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PETITIONER: P.SHESHADRI

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT09/03/1995

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) AGRAWAL, S.C. (J)

CITATION:  1995 SCC  (3) 552        JT 1995 (2)   661  1995 SCALE  (2)195

ACT:

HEADNOTE:

JUDGMENT: 1    Delay condoned. 2.   Leave granted.  Counsel for the parties are heard. 3.   In this appeal under Article 36 of the Constitution  of India  the  appellant  has  challenged  the  judgment  dated 31.7.1992  passed  by the Central  Administrative  Tribunal, Hyderabad Bench at Hyderabad (hereinafter referred to as the Tribunal) dismissing the application of the appellant  filed under  Section 19 of the Administrative Tribunals Act,  1985 against  the respondents herein seeking the relief  of  dec- laration  that the action of respondents No. 1 and 2 in  not promoting    the    applicant   to   the   post    of    Dy. Director/Executive Engineer alongwith other candidates by an order dated 28.2.1990 as arbitrary or illegal.  In the  said application  the  appellant also sought a direction  to  the respondents  to declare him as having been promoted  to  the post  of Dy.  Director/Executive Engineer with  effect  from 28.2.1990 with all consequential benefits. 4.   The  short  question that arises for  determination  by this  Court  in  this appeal is  whether  the  Tribunal  has correctly  interpreted the Office Memorandum No. 27/  2/71-E 4(SET)  dated 27.11.1972 in holding that  the,appellant  was not  entitled to be promoted as Dy.  Director/Executive  En- gineer    because of his placement in the approved     promotion panel. 5.   Admittedly  at  the  relevant time  the  appellant  was holding  the post of Assistant Director/Assistant  Executive Engineer, in Central Water Engineering (Group-A) and that he was fully eligible for being considered for promotion to the next higher grade of Dy.  Director/Executive Engineer.   The appellant’s  case  before the Tribunal was that  though  his name  was  considered  and  he  being  the  only   candidate belonging  to  the Scheduled Tribe community  his  name  was included  in the panel of selected candidates and placed  at serial No. 26 of the combined select list but by order dated 28.2.1990  only 22 persons were promoted and  the  appellant

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was not promoted because there were only 22 posts  available and therefore persons at Serial No. 1 to 22 in the  approved panel were promoted while according to the appellant when 22 663 persons  were promoted there should in any case be at  least one  point  belonging to the Scheduled  Tribe  candidate  in accordance  with  the  prescribed  roster.   The   appellant therefore,   approached  the  tribunal  for  the   necessary direction. 6.   The  respondents contested the appellant’s  application by  stating  that  78  vacancies  were  anticipated  up  ’to 31.12.1990  out  of  which 12 were  reserved  for  Scheduled Castes and 6 for the Scheduled Tribes against which only the appellant,  as the sole officer belonging to  the  Scheduled Caste  community  was found eligible,  by  the  Departmental Promotion  Committee  in its sitting held  on  3.8.1990  and 27.8.1990.  The respondents’ further stand was  that  having regard to the directions contained in Office Memorandum  No. 27/2/71 -E(SEI) dated 27.11.1972 issued by the Department of Personnel, they prepared separate select lists of candidates belonging  to the Scheduled Castes and Scheduled  Tribes  in addition  to the general list and all  the3separate  select’ lists  were merged into one combined list in which the  name of  all the selected officers including those  belonging  to Scheduled Castes and Scheduled Tribes ’were arranged in  the order  of  their inters seniority in the feeder  cadre  viz. Assistant Director/Assistant Executive Engineer in which the name of the appellant figured at S1.  No. 26.  It was stated by the respondents that the number of the vacancies as  were anticipated did not come through and they could promote only 22 officers and, therefore, the first 22 in the panel of the combined  list were promoted.  ’The appellant could  not  be promoted as his chance for promotion would come only accord- ing to his placement in the approved panel. 7.   The tribunal, after considering the  rival contentions, came  to the conclusion that having regard to the  promotion policy the promotions have to be made in accordance with the instructions  contained  in  the  Office  Memorandum   dated 27.11.1972.  It took the view that the combined select  list prepared in accordance with the instructions forms the basis for  promotion  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  interse seniority.  The tribunal also took  the  view that the rosters which have been prescribed for reservation, are  for determining the number of vacancies to be  reserved for  Scheduled Castes and Scheduled Tribes and that  the  40 point  roster  is not for determining the  order  of  actual appointment  or  for the purpose of  determining  seniority. After   analysing  the  instructions  contained  in   Office Memorandum dated 27.11.1972 the Tribunal took the view  that the respondents committed no illegality in making promotions of  22 persons by order dated 28.2.1990 and on  that  basis, rejected the application made by the appellant against which this appeal has been preferred. 8.   Learned  counsel  for the  appellant  vehemently  urged before  us,  that the impugned judgment of the  tribunal  is against  the  promotion  policy enunciated  by  the  Central Government  for the benefit of the members of the  Scheduled Castes  and  Scheduled Tribes as well as  against  the  very object and spirit of the Office Memorandum dated  27.11.1990 and other related Government instructions in this behalf  It was  submitted that though 78 vacancies were anticipated  up to  31.12.1990  yet  accepting  that  only  22  posts   were available  for  promotion  then also having  regard  to  the

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promotion policy and the percentage 664 of  reservation  allocated to the members of  the  Scheduled Tribes, the appellant could not have been ignored and in any event  one  post  out of the 22 posts must  have  been  made available  on  28.2.1990 when 22 promotions were  made.   It was,  therefore,  submitted that the impugned order  of  the tribunal could not be sustained either in law or on facts. 9.   It  may  be  pointed out  that  Office  Memorandum  No. 27.2.71 -E(SET) dated 27.11.1972 issued by the Department of Personnel, Government of India, relates to the  introduction of  promotion scheme to the members belonging  to  Scheduled Caste and Scheduled Tribe community.  A reading of the  said memoranda goes to show that prior to 17.11.1972 there was no reservation  for  Scheduled Castes and Scheduled  Tribes  in appointments  made  by promotion on the basis  of  seniority subject to fitness and it was only by O.M. dated  27.11.1972 that  the  Government  of  India  communicated  its   policy providing 15 per cent reservation for Scheduled Castes and 7 1/2  per cent reservation for Scheduled Tribes in  promotion to  all  classes  of posts/ service made  on  the  basis  of seniority  subject to fitness.  This policy was  adopted  by the  Government  of  India in supersession  of  its  earlier orders contained in Office Memoranda No. 1/1 2/67- ESTT  (C) dated 11.7.1968 according to which there was no  reservation for   Scheduled   Castes  and  Scheduled   Tribes   in   the appointments  made by promotion.  The Government,  therefore directed  appointing authorities to maintain a  separate  40 point  roster to determine the number of reserved  vacancies in  a  year  with a view to  implement  the.  aforementioned reservation  policy.   In  pursuance  of  the  said  policy, detailed   instructions  were  issued  to  the   authorities concerned   to  make  promotions  in  accordance  with   the directions  contained therein with a view that  the  members belonging  to the Scheduled Castes and Scheduled Tribes  may have the benefit of getting promotion to higher  grade/cadre earlier  than  the  employees  who did  not  belong  to  the Scheduled  Castes  and  Scheduled  Tribes.   Clause  (i)  of paragraph   3   of  O.M.  dated  27.11.1972   provides   for preparation  of a separate 40 point roster to determine  the number of reserved vacancies in a year which also prescribes the  points for reservation for Scheduled Castes and  Sched- uled  Tribes.  Clause (ii) provides that wherever  according to the points in the roster there are any vacancies reserved for  Scheduled  Castes and Scheduled Tribes,  separate  list should  be  drawn up of the eligible  Scheduled  Castes  and Scheduled  Tribes officers as the case may be,  arranged  in order  of their interse seniority in the main list.   Clause (iii ) contemplates that the Scheduled Castes and  Scheduled Tribes  officers  should  be adjudged  by  the  Departmental Promotion Committee separately in regard to the fitness  and clause (iv)    of paragraph 3 of O.M. dated 27.11.1972 reads as under:-               "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 combined select list in which the names               of  all the selected officers general as  well               as  those  belong  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

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             combined  select  list  should  thereafter  be               followed for making promotions in vacancies as               and when they, arise during the year.               10.Government   of   India,   Department    of               Personnel  & Training, Ministry of  Personnel,               Public  Grievances and Pensions  again  issued               O.M. No. F.22011/5/86-ESTT/ D dated  10.3.1989               providing  the  procedure to  be  observed  by               Departmental  Promotion Committee.   Paragraph               2.3.2  (ii) of the said O.M.  dated  10.3.1989               lays down the method of promotion by selection               and reads as under               "In  promotion by selection to  posts/services               from  Group ’C’ to Group ’B’ within Group  ’B’               and from Group ’B’ to the lowest run in  Group               ’A’, selection against vacancies reserved  for               SCs  and  STs  will be made  only  from  those               SCs/STs  officers, who are within  the  normal               zone  of  consideration  prescribed  vide  the               Department  of  Personnel  &  A.R.  O.M.   No.               22011/3/76-Estt.(D) dated 24th December, 1980.               Where  adequate number of  SCs/STs  candidates               are  not available within the normal field  of               choice,  it may be extended to five tunes  the               number of vacancies and the SCs/STs 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 SCs/STs-obetain on the  basis               of merit with due regard to seniority, on  the               same  basis as others, km number of  vacancies               than   the  number  reserved  for  them,   the               difference  should  be made  up  by  selecting               candidates of these commumucs, who are in  the               zone  of consideration, irrespective of  merit               and  ’bench mark’ but who arc  considered  fit               for  promotion.  Officers belonging  to  SC/ST               selected   for  promotion  against   vacancies               reserved  for  them from within  the  extended               Geld  of  choice should however be  placed  at               bloc  below  all the other  officers  selected               from within the normal field of choice. 11.A combined reading of the instructions contained in these memoranda will 665 go to show that in the first instance the number of reserved vacancies in a year have to be worked out on the basis of 40 point  roster as envisaged in sub-clause (i) of paragraph  3 of  O.M. dated 27.11.1972. Thereafter separate lists arc  to be  drawn up of the eligible Scheduled Castes  or  Scheduled Tribes  officers  arranged in the order of  their  inter  se seniority  in  the main list.  Clause (iii) of  paragraph  3 enjoins  a duty on the Departmental Promotion  Committee  to adjudge  the Scheduled Castes and Scheduled Tribes  officers separately  in  regard  to their  fitness.   Thereafter  the select  lists  of the officers in the general  category  and those belonging to the Scheduled Castes and Scheduled Tribes arc  prepared by the Departmental Promotion Committee.   The same have to be merged 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 arc arranged  in  the order of their inter se seniority  in  the original seniority list of the category/grade from which the promotion is being made and this combined select list is the basis  for making promotions in vacancies as and  when  they

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arise  during  the year.  Further clause (ii)  of  paragraph 2.3.2  of O.M. dated 10.3.1989 contemplates  that  selection against vacancies reserved for Schedule Castes and  Schedule Tribes will be made only from those Schedule Cast/  schedule Tribes   officers  who  arc  within  the  normal   zone   of consideration prescribed by the  Department of Personnel and A.R.  vide  O.M.  No.22011 dated 24th  December,  1980.   It further   contemplates  that  where  number   of   Scheduled Caste/Schedule Tribe candidates arc not available within the nominal  field of choice, it may be extended to  Five  Times the  number of vacancies and Schedule  Caste/Schedule  Tribe candidates (and not any other) coming; within the 666 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 bench mark 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 block below  all the other officers selected from within the normal field  of choice.   In view of the aforesaid clear  instructions  with regard to the reservation quota for the Scheduled Tribes  as 7-1/2  per cent, it is beyond comprehension to say that  not even  a single post will go to the member of  the  Scheduled Tribe out of the 22 posts which were available for promotion to  the  post  of Dy.  Director/Executive  Engineer  on  the relevant  date  i.e.  on  the date  when  22  officers  were promoted to that grade.  Any other interpretation  of..,’,he memoranda  referred  to above will not  only  frustrate  the scheme but it will render the reservation policy as nugatory and no effect to the reservation quota can be given. 12.  The tribunal seems to have been misled  by   the   last sentence contained in clause  (iv)  of paragraph 3  in  O.M. dated 27.11.1972 which reads as follows:-               "This combined select list should therefore be               followed for making promotions in vacancies as               and when they arise during the year." The  aforementioned sentence cannot be read form out of  the context in which it has been used.  The preceding clauses of the said memoranda clearly contemplate that there have to be separate select lists of officers in the general category as well  as  those  belonging  to  the  Scheduled  Castes   and Scheduled  Tribes having been prepared by  the  Departmental Promotion Committee and then all the three have to be merged to  form a combined select list.  It does not mean  that  in the  case of Scheduled Castes and Scheduled Tribes the  pro- motions  have  to  be  made  only  in  accordance  with  the placement  of  the  members  of  the  Scheduled  Caste   and Scheduled  Tribe in the combined select list.  They have  to be  picked up from the select list of officers belonging  to Scheduled  Castes  and  Scheduled  Tribes  prepared  by  the Departmental   Promotion   committee,   according   to   the availability  of  reserved vacancies and their turn  in  the said  lists.  This intention is also spelt out  from  clause (ii)  of  para 2.3.2 of O.M. dated 10th  March,  1989  which provides  that  promotion  by  selection  against  vacancies reserved  for  Scheduled Caste and Scheduled Tribe  will  be made  only  from  those  Scheduled  Caste/  Scheduled  Tribe officers who are within the normal zone of consideration.

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13.Having  regard  to  these  facts  and  circumstances  the appellant having been selected by the Departmental Promotion Committee  and he being the only eligible officer  belonging to  the Scheduled Tribe community should have been  promoted to the higher post/grade of Dy.  Director/Executive Engineer and the respondents committed a serious error and illegality in not  doing so.  Consequently, the appeal succeeds and  is hereby  allowed.  The impugned order of the tribunal is  set aside 667 and  the  application  of the  appellant  filed  before  the tribunal  is  allowed.  According to the  Counter  Affidavit filed in this Court by Shri A.K. Barua on behalf of the  re- spondents,   the   appellant  was  also  promoted   as   Dy. Director/Executive Engineer by order dated 7.9.1993 and  the appellant had joined as Deputy Director /Executive  Engineer on 22.9.1993. Since we find that the appellant was  entitled to be promoted on 28.2.1990, it is directed that he will  be deemed to have been promoted with effect from 28.1.1990 with all consequential benefits.  The respondents are directed to pay  a  sum  of Rs. 3000/- as costs of this  appeal  to  the appellant. 671