontally till the last entry in the horizontal row i.e. Like "L".
2. All the posts of a cadre are to be earmarked or the categories shown under column Initial Appointment. While initial filling up will be by the earmarked category, the replacement against any of the post in the cadre shall be by rotation as shown horizontally against the last post of the cadre.
3. The relevant rotation by the indicated reserved category could be skipped and carried forward to next unreserved point if it leads to more than 50% representation of reserved category."
Paragraph 11 of the Explanatory Notes dated 21.08.1997 in Annexure A-7 is also relevant for consideration of the instant case. Hence, it is reproduced as under:
"11. In the case of small cadres (upto 14 posts), all the posts shall be earmarked on the same pattern as in the Annexure A-III. Initial promotion against these posts shall be by the category for which the post is earmarked. Replacement of incumbents of posts shall be by rotation as shown horizontally against the cadre strength as applicable. Railways and other units should also make their own rotational rosters for small cadres for which recruitments are made on local/regional basis i.e. for post of which starting grade is less that 1400 (RPS). While operating the relevant roster, cadre will have to be taken to ensure that on no occasion the percentage of reserved category candidates exceed 50%. If such a situation occurs at any time, the relevant reserved point occurring as a result of rotation will be skipped and carried forward to the next unreserved point." (emphasis supplied)
Although the respondents admitted that Replacement Roster is to be followed in respect of small cadres of 13 and below, they have not followed it as it should be, in the instant case wherein the cadre strength is only 03 (as stated by them). Shri P.J. Johnson belongs to ST category. From Annexure R-1, it is clear that he was the 3rd replacement. As per model Roster, the 3rd replacement is meant for UR category. If he was accommodated against UR replacement, there is no reason why a UR candidate cannot be accommodated against the 5th replacement post meant for ST, when ST candidate is not available to take it. The respondents have treated the 1st and 5th replacements as reserved for SC and ST which is not permissible as per para 4(d) of Annexure A-7. As rightly contended by the applicant, vacation of a post by SC/ST under A-7 roster does not result in a shortfall. To the extent the concept of shortfall was introduced, the implementation of the model Roster at Annexure-III to Annexure A-7, was incorrect and to the prejudice of the applicant. Further, if the respondents treat the first replacement post as consumed by SC on 17.02.2011 it would hold good that the 5th replacement post was consumed by ST on 05.09.2002, when Shri P.J. Johnson was promoted, leaving the field clear for the applicant to be promoted on 17.02.2011.
7. In the light of the above discussion, we declare that the applicant is entitled to be promoted as Technician Grade-I (Plumber) in Pay Band Rs. 5200-20200 with Grade Pay of Rs. 2800/- with effect from 17.02.2011, when Annexure A-3 was issued. Accordingly, it is ordered as under.
8. Annexure A5(C) letter dated 11.02.2011 is quashed. The respondents are directed to grant notional promotion to the applicant in the cadre of Technician Grade-I (Plumber) with effect from 17.02.2011 and release all consequential pensionary benefits within a period of 02 months from the date of receipt of a copy of this order. No costs.