Dr. B. K. Sinha, Member (A):
1. The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act,1985 assailing the draft Civil/Seniority list of officers in Junior Administrative Grade(JAG) of IIS Group œA? issued on the basis of review DPC held on 16.05.2012 wherein respondent no.2 belonging to 1990 Batch of IIS Group œA? has been declared senior to the applicant, who belongs to 1989 Batch of the same Service. The applicant apprehends that the DPC proceedings under active consideration of respondent no.1 based on the said seniority list in so far as the applicant qua the respondent no.2 is concerned is likely to result in commission of grave injustice to her.
2. The applicant has prayed for the following relief(s):-
That the draft seniority list of Senior Grade of IIS Group A issued on 18.07.2012 (Annexure A-1) declaring respondent no.2 belonging to IIS 1990 batch, senior to the applicant, who belongs to IIS 1989 batch, be quashed and set aside.
The respondent no.1 and 3 be directed to complete the process of rectifying/restoration of seniority of the applicant thereby placing the applicant at her right and due place in the seniority list and then proceed to hold DPC/review DPC etc. at least from JAG/NFSG level to SAG level taking into account her position as she (the applicant) was placed in examination conducted by UPSC in 1988 on the basis of which she was inducted into the IIS.
This application may be allowed with costs in favour of the applicant and against respondents as they have forced the applicant to take this legal recourse.
3. The facts of the case, briefly put, are that the applicant is a directly recruited member of the Indian Information Service (hereinafter referred to as œIIS?) and allocated to 1989 batch. She was placed at Sl.No.6 below one Bhupinder S. Kainthola and above one K.P. Jayakar vide order dated 21.09.1993. Likewise, admittedly, the respondent no.2 is also a directly recruited member of the same Service allotted to 1990 batch, a batch junior to the applicant. Further, admittedly, the respondent no.1 is the Cadre Controlling Authority of the IIS Group œA?. It is the case of the applicant that the seniority in respect of direct recruits is based on the relative merit position in the competitive examination conducted by the UPSC and the Presidential Notification dated 21.09.1993 issued by the respondent no.1 appointing the applicant (1989 batch) in a substantive capacity in Junior Grade of Service. Subsequently, the applicant was deputed to the Ministry of Earth Sciences on central Deputation as Director for a period of 5 years from 26.02.2008 and rejoined the respondent no.1 on 26.07.2013 after having availed a period of two months following the central deputation. During this interregnum, while the applicant was on deputation, the respondent no.1 published a seniority list in respect of JAG Grade Officers of IIS Group œA? as on 01.04.2009 wherein the applicant was shown at Sl. No.28 i.e. below one E. Marriappan, the respondent no.2 herein. Again the respondent no.1 had published a seniority list on 09.05.2011 as per the extant IIS (Group œA?) Rules wherein the applicant was shown at serial no.31, below the respondent no.2, who was shown at serial no.27 and one Bhupinder S. Kainthola at Sl. No.29. Aggrieved, the applicant submitted a representation on 14.07.2010 to the respondent no.1 as also to respondent no.3 requesting them for correction of her seniority before holding DPC for JAG officers of IIS Group œA? to SAG. The applicant further sent her objections on 31.01.2008 to this very effect. She subsequently filed an RTI application regarding placement of the respondent no.2 in the list of directly recruited persons of 1989 batch above her. The applicant further alleges that the RTI Authorities circumventing the issue provided their internal notes dated 13.05.2011 to 16.05.2011 and a copy of the notification dated 31.01.2008, which, in fact, do not provide for any reservation after entry in Group œA? Service whether as a direct recruit or on promotion. Subsequently, the applicant came to learn that the respondent no.1 had initiated the process of conducting DPC/review DPC from JAG/NSFS level to SAG level on the basis of the invalid and non est seniority lists dated 09.11.2009 and 09.05.2011, which affect the seniority of the applicant vis-`-vis respondent no.2 and is likely to affect her legal rights as well on being considered and appointed before the respondent no.2. The applicant, in support of her claim, has adopted the following grounds:-
The respondents have committed a grave error in placing the respondent no.2 above the applicant despite the fact that there is no reservation on any of the categories after a civil servant had been inducted into Group œA? Service of the Union.
As seniority and promotion have a close nexus, the seniority of the applicant stands to be permanently affected for rest of her service career by this act.
The respondent no.1 had committed a grievous wrong by submitting a proposal to the respondent no.3 on the basis of illegal seniority list wherein the respondent no.2 had been whimsically placed above the applicant.
4. A common counter reply has been filed on behalf of the respondent nos.1 and 3 admitting the fact that the applicant had been allocated to 1989 batch of the IIS Group œA? on the basis of the merit list of CSE 1998 while the respondent no.2 was allocated 1990 batch of the same very Service. The learned counsel for the respondent nos.1 and 3 contended that the promotion of JTS officers of IIS Group œA? to different grades viz. STS, JAG, SAG, Selection Grade and Higher Grade is not done according to the batches to which the officers belong but rather on the basis of availability of vacancies, seniority, completion of qualifying service, service records of the officers and also on the basis of various other instructions issued by the DOPandT from time to time including reservation of the vacancies for SC and ST candidates. The promotion to the next higher grade i.e. Senior Grade of IIS Group œA? (STS) is solely dependent upon the number of vacancies in that Grade. They have further submitted that the applicant could not be promoted to this Grade (STS) along with other 1989 batch officers against the vacancies of 1993-94 and 1994-95 due to the limited number of vacancies available for general category candidates. As per the IIS (Group œA?) Rules, 1987, the method of promotion to STS Grade for the vacancies pertaining to the years 1994-95 and 1995-96 was on the basis of seniority-cum-fitness. However, as per the DOPandT instructions, reservation of SC/ST candidates in promotion even in Group œA? was applicable if the promotions were to be made on the basis of seniority subject to fitness. The respondent no.2, though admittedly a batch junior to the applicant, was considered by the DPC and recommended for promotion to STS Grade against SC vacancy for the year 1994-95 whereas the applicant was promoted to the STS Grade against the 1995-96 vacancy against general category thereby she has become admittedly junior to the respondent no.2. The respondent nos. 1 and 3 would contend that the representations of the applicant had been disposed of in regular course. They have further submitted that the impugned seniority list dated 16.05.2012 of the JAG of IIS Group œA? was issued after having held the review DPC for the years 2003-04 to 2010-11. This review had been initiated due to insertion of œJunior-Senior? clause in IIS (Group œA?) Rules in February, 2008. The DPCs of STS Grade from the years 1993-94 to 2007-08 were also reviewed and on the basis thereof, seniority list of STS Grade of IIS Group œA? was revised and issued on 09.05.2011. The respondent nos.1 and 3 further contend that the merit list prepared on the basis of CSE 1988 has not been disturbed at any point of time and none of the juniors of the applicant in the merit list of CSE 1988 batch belonging to general category has been placed above her and a categorical information to this effect has been furnished to the applicant from time to time. The learned counsel for the respondent nos. 1 and 3 have, therefore, submitted that the respondents have committed no mistake whatsoever and accordingly prayed for dismissal of the instant OA.
5. The applicant has filed a rejoinder application rebutting the facts and arguments raised in the counter reply filed by the respondent nos. 1 and 3. It is submitted that the IIS (Group œA?) Rules 1987 provided Note-III below Schedule IV, which reads as under:-
NOTE-III: If an officer appointed to any post in the service is considered for the purpose of promotion to a higher post, all persons senior to him in the grade shall also be considered notwithstanding that they may not have rendered the requisite number of years of service.?
However, IIS (Group œA?) Rules, 1987 were amended in the year 1991 wherein the Note-III below Schedule IV had been left out inadvertently as a consequence of which a good deal of anomalies occurred whereby junior persons were declared senior. This position was subsequently considered and the IIS (Group œA?) Amendment Rules, 2008 re-introduced the Note-III below Schedule-IV with retrospective effect i.e. from 12.10.1991, the date from which the omission had occurred. This enabled the seniors, who had completed the probation period, to be considered for promotion from where their juniors, who had also completed their requisite qualifying service, were being considered. On account of this re-introduction of the Note-III below Schedule?IV, all the promotions of junior persons over the head of their seniors for the reason of the seniors not having completed their probation period were rectified and they were restored to their original places of seniority.
6. The learned counsel for the applicant further submitted in the rejoinder application that the Recruitment Rules for IIS Group œA? Service were made under Article 309 of the Constitution clearly providing that the seniors, who have completed the probation period, are also required to be considered for promotion where the juniors with requisite qualifying/eligibility service are being considered, with retrospective effect from 12.10.1991. However, this has also a superseding effect upon Notification of the Government of India dated 29.01.1997 whereby one K.P. Jayakar had been placed at Sl. No.12 i.e. above the applicant at serial no.37 as any administrative instructions or rules in consistent to the rules in force in this regard would be non est. The applicant further avers that the review DPCs conducted by the official respondents by virtue of which order dated 29.01.1997 was issued appointing the officers in the Junior Grade of IIS Group œA? also need to be reviewed. The rejoinder application also questions the assertions of the respondents that the merit list of CSE 1988 had never been disturbed by them at any point of time and none of the juniors of the applicant in the list was placed above her in the seniority list. To the contrary, one N.D. Wakankar and K.P. Jayakar were first shown senior to the applicant but in exercise of the review DPC they have been shown junior to her. The applicant has further questioned that reservation would not apply in case of the respondent no.2 as the applicant had been unable to find any such instances in organized Group œA? services in the post-entry phase. The applicant has, therefore, pleaded that the instant Original Application be allowed on these very grounds.
7. We have carefully examined the pleadings of the parties as also such documents, as have been adduced by them, and have also listened to the oral submissions made by the learned counsel on either side. On the basis of the above, we find the following issues emerging:-
Whether the amendment in the IIS Group A Rules, 1987 made in the year 2008 has been correctly applied to the case of the applicant?
Whether the reservation in Group A Services is applicable to the facts of the instance case in respect of respondent no.2?hat relief, if any, could be granted to the applicant?
8. In so far as the first of the issues is concerned, it is an admitted position that the applicant being an IIS officer of 1989 batch had joined the service on 17.01.1990 through CSE, 1988 after having availed the exemption in joining time with the due permission of the DOPandT. The precursor of Indian Administrative Service (IIS) was the Central Information Service (CIS), which had been set up in the year 1959 with the promulgation of CIS Rules, 1959. The CIS Rules, 1959 were further bifurcated and substituted by IIS (Group B) Rules, 195 and IIS (Group A) Rules, 1987. The entry grade for IIS Group A happens to be a junior grade i.e. JTS. It had been a common practice that some of the officers selected in Central Services or even in the Indian Police Service or in the Indian Foreign Service would not join the training against the year for which they were selected preferring to appear in the CSE for that year and would join with the later batches. Rule 4 of the IIS Group-A Rules, 1986 provided inter alia that a candidate allocated to Group-A Service would have to obtain permission to abstain from joining training to appear at the next CSE. This provision was incorporated for the first time for the examination held in 1987 wherein it was decided that probationers who obtained permission to abstain from joining training to appear at the next CSE examination would be assigned seniority from the date he underwent probationary training.
9. The IIS (Group-A) Rules, 1987 provided in Note-III to Schedule-IV as under:-
œNOTE-III: If an officer appointed to any post in the service is considered for the purpose of promotion to a higher post, all persons senior to him in the grade shall also be considered notwithstanding that they may not have rendered the requisite number of years of service.?
Further, the Schedule-III to the same Rules provided the method of recruitment, field of promotion and minimum qualifying service in the next lower grade for appointment of officers on promotion to duty posts included in the various grades of the IIS (Group-A), which reads as under:-
Sl.No. Grade Method of recruitment Field of Selection and the minimum qualifying service for promotion
(1) (2) (3) (4) 1. Super-Time Grade By promotion failing which by transfer on deputation (including short-term contract) Officers of the Senior Administrative Grade (Level-1) failing which from amongst officers in Senior Administrative Grade (Level-II) with 2 Years regular service in the grade.
2. Senior Administrative Grade (Level-I) By promotion Officers in the Senior Administrative Grade (Level-II) 3. Senior Administrative Grade (Level-II) By promotion Officers in the Junior Administrative Grade including the Junior Administrative Grade (Selection Grade) not less than 16 years? total regular service in Group œA? of the service.
4. Junior Administrative Grade (Selection Grade) By promotion on the basis of seniority-cum-fitness Officers who have reached the stage of Rs.2000 in Junior Administrative Grade and have stagnated for not less than 2 years.
5. Junior Administrative Grade By promotion Officers in the Senior Grade with 5 years? regular service in the grade.6. Senior Grade By promotion on the basis of seniority-cum-fitness Officers in Junior Grade with 4 years? regular service in the grade. 7. Junior Grade (i) 50% by promotion
(ii) 50% by direct recruitment in accordance with sub-rule (2) of rule 7 Officers in the Grade-III of CIS with 3 years regular service in the Grade. 10. It is an admitted position that the applicant appeared in the CSE, 1988 and on being successful she was inducted into the IIS Group-A in the year 1989. However, the applicant, after having availed of exemption in joining time with the prior permission of DOPandT vide OM dated 17.01.1990, underwent the training with the officers allocated to 1990 batch of IIS (Group-A) Service. The DOPandT issued a Circular dated 07.01.1993 wherein they have taken into account the previous practice of depressing the seniority of such officers who had joined the service after having availed exemption duly granted by the DOPandT with any of the succeeding batches. This circular made a reference of the decision of this Bench in the case of Alok Kumar and Others versus Union of India and Others [OA No. 206/1989 and 61 others decided on 20.08.1990] which struck down the proviso to Rule 4 of the CSE Rules relating to the depression of seniority. The Tribunal held that such probationers who had obtained exemption to abstain from joining training in order to appear in the next CSE would not be adversely affected in the matter of fixation of their seniority. This order was further confirmed in the case of Mohan Kr. Singhania and Others versus Union of India and Others [1991 (1) SCC 408]. The relevant directives of the DOPandT vide OM dated 07.01.1993 under reference reads as follows:-
œ3. In the light of CAT judgment, this Deptt. Have reviewed the instructions issued earlier referred to above for amending rules applicable to services recruitment to which is made through the C.S.E. for depression of seniority of probationers joining service late. It has been decided that a candidate who obtained permission to abstain from joining training to appear at the next CSE will retain his original seniority. This decision will be applicable to probationers appointed to different services on the basis of the C.S.E. held in 1987 onwards. If the relevant Services Rules have already been amended to depress the seniority of such probationers in light of instructions issued by this Deptt. earlier, necessary steps may kindly be taken immediately for restoring the seniority by carrying out suitable further amendment with retrospective effect wherever necessary.?
Accordingly, the seniority of the applicant was fixed vide order dated 21.09.1993 in the Junior Grade of IIS (Group-A) as follows:-
Sl.No. Name of 1989 batch officers of IIS œGr. œA?. Year of Examination 1. Shri Rajesh Malhotra1988 2. Shri Manish Desai 1988 3. Shri S. Venkatesewar 19884. Shri K. Syama Prasad 19885. Shri Bhupinder S. Kainthola 1988 6. Smt. Vasudha Gupta (Applicant) 1988 7. Shri K.P. Jayakar 1988 8. Shri N.D. Wakankar 1988 9. Smt. Bindu K.1988 10. Shri K. Vijaya Raju 1988 11. The applicant has no grievance against this fixation of seniority which was as per the order of merit decided by the respondent no.3. However, it appears that in 1991, the IIS (Group-A) Rules, 1987 were amended vide IIS (Group-A) (Amendment) Rules, 1991 wherein the aforementioned Note-III to Schedule IV was inadvertently omitted. In 1996 realizing this mistake the DOPandT vide OM dated 24.08.1996 reiterated the advice for insertion of such Note below the relevant Services Rules/columns in the Schedule to the recruitment rules. However, because of this inadvertent omission of Note-III to Schedule-IV admittedly some of the seniors came to suffer depressed seniority and became junior. This was remedied vide the IIS (Group-A) (Amendment) Rules, 2008 which vide the means of an Explanatory Memorandum inserted below Schedule-V provides as under:-
œThe Indian Information Service (Group œA?) Rules, 1987, were amended vide Indian Information Service (Group œA?) Amendment Rules, 1991 which were published in the Gazette of India, Part II, Section 3, Sub-section (i) on October 12, 1991. The guidelines for drafting recruitment rules issued by the Department of Personnel and Training, specify that it may so happen that in some cases of promotion, the senior officer would not have completed the required service whereas the junior would have completed the prescribed eligibility condition for promotion. In such cases, seniors will be left out from consideration for higher post. Therefore, to avoid such a situation suitable note may be inserted in the Recruitment Rules so that the seniors, who have completed the probation period, are also considered for promotion where the juniors who have, completed the requisite service are being considered. Such a note was notified as Note III below Schedule IV to the Indian Information Service (Group œA?) Rules, 1987. But while framing the Indian Information Service (Group œA?) Amendment Rules, 1991, this Note had been omitted inadvertently. Again the Department of Personnel and Training vide O.M. AB.14017/12/88-Estt.(RR) dated 25th March, 1996 reiterated the above advice for insertion of such note below the relevant service rules/column in the schedule to the Recruitment Rules. As a consequence of omission of said note seniors were left out from consideration for higher post. In order to restore to them their rightful place in the service with reference to their seniority and suitability for promotion to higher grade it will be justified to give retrospective effect to reintroduction of the note below Schedule-III with effect from 12th October, 1991, the date the Indian Information Service (Group œA?) Amendment Rules, 1991 had come into force. Further, the said provision in the revised format was to be introduced from the 25th March, 1996, the date from which the revised provision was circulated by the Department of Personnel and Training vide their Office Memorandum bearing the same date. It is certified that the retrospective effect given to Notes below Schedule0-III will not affect any Section or Class of Government Servants adversely.?
12. The claim of the applicant is that ignoring the amendment made vide IIS (Group-A) Amendment Rules, 2008 restoring the earlier provision with retrospective effect from the date of its omission on 12.12.1991 when the IIS (Group-A) Amendment Rules, 1991 had been notified directing restoration of officers who had suffered upheavals in their seniority on account of omission of this provision, a seniority list was published vide OM dated 09.11.2009 wherein the seniority of the applicant was shown qua the respondent no.2 as follows:-
Sl.No. in Draft List Name of officers Year of Examination 27. Shri E Marriappan (SC) 1989
28. Smt. Vasudha Gupta1988 Despite the fact that respondent no.2 belongs to 1990 batch, the respondents again published a revised seniority list on 09.05.2011, corrected up to 28.02.2010, which provides as under:-
Sl.No. in Final Seniority List Name of 1989 batch officers of IIS œGr. œA? Year of Examination 27 Shri E. Marriappan (SC) 1989 29. Shri Bhupinder S. Kainthola (Non party) 1988 31. Smt. Vasudha Gupta (Applicant) 1988 Admittedly, the applicant submitted representation dated 03.08.2012 objecting to the placement of respondent no.2 above her and for correction of her date of joining. In response to the same, the respondent no.1 intimated as under:-
œ2. In this context Ms. Vasudha Gupta is intimated that her representation has been considered in the Ministry by the competent authority in the light of amendment of IIS Group œA? Recruitment Rules, 2008 and various other instructions of DOPandT on the subject and it is informed that prior to 2008, the STS Post of IIS Group œA? was non-selection post and as per DOPandTs relevant guidelines, the reservation for SC/ST was applicable at that time. Since the reservation was applicable for promotion from Junior Grade of IIS Group œA? (JTS) to Senior Grade of IIS Group œA? (STS), Shri E. Mariappan (SC candidate) gained higher seniority position against Ms. Vasudha Gupta in the seniority list of officers in the Senior Grade of IIS Group œA?, issued on 09.05.2011, which has since been maintained in Junior Administrative Grade.
3. In view of the above, it is stated that the inter-se seniority of Ms. Vasudha Gupta shown in the draft seniority list dated 18.07.2012 of Junior Administrative Grade of IIS Group œA? has been rightfully fixed.?
13. Here we take a note of the averments made in para 10 of the counter affidavit that the merit list of CSE, 1988 by which the 1989 batch officers were recommended for appointment to JTS of IIS Group œA? UPSC, has not been disturbed by the respondents at any point of time and none of the juniors in the merit list of CSE-1988 and thereafter belonging to general category has been placed above her in the seniority list. The applicant in her rejoinder application has denied this position by stating that one N.D. Wakankar and K.P. Jayakar were first shown senior to the applicant but the position has since been corrected by review DPC. Be that it may, the position remains that an anomaly had occurred on account of omission of Note-III to Schedule-IV in the IIS (Group-A) Amendment Rules, 1991. We have already taken a note of the fact that the situation was remedied vide IIS (Group-A) Amendment Rules, 2008 which has directed for conducting review DPC to correct the anomalies which had occurred on account of this inadvertent omission of Note-III to Schedule-IV. Therefore, no grievance of the applicant survives except for that vis-`-vis the respondent no.2 which we take up in the succeeding issue.
14. We also take a note of the fact that the applicant has not prayed for any relief vis-`-vis any of her batch-mates. The first relief is related to quashing of the draft seniority list of Senior Grade issued on 18.07.2012 showing the respondent no.2 senior to the applicant. The second relief is for rectification/restoration of the seniority of the applicant and holding the DPC for promotion from JAG/NFSG level to SAG level. Hence, we proceed to take up the next issue which performs the actual bone of contention.
15. In so far as the issue no.2 is concerned, the respondent nos. 1 and 3 had submitted that the promotion of JTS officers of IIS (Group-A) to different grades viz. STS, JAG, SAG, Selection Grade and Higher Grade is done not according to the batch to which the officers belong but on the basis of availability of vacancies, seniority, completion of qualifying service, service records of the officers and also on the basis of various other instructions issued by the DOPandT from time to time regarding promotion including reservation of the vacancies for SC and ST candidates. The promotion to the next higher grade i.e. Senior Grade of IIS Group œA? (STS) is clearly dependent upon the number of vacancies in that Grade. The respondents further contend that the applicant could not be promoted to STS Grade along with other 1989 batch officers against the vacancies of 1993-94 and 1994-95 due to the limited number of vacancies available for general category candidates. The method for promotion for the years 1994-95 and 1995-96 to STS Grade was on the basis of seniority-cum-fitness. As per the DOPandT instructions, reservation for SC/ST candidates was applicable in promotions even in Group œA? service where the promotion was made on the basis of seniority subject to fitness. It was on account of this reservation that the respondent no.2, who is admittedly a 1990 batch SC category officer of Group A, was considered by the DPC and recommended for promotion for STS Grade against SC vacancies for the year 1994-95. The relevant provision on which the respondents have relied upon is as follows:-
œC. Promotions on the basis of seniority subject to fitness:
There will be reservation at 15 per cent for Scheduled Castes and 7= per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fitness, in appointments to all Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, does not exceed 75 per cent.
The procedure to be followed where promotions are made on the basis of seniority subject to fitness has been laid down in Paragraph 1B of Ministry of Home Affairs, O.M. No.1/9/58-R.P.S., dated the 16th May, 1959, which provides that in such cases a decision has to be taken on the suitability of each individual officer for such promotion although there is no need for a comparative evaluation of their respective merits and that decision on the fitness or the unfitness of an officer for promotion should be taken by the Departmental Promotion Committee instead of by an individual officer. While, therefore, referring proposals to the Departmental Promotion Committee for promotion on the basis of seniority subject to fitness in respect of vacancies expected to arise during a year, the following procedure may be followed to give effect to the decision mentioned in paragraph above:-
***
Wherever according to the points in the roster there are any vacancies reserved for Scheduled Castes and Scheduled Tribes, separate lists should be drawn up of the eligible Scheduled Castes or the Scheduled Tribes Officers, as the case may be, arranged in order to their inter se seniority in the main list.
The Scheduled Castes and Scheduled Tribes Officers should be adjudged by the Departmental Promotion Committee separately in regard to their fitness.
When the Select Lists of officers in the general category and those belonging to Scheduled Castes and Scheduled Tribes have been prepared by the Departmental Promotion Committee, these should be merged into a into a combined Select List in which the names of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, are arranged in the order of their inter se seniority in the original seniority list of the category or grade from which the promotion is being made. This combined select list should thereafter be followed for making promotions in vacancies as and when they arise during the year.
The select list thus prepared would normally be operative for a period of one year, but this period may be extended by six months to enable such of the officers included therein, as could not be appointed to the higher posts during the normal period of one year, to be appointed during the extended period.
(Not printed).
According to this, in the order dated 29.01.1997, while the respondent no.2 figures at serial no.27 the applicant does not figure at all. In her rejoinder application, the applicant has rebutted this claim of the respondents on the ground that the recruitment rules made under Article 309 of the Constitution clearly provide that no junior can be considered for further promotion when first considering his/her senior even there is any junior who belongs to the reserved category. She has further pointed out that two persons junior to her, namely, N.D. Wakankar and K.P. Jayakar were first shown senior to her and were also considered. Therefore, the stand of the respondents that the respondent no.2 was considered and appointed against a reserved vacancy is not quite correct and is derogatory of her fundamental rights. This also gives rise to the fact that the DPC had not been held in spirit of amendment. Another point which the learned counsel for the applicant had hammered repeatedly was that there is no other instance of such supersession taking place on account of operation of reservation.
16. The applicant has relied upon the decision of this Tribunal in the case of Alok Kumar and Others versus Union of India and Others (supra). In this extensive order, the Tribunal had gone into the second proviso to Rule 4 in depth. For the sake of clarity, it is imperative that the relevant part of the order be extracted as follows:-
œWe will take next point whether the right given to S.C./ST. candidates under Rule 4 have been taken away by the 2nd proviso to Rule 4. Those S.C./S.T. candidates who have not been succeeded in any C.S.E. nor allocated to any service can continue to appear in the C.S.E. so long as they are eligible to do so and that includes agewise also. Hence, there is no interference with that right of the S.C./S.T. candidates.
However, the position alters, once they are allocated or appointed to a particular Central Service, then they are on the same place as any other candidate. They are also subject to the same restrictions as any other candidate under the second proviso to Rule 4. In other words, a candidate who has come in Grou œA? Service will be eligible to appear again for I.A.S., I.F.S. and I.P.S. as provided in Rule 17. But those who have qualified for I.P.S. will be entitled to sit for I.A.S., I.F.S. and Central Services, Group œA?. One restriction has certainly come in and that is, if he has been appointed to a service, then there is a bigger restriction on him. Appointment to a service comes after the allocation is final. He has to join the service and take probationary training.
A question is: while going through all this, he sits in a subsequent C.S.E. and gets selected to another service and wishes to change his service. Should he be permitted to do so on the basis that Rule 4 of the C.S.E. Rules gives him 3 attempts to sit in C.S.E. The respondents stand is that the Central Government can impose restrictions in this regard as there is considerable uncertainty in filling up of vacancies, interruption with training, enormous wastage of funds, time and even loss in gaining experience. Besides the candidate also stands to loss seniority if he leaves one service and joins another service.
We are of the view that the provision of second proviso to Rule 4 is applicable in the case of S.C./S.T. candidates who have been allocated to a service or appointed to I.P.S. or to Central Services, Group œA? under the Union. We are of the view that there is no infringement in the rights of the S.C./S.T. candidates if after being allocated to a service they are treated in the same manner as any other generala candidates. Otherewise, it would be extremely difficult to fill up the existing vacancies meant for SC/ST candidates for in some cases, nothing would ever be final until a candidate completes the age of 31 years. Serious problems of seniority would arise. It would be wholly inequitable to give seniority to such a candidate from the first occasion when he was selected for a Central Service. It would mean holding a post in that service, vacant for him till he signifies his assent or completes the age of 31 years. It will also be inequitable in that case to give him seniority of the batch to which he was allocated although during this period, he may not have worked for a single day. Very many questions would be raised in each case and recruitment and selection to fill up the SC and ST quota will be left uncertain and unfilled.
We are of the view that giving a large number of chances to a SC/ST candidate until he succeeded in C.S.E. and allocated to that service is justified. But the moment he is allocated or appointed to I.P.S. or to a Central Service, Group œA?, he should be treated on the same lines as any other general candidate. That would not only be equitable but also fair. That would be in the interest of SC/ST candidates as well as in the interest of the administration as well as in national interest. We decide the point accordingly.?
17. It would be apparent from the above that this order has meticulously considered the issue as the one under current consideration in the instant case and have clearly opined that once having been selected, the SC/ST category candidates stand on the same footing as the other general candidates are amenable to the second proviso of the CSE Rules, 1986. Admittedly, this order was challenged right upto the Honble Supreme Court in the case of Mohan Kr. Singhania and Others versus Union of India and Others (supra) where in the concluding paragraph it has been held as under:-
œ12. We will give the judgment touching on the constitutionality of the second proviso to Rule 4 of CSE Rules later. We would once again like to state that the above directions are given only on the basis of the unchallenged conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi.?
Further, we also deem it appropriate to make a mention of the three decisions of the Honble Supreme Court touching reservation in a major way, the first of which is in the case of M. Nagaraj and Others versus Union of India and Others [2006 (8) SCC 212]. In this landmark judgment, the Honble Supreme Court has imposed certain pre-conditions while applying reservation. It is imperative to extract the same hereunder:-
œ117. The test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply "the width test". In applying "the width test" we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the concerned State has identified and valued the circumstances justifying it to make reservation. This question has to be decided case-wise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on facts of each case. The judgment in Indra Sawhney5 does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the concerned State will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/ STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.?
Another decision that attracts our attention is in the matter of Suraj Bhan Meena and Another versus State of Rajasthan and Others [2011 (1) SCC 467] wherein the Honble Supreme Court as a follow up to the decision in the case of M. Nagaraj and Others versus Union of India and Others (supra) went into the issue of a follow up exercise being done in respect of inadequacy of representation of the members of SC/ST and Backward Class subject to condition of ascertaining as to whether such reservation was at all required and held as under:-
œ64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution.
65. In effect, what has been decided in M. Nagaraj's case (supra) is part recognition of the views expressed in Virpal Singh Chauhan's case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.
66. The position after the decision in M. Nagaraj's case (supra) is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required.
67. The view of the High Court is based on the decision in M. Nagaraj's case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Scheduled Tribes communities and the same does not call for any interference.
68. Accordingly, the claim of Petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No.6385 of 2010 will be subject to the conditions laid down in M. Nagaraj's case (supra) and is disposed of accordingly. Consequently, Special Leave Petition (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed.?
18. In yet another recent decision in the matter of U.P. Power Corporation Limited versus Rajesh Kumar and Others and State of U.P. Versus Brij Bhushan Sharma and Another [ 2012 (7) SCC 1], the Honble Supreme Court has gone into similar issue of reservation. After having taken into consideration the case of M. Nagaraj and Others versus Union of India and Others (supra), the Honble Supreme Court has held as under:-
œ86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.
87. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj (supra). Any promotion that has been given on the dictum of Indra Sawhney (supra) and without the aid or assistance of Section 3(7) and Rule 8A shall remain undisturbed.
88. The appeals arising out of the final judgment of Division Bench at Allahabad are allowed and the impugned order is set aside. The appeals arising out of the judgment from the Division Bench at Lucknow is affirmed subject to the modification as stated hereinabove. In view of the aforesaid, all other appeals are disposed of. The parties shall bear their respective costs.?
19. Based upon these judgments, the concurrent Bench of this Tribunal in the matter of K.S. Panduranga Rao and Others versus Union of India and Others [OA No. 203/2013 and two other connected OAs commonly decided on 12.07.2013] has considered similar issue or reservation, though related to railway employees, and allowed the challenges arising to reservation in the aforementioned three OAs.
20. In view of the discussions above, we have no hesitation in holding that reservation in IIS (Group œA?) Service is not justified either on the basis of the determination in case of Alok Kumar and Others versus Union of India and Others (supra) and on the basis of the subsequent judgment of Honble Supreme Court as referred within. It is further to be noted that the applicant in her rejoinder application has also challenged the claim of the respondents regarding reservation on the ground that no other instance is available in service for such reservation. This issue has not been rebutted. Instead, the respondents have relied upon a decision of the Honble Supreme Court in the matter of Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.), through its General Secretary, K.S. Badlia and Others versus Union of India, through its Additional Secretary, Ministry of Finance (Deptt. Of Economic Affairs) Banking Division and Others [1990 Supp (1) SCC 350] which provides for reservation in selection grade in Group œA? Service. The same reads as under:-
œ18. We find force in this alternative submission made by Mr Sachar. Even though the promotional posts are based on selection method, the rule of reservation will apply to posts within Group 'A and the benefit of reservation policy to members of SC and ST cannot be denied on the ground that promotional posts are to be filled by method of selection. We find no .distinction in the case of employees in the officers group in JMGS I of the Bank from the officers falling in Group 'A under the Steel Authority of India Ltd., for the purpose of applying reservation policy. government of India committed a clear mistake in not applying the principle already decided in Bihar State Harijan Kalyan Parishad case to the employees of the Syndicate Bank and in not giving a clear direction in this regard to the management of Syndicate Bank. There can be no manner of doubt that the management of the Syndicate Bank was not at fault as they were bound by the instructions and policy laid down by the Banking Division of the Finance Ministry of the government of India and in the absence of a clear direction from the government of India, It was not possible for them to grant relief to the SC/ST employees of the Bank. As already mentioned above the Union of India had wrongly taken a contrary stand in its counter filed to the present petition, and clearly in derogation to the principle already decided in the case of Bihar State Harijan Kalyan Parishad by this court.
However, we hold that much water had flown down the Ganges since this judgment was delivered and it has been overtaken by the decisions in afore mentioned three cases. Thus, this issue is answered in favour of the applicant.
21. In totality of facts and circumstances of the case, we find merit in the instant Original Application and the same is allowed with the following directions:-
The impugned draft Seniority/Civil List of Senior Grade of IIS Group-A dated 18.07.2012 is quashed and set aside.
The respondent no.1 and 3 are directed to complete the process of rectifying/restoration of seniority of the applicant by placing her at the right and due place and then proceed to hold DPC/review DPC etc. at least from JAG/NFSG level to SAG level.
The exercise, as ordained above, be completed within a period of three months from the date of receipt of a certified copy of this order.
There shall be no order as to costs.