G. George Paracken, Member (J).
1. The grievance of the Applicant in this Original Application is that being a candidate belonging to SC category, the Respondents have not considered him for promotion to the post of Head Clerk (œHC? for short) against the slot earmarked for SC category candidates but counted those SC candidates who have been promoted against the unreserved post/general quota against the SC posts. He has, therefore, sought a declaration in this OA to the effect that the action of the Respondents in adjusting the SC candidates who have been promoted on the basis of seniority against the SC points is illegal and arbitrary. He has also sought a direction to the Respondents to consider him for promotion to the post of HC against the point reserved for SC with effect from the due date, i.e., 18.05.2008 with all consequential benefits including refixation of his pay with arrears of difference in pay and allowances.
2. The brief facts of this case are that the Applicant was initially appointed as a Clerk on 26.07.1990 and then as a Senior Clerk on 17.05.2006. The next promotional post for him was that of HC for which the eligibility condition is completion of 2 years service as Senior Clerk. He completed the said 2 years period on 17.05.2008. Even though the sanctioned posts of HCs as on the said date was 17 out of which 3 posts were reserved for SC candidates and one post out of which was lying vacant, he was not considered for promotion. He has, therefore, made an application dated 24.11.2009 under the Right to Information Act, 2005 seeking the details regarding availability of SC posts. The Respondents, vide their letter dated 07.05.2010 informed him that 3 posts of Head Clerk in the Ministerial cadre in SC category was in Commercial Branch and during the period from 2002 to 2007, two SC candidates were promoted against unreserved posts but they were adjusted against the SC points in the roster. On the basis of the aforesaid information, he made a representation dated 13.04.2010 followed by reminder dated 20.03.2012 requesting the Respondents to consider him for promotion to the post of HC reserved for SC category as per the roster point from due date. The Respondents, vide their letter dated 03.05.2012, informed him as under:-
1. As per 6th pay commission, posts of OS-II and Hd. Clerk have been merged in one grade, i.e., Rs.9300-34800 G.P. 4200/-. Accordingly merged roster have been prepared of both cadre 80% PQ and 20% LDCE quota. Roster has been prepared accordingly. There are 03 post reserved in roster of 80% PQ of SC and at present 03 SC employee are working against these points their date of promotion as under-
(a) Shri Ram Prakash 24.08.2006
(b) Shri Prem Kumar 2007
(c) Shri Kanta Prasad 01.09.2000
2. Smt. Krishna Dutt and Shri Pyare Lal were promoted as Hd. Clerk as UR candidate. At present their name has been placed against UR point in the merged roster of GP.4200/-.
The Applicant has stated that out of those three SC persons, Shri Ram Parkash was promoted against the unreserved post. Further according to the Applicant, the said Shri Ram Prakash was promoted as HC against an unreserved post but he but he was arbitrarily adjusted against reserved post. Thereafter, the SC point was actually lying vacant from 18.05.2008.
3. The contention of the learned counsel for the Applicant is that in accordance with the Circular dated 21.08.1997 issued by the Railway Board, the persons/candidates belonging to reserved categories who are appointed on the basis of their own merit and not on account of reservation are not to be counted and considered towards the quota meant for reserved vacancies. Again, the Railway Board, vide its letter dated 07.09.2002, clarified that œthe SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualification will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points?. He has also relied upon the latest Circular of Railway Board dated 01.09.2010 and its relevant part is as under:-
œ3. The instructions on the subject have since been received by the Nodal Department i.e. DOPandT in the light of CAT/Madras order in OA No.900/2005 (S.Kalugassalamoorthy vs. UOI and Others), upheld by Honble High Court/Madras (WP No.15926/2007). Based on the decision communicated by DOPandT in the matter, it is now clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders shall take effect from 21.08.1997, the date on which post based reservation was introduced on Railways. However, the staff already promoted prior to issue of this letter may not be reverted. Shortfall in the category of SCs/STs, if any, shall be made good through vacancies arising in future?.
4. In this regard, he has relied upon the order of this Tribunal dated 01.09.2006 in the case of Trilok Chand Verma Vs. Union of India and Others 2006 (3) ATC 247 wherein it has been held as under:-
œ25. On bestowing our careful consideration of the relevant rules on the subject and in the light of Apex Court decision in R.K. Sabharwal and Indra Sawhney (supra) we are of the considered opinion that the officials who passed according to the general standard and came within the normal zone of consideration are required to be adjusted against general post. The other SC/ST employees will be adjusted against reserved quota.
26. The next question arises for consideration whether the applicant who has passed the selection according to the general standard but lower in seniority can be promoted against one of the reserved post meant for SC. It is undeniable fact in the present case, the post of AEN is a selection post and the applicant qualified the said selection according to general standard. The respondents have adjusted all 08 SC candidates who passed the selection according to the general standard though they were sufficiently senior to be absorbed as general candidates but they have been adjusted against reserved posts. This has resulted in applicant's non-promotion though he has passed the selection according to the general standard. As we notice that many general candidates who were junior to the 08 SC candidates have been selected against general quota. Thus, the action of the respondents in adjusting the meritorious candidates against SC quota is wrong and contrary to the rules. These candidates are required to be adjusted against general seats only. The SC candidates, who passed the selection but are lower in seniority are required to be adjusted against reserved seat. In the case of District Registrar Palghat and Ors. v. M.B. Koyyakutty and Ors. 1979 SLJ 278 Hon'ble Apex Court held that High Court has power to give positive direction to promote the petitioner when all the criteria is fulfilled in the ends of justice. In this case, it is not disputed that the applicant has passed the selection as general candidate and he fulfilled all the criteria. We notice that in the list of passed candidates, applicant's name is at SI. No. 85 and the last SC candidate selected as SC candidate Shri Make Venkataraman appeared at SI. No. 68. Since general candidates are in the list between SI. Nos. 68 to 84, the applicant is now at the top of the SC candidates, who passed the selection, but not placed on the panel.
27. In view of the aforesaid discussion and analysis of the rule position as well as law declared by Hon'ble Apex Court on the subject, we are of the considered opinion that the applicant is entitled to be empaneled in the select list dated 10.9.2004 and required to be promoted against one of the reserved seats for SC. Thus, O.A. deserves to be allowed. It is accordingly allowed. Respondents are directed to promote the applicant by placing him on the panel dated 10.9.2004 as SC candidate against reserved quota with all consequential benefits without affecting the promotion already made. However, the question of seniority will be left open. The above decision shall be complied within a period of one month from the date of receipt of copy of the order. No order as to costs.
5. He has also relied upon the Co-ordinate Bench of this Tribunal in OA No.2624/2010 Ram Shanker and Others Vs. Union of India and Another decided on 24.12.2010 wherein the aforesaid judgment of Trilok Chand Verma (supra) and also the Railway Boards Circular dated 01.09.2010 have been considered. The relevant part of the said order reads as under:-
œ7. Admittedly, the Respondents, while drawing the panel of 132, have adjusted the SC candidates selected on merits on the basis of suitability with bench mark on the reserved SC points whereas they should have been taken against the unreserved points. To this extent, the Respondents have committed the error and illegality. As the panel has been prepared and operationalised, we do not intend to upset all those who have been promoted. As the persons likely to be affected by this order have not been impleaded as party Respondent, they have no opportunity to defend their case. In this peculiar circumstances, we direct the Respondents to draw up fresh panel of 132 candidates i.e. 99 candidates under UR category, 23 for SC and 10 ST candidates following the Railway Board latest circular dated 9.1.2010. This may be completed within a period of 3 months from the date of receipt of a copy of this order.
6. The Applicant has filed Miscellaneous Application No.2211/2012 in this OA seeking condonation of delay in filing the same. According to him, holding timely DPCs for promotion is the primary responsibility of the Respondents. On 17.5.2008, there was a vacancy earmarked for SC candidate. As the Respondents on their own have not considered him, he made a representation on 13.04.2010 but the Respondents have not considered the same. Instead, they have granted only 2nd MACP benefits, that too only with effect from 27.7.2010. As no reply was given to him on his representation dated 13.04.2010, he sought information under Right to Information Act, 2005 on 20.03.2012 and it was only on 03.05.2012 the Respondents have informed him that 3 posts reserved for 80% promotional quota for SC and 3 SC employees were already working and Smt. Krishan Dutta and Shri Pyare Lal were promoted against unreserved posts but they have been adjusted against the roster point of SC. He has also submitted that the cause of action in this case is a recurring one. He has also relied upon the judgment of the Apex Court in Dwarka Prasad Vs. Union of India and Others 2004 (1) ATJ 591 wherein it has been held that it is a fundamental right of an employee for being considered for promotion and non-consideration is illegal and violative of Articles 14 and 16 of the Constitution. He has also relied upon the judgment of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and Another JT 2010 (2) SC 389 wherein it has been observed as under:-
8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582.
7. Further, he has relied upon the judgment of the Apex Court in Improvement Trust, Ludhiana Vs. Ujjagar Singh and Others 2010 (6) SCALE 173 wherein the Apex Court has ruled that the attempt should always be made to allow the matter on merits rather than throw it on technicalities. It has also been emphasized that while considering the issue of condonation of delay each case has to be weighed from its facts and circumstances. He has also relied upon judgment of the Apex Court in Madras Port Trust Vs. Hymanshu International by its Proprietor V. Venkatadri (dead) by l.rs 1979 (4) SCC 176 wherein it has been held as under:-
œThe plea of limitation based on this section is one which the court always looks upon with disfavor and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable?.
8. The Respondents in their reply have raised a preliminary objection that this OA is not maintainable on the ground of limitation. In this regard, the learned counsel for the Respondent relied upon the judgment of the Apex Court in SLP (Civil) CC No.3709/2011 œD.C.S. Negi Vs. Union of India and Others decided on 07.03.2011. The relevant part of the said order reads as under:-
8. Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:
21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
9. In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant.
9. He has also relied upon the judgment of the co-ordinate bench of this Tribunal in OA No.1102/2012 - Devender Kumar Vs. The General Manager and Others decided on 03.04.2012 wherein it has been held as under:-
14. The law is well settled that one who comes to the court, after a long delay has to explain to the entire satisfaction of the court about the delay. In State of Karnakata Vs. S.M. Kotraya 1996 (7) SCALE 179 it was again held by Honble Supreme Court that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-Sections (1) and (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the tribunal should be required to satisfy itself whether the explanation offered was proper explanation as prescribed under Section 21 of the Administrative Tribunals Act, 1985. In view of above, it is duty of the court to see whether the delay has been properly explained by the person who is approaching the court after an inordinate delay. Accordingly, filing an application does not entitle the person to claim condonation of delay. Similarly in P.K. RAMACHANDRAN Vs. STATE OF KERALA AND ANOTHER reported in JT 1997 (8) SC 189 it has been held by Honble Supreme Court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay, therefore, cannot be sustained. Since no plausible ground is given by the applicant in the above MA, the same is rejected.
15. Since we have not condoned the delay, the OA is also dismissed being barred by limitation at the admission stage itself. No costs.
10. On merits, the Respondents have submitted that the representation dated 13.04.2010 alleged to have been submitted by the Applicant is not available in his personal file. Further, they have submitted that, vide their reply dated 03.05.2012, he was informed that as per the recommendations of the 6th Pay Commission, posts of OS-II and HC have been merged in a single grade of Rs.9300-34800 Grade Pay Rs.4200/- w.e.f. 01.01.2006 and accordingly, a merged roster have been prepared for both the cadres, i.e., 80% promotional quota and 20% LDCE quota. In the roster of 80% promotional quota, 3 posts were reserved for SC candidates and 3 SC candidates, namely, Shri Ram Prakash, Shri Prem Kumar and Shri Kanta Prasad were already working with effect from 24.08.2006, 2007 and 01.09.2000 respectively. Smt. Krishna Dutt and Shri Pyare Lal were promoted as HC as unreserved candidates. Now their names have been shown against the unreserved point in the merged roster in the grade of Rs.9300-34800 plus Grade Pay Rs.4200/-. Hence the vacant slots created by the above merger are no longer vacant now. In the revised cadre strength of 24 (17+7), 4 reserved slots fell vacant at points No.4, 12, 17 and 24 and against those points, the SC staff have been adjusted. However, one employee Shri Ram Prakash has since been promoted as Chief OS w.e.f. 06.11.2012 and the Applicant has been promoted in his place w.e.f. 03.06.2013. The Applicant has also been granted the 2nd MACP in the grade of Rs.9300-34800 plus Grade Pay of Rs.4200/- on 27.7.2010, which is the same as that of HC. Further, they have submitted that before the merger of the post of HC and OS-II, the last promotion to the post of HC in the grade of Rs.5000-8000 (Rs.9300-34800 + Grade Pay of Rs.4200) was initiated on 30.08.2006. At that time, the Applicant did not complete the required 2 years of regular service as he was promoted as Sr. Clerk on 17.05.2006. He completed the required 2 years of service only on 17.05.2008. They have also stated that for promotion to the next promotional post of HC was initiated on 16.5.2011 after the acceptance of the recommendations of the 6th Pay Commission and no process for promotion was initiated between 2008 to 2011. Therefore, there is no question of granting any promotion to the Applicant from 2008 as none of his juniors have been promoted.
11. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri R.L. Dhawan. Admittedly, the Applicant became entitled for promotion as HC on 17.05.2008. Prior to that date, all the three SC posts were occupied by three SC candidates, namely, Shri Kanta Prasad, Shri Ram Prakash and Shri Prem Kumar. Shri Ram Prakash and Shri Prem Kumar stood promoted to the post of OS-II with effect from 2006 and 2007 respectively. The Respondents themselves admitted that no effort has been made to fill up those posts from among the eligible SC candidates. Between 2008 to 2011, they have not initiated any action to make promotion to those posts. The contention of the Respondents is that the posts of OS-II and HC were merged with effect from 01.01.2006 consequent upon the implementation of the recommendations of the 6th Pay Commission and the roster of both the grades got merged from the same date. The said merger had taken place much later than 17.05.2008, i.e., only we.f. 03.09.2009. Therefore, there was no justification for the Respondents for not considering the Applicant for promotion under the SC quota during the period from 17.05.2008 to 03.09.2009. Granting benefits arising out of the MACP Scheme to the Applicant w.e.f. 27.07.2012 cannot be considered as a substitute for his promotion to the grade of HC from the due date. Even after the merger of the HC and OS-II with retrospective effect from 01.01.2006, the Respondents have only adjusted the present incumbent belonging to SC category against the slot reserved for SC candidate.
12. We also find there is no merit in the contention of the Respondents that this case is hit by limitation. The Applicant has been consistently requesting the Respondents to consider him for promotion against the SC vacancy which was already vacant before 18.05.2008. We also do not appreciate the submission of the Respondents that Applicant has been considered against the vacancy occurred due to the promotion of one Shri Ram Prakash who has been promoted as Chief OS w.e.f. 06.11.2012 and he has since been promoted as HC on 03.06.2013.
13. In the above facts and circumstances of the case, we allow this OA and direct the Respondents to consider the case of the Applicant in accordance with the rules for promotion to the post of Head Clerk after he became eligible for that post w.e.f. 17.05.2008. In case he is found suitable, he shall be given promotion from the due date with all consequential benefits except back wages on the principle of no work no pay. We also notice the fact that the Applicant has already been given the 2nd MACP benefits which are at par with the pay of Head Clerk w.e.f. 27.07.2010 and later on he was also promoted as HC w.e.f. 03.06.2013.
14. The aforesaid direction shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
15. There shall be no order as to costs.