Research › Search › Judgment

Andhra High Court · body

2000 DIGILAW 517 (AP)

Union of India v. S. K. Bikshapathi

2000-07-20

P.VENKATRAMA REDDY, S.R.NAYAK

body2000
S. R. NAYAK, J. ( 1 ) THIS writ petition, filed by the Union of india and its authorities, is directed against the judgment and order dated 22-10-1999 made in O. A. No. 978 of 1998 on the file of the Central Administrative Tribunal (CAT), hyderabad Bench, directing the petitioners herein to dereserve the post of Assistant electrical Engineer earmarked for the S. T. candidates, and promote the respondent who belongs to general category to that post if the respondent is next in turn for promotion to the de-reserved post of assistant Electrical Engineer, and to grant the pay scale attached to the post of assistant Electrical Engineer. ( 2 ) THE facts are few and simple. They are: For the purpose of filling up six promotional vacancies in the Group-B posts of Assistant Electrical Engineers in the pre- revised scale of Rs. 2,000-3,500 (4 OC + 1 SC + 1 ST) through Limited Departmental competitive Examination (for short ldce ), a Notification No. P (GAZ)607/el/ ldce (8), dated 23-11-1993 was issued against the quota of 30% Group-C staff. The said notification stipulates that all Group-C staff of Electrical Department with 5 years regular service in the grade of rs. 1,400-2,300 are eligible to appear for the examination. The respondent who belongs to Group-C staff appeared for the said examination held on 8-10-1995 and was declared eligible for the viva-voce. On the basis of the performance in viva-voce, on 29-11-1995 a provisional list of selected candidates was published vide letter no. P (GAZ)EL/ldce (8), dated 11-12-1995 for filling of only 5 vacancies, i. e. , 4 OC + 1 sc and that the S. T. vacancy could not be filled due to non-availability of ST candidate. In the circumstance, the said vacancy in the post reserved to STs was carried forward and included as a vacancy in the next LDCE of 1997 notified on 20-1-1997 and further in the LDCE of 1998 notified on 10-7-1998 in conformity with the policy to carry forward the vacancy upto 3 recruitment years if eligible candidates belonging to reserved categories are not available to fill up the vacancy, and such vacancy would then fall to general category but only after 3 consecutive recruitment years. Independent of the inclusion of the reserved ST vacancy in the vacancies of ldce of 1997 and LDCE of 1998, the proposal to de-reserve the post in terms of department of Personnel OM No. 36011/ 25/7-ESTT (Set) dated 16-11-1979 and supplemented by OM No. 36011 /5/81-ESTT (Set) dated 7-4-1981 was considered vide letter No. 98-E (SCT)II/57/6, dated 8-1-1997 on the basis of recommendation made on 1-8-1996. Under the regulations governing de-reservation of any post meant for scs/sts, it is obligatory on the part of the ministry of Railways to refer the proposal of de-reservation to National Commission for SCs/sts, in terms of DOP and T s OM no. 3611/25/79 ESTT (SCT), dated 16-11-1979 before taking a final decision on the matter. The proposal of de-reservation of ST vacancy in 1993 was ultimately dropped in the absence of any concurrence from the National Commission for scs/sts. It appears that the respondent represented on 20-8-1997 after participating in the LDCE notified on 20-1-1997 to consider the case of de-reservation of ST vacancy notified on 23-11-1993 on the ground that he would have a chance for inclusion in the select list published on 11-12-1995 if the reserved vacancy in favour of STs is de-reserved and thrown open to general category candidates forgetting the fact that by the time he made the representation there was no scope for de-reservation in view of the fact that ST vacancy was already carried forward and again notified on 20-1-1997 and 10-7-1998. According to the department, the representation of the respondent dated 20-8-1997 was not on record, and therefore, they did not send any reply to the respondent. At that juncture, the respondent filed O. A. No. 616 of 1998 before the CAT seeking directions to the petitioners to consider his representation dated 20-8-1997. The said O. A. was disposed of on 21-5-1998 by the CAT with a direction to consider the representation of the respondent for de-reservation of ST vacancy notified on 23-11-1993 for the ldce. The respondent was also permitted to make comprehensive representation in that regard, and accordingly, the respondent submitted one more representation dated 2-6-1998. The petitioners considered the representations of the respondent and rejected the same by its order dated 2-7-1998. The respondent was also permitted to make comprehensive representation in that regard, and accordingly, the respondent submitted one more representation dated 2-6-1998. The petitioners considered the representations of the respondent and rejected the same by its order dated 2-7-1998. ( 3 ) THE respondent again filed O. A. No. 978 of 1998 assailing the validity of the order dated 2-7-1998 and sought directions for de-reservation of ST vacancy notified on 23-11-1993 and to include his name in the select list published on 11-12-1995 for promotion to the post of Assistant Electrical engineer as the 6th vacancy would become vacancy for other candidates after de-reservation. The petitioners filed a detailed counter opposing the application. It was pointed out in the counter that the proposal to de-reserve the ST vacancy of LDCE notified on 23-11-1993 was initiated on 1-8-1996 after publication of results of the said examination on 11-12-1995, while the vacancy is required to be carried forward to subsequent recruitment year. the proposal was referred to the Department of personnel on 8-1-1997 having regard to the instructions dated 16-11-1979 and 7-4-1981. The proposal was finally dropped vide letter No. 96-E (SET) 11/57/6, dated 19/22-6-1998 considering the fact that the vacancy has been notified for the LDCE 1997 vide notification dated 20-1-1997, and the ban imposed on de-reservation vide letter No. 95-E (SET)l/49 (5)/2 dated 21-8-1997. It was also contended in the counter that de-reservation is not a matter of right that can be enforced by any other category candidate, and it is a matter of discretion vested in the Railway Board to take a decision whether a particular post earmarked for reserved category should be de-reserved or not, that too, in consultation with the National Commission for SCs and sts In support of the above last contention, the petitioners placed reliance on the judgments of the Supreme Court in Post graduate Institute of Medical Education and research vs. K. L. Narasimhan and s. S. Sharma vs. Union of India. ( 4 ) HOWEVER, the CAT by its final order dated 22-10-1999 allowed the application and issued certain directions to which reference is already made in the beginning of the order. ( 4 ) HOWEVER, the CAT by its final order dated 22-10-1999 allowed the application and issued certain directions to which reference is already made in the beginning of the order. ( 5 ) SRI R. S. Murthy, learned Standing counsel for Railways, would assail the order of the CAT mainly on the ground that the Tribunal should not have issued mandamus to the Railways to de-reserve a post earmarked for SC or ST, and that no candidate belonging to other categories can claim de-reservation of a post meant for SC or ST as a matter of right. The learned standing Counsel would also maintain that without approval or concurrence of the national Commission for SC/st no post reserved for SC or ST could be de-reserved and in the instant case, the Commission did not accord its concurrence to de-reserve the post. The learned Standing Counsel would also point out that by the time the respondent made the representation on 20-8-1997, the post was carried forward and the same was notified on 20-1-1997 and 10-7-1998, and that in the LDCEs conducted for the years 1997 and 1998, the respondent did not qualify himself for promotion to the post of Assistant Electrical Engineer, and therefore, there was no scope for consideration of his candidature for appointment to the promotional post of assistant Electrical Engineer. ( 6 ) ON the other hand, Sri G. Rama-chandra rao, learned Counsel for the respondent would support the judgment and order of the CAT impugned in this writ petition. ( 7 ) BEFORE adverting to the contentions of the learned Counsel for the parties, it is appropriate to know what weighed with the CAT to pass the impugned order. The following is the main reason given by the cat to grant the relief to the respondent: "from the analysis of the case, it is evident that the Railway Board though sent proposal recommending the case for de-reservation of the reserved ST post of the Assistant Electrical engineer in the selection which was held in pursuance of the notification dated 23-11-1993, the reply from the national Commission for SCs and STs was received one year and four months later. It appears, no follow up action was taken by the Railway Board to get the reply in accordance with oop and AR OM dated 7-4-81. It appears, no follow up action was taken by the Railway Board to get the reply in accordance with oop and AR OM dated 7-4-81. As per the OM dated 7-4-81, it is very clear that "the Ministry/department concerned should wait for a period of at least two weeks after sending the proforma to the Department of personnel and the Commission for scs/sts for comments if any before reserved vacancies are de-reserved by them, under the delegated authority. The relevant portion of that O. M. is reproduced below:"the undersigned is directed to draw attention to Department of personnel s O. M. No. 36011/25/7 9- Estt. (SCT) dated 16-11-1979 regarding delegated powers of de- , reservation to Ministers/ departments in cases of promotion and to say that the copy of the proposal in the prescribed proforma should be sent to the department of Personnel and the commissioner for Scheduled caste/scheduled Tribe by the administrative Ministry/ department concerned, and not by any attached and subordinate offices. It is further stated that the ministry/department concerned should wait for a period of at least two weeks after sending the proforma to the Department of personnel and the Commissioner for SC/st, for the comments, if any before the reserved vacancies are de-reserved by them, under the delegated authority. "from the above O. M. it is very evident that the Department is at liberty to decide in regard to de-reservation of the SC/st post, if no reply is received from the Commissioner for SCs and sts within 2 weeks from the date of issue of the proposal for de-reservation. In this case, the Railway board did not receive any reply within two weeks and reply was received only after one year and four months. It is not understood why the Railway board did not follow up the recommendation sent to the National commission for SCs and STs, when no reply is received within two weeks. Even otherwise, the Railway Board is at liberty to decide the question of de-reservation in case no reply is received from the National Commission for SCs: and STs, within two weeks. " ( 8 ) IN our considered opinion, the above reason given by the CAT to allow the O. A. is totally perverse and de hors the law governing de-reservation of the posts reserved in favour of the protected categories of employees. " ( 8 ) IN our considered opinion, the above reason given by the CAT to allow the O. A. is totally perverse and de hors the law governing de-reservation of the posts reserved in favour of the protected categories of employees. Now, it is well settled principle of law that no vacancy can be filled by a person belonging to other categories before it is de-reserved, and that power of de-reservation available to government or Governmental authorities or Statutory authorities is always discretionary. ( 9 ) THE Supreme Court in the case of sharma s case (supra) has laid down whether reserved vacancy can be de-reserved or not is a matter falling primarily within the administrative discretion of the concerned department, and that there is no right in any candidate to seek appointment to the post after de-reservation of the post to fill up the existing vacancy. Further, in the case of State of Punjab vs. G. S. GUP the supreme Court dealing with the question of de-reservation was pleased to observe as under: "whether or not vacancies should be de-reserved is a matter falling primarily within the administrative discretion of the Government. There is no right in general candidates to seek filling up of the vacancies belonging to the reserved category and to insist on de-reservation of reserved vacancies so long as it is possible in law to fill up the reserved vacancies carried forward (unfilled) vacancies reserved for SCs and STs should be filled up only by the reserved candidates and general candidates have no right to seek direction for de-reservation thereof for filling up of the same by general candidates. In the instant case, government issued orders to carry forward for two years. The direction of mandamus could be issued to disobey the law or prohibit the authorities from discharging the functions. It would be therefore, manifestly illegal to seek a mandamus or direction; nor would the Court be justified to issue mandamus or direction to the appropriate Government to de-reserve vacancy. The direction of mandamus could be issued to disobey the law or prohibit the authorities from discharging the functions. It would be therefore, manifestly illegal to seek a mandamus or direction; nor would the Court be justified to issue mandamus or direction to the appropriate Government to de-reserve vacancy. " ( 10 ) THE Supreme Court in the case of post Graduate Institute of Medical Education (supra) dealing with the question whether it is competent for the Court to issue direction to de-reserve and throw open the vacancies in the reserved posts to the general category candidates by issuing Writ of Mandamus observed thus:"it is common knowledge that the selections are not objectively being made to select the candidates belonging to the Dalits and Tribes to fill up the vacancies reserved for them though the qualified candidates are available to be promoted/appointed, with a view to see that reserved vacancies are not filled up and the same are passed off as eligible candidates being not available, so as to ensure that carry forward vacancies, either exceed 50% of the accumulated total vacancies or that selection goes beyond three years, so as to make the government de-reserve the vacancies. It would, therefore, be clear that the authorities should implement the executive/legislative/constitutional policy or principle in their true spirit, honestly and sincerely to effectuate the policy; no mandamus or direction should be issued to de-reserve the carry forward vacancies reserved for appointment of the Dalits and Tribes nor should direction be given to fill up the reserved posts with general candidates. "from the above judgments of the Supreme court, the following principles governing de-reservation of the reserved posts in favour of the protected categories of employees are discernible: (1) Whether a reserved post can be de-reserved or not is left to the discretion of the concerned department or authority, and no one has any vested right to claim that an unfilled vacancy in a reserved post should be filled up by a general category candidate after de-reservation of the post. (2) No Court or Tribunal can issuemandamus or direction to a public recruiting agency to fill up vacancies in the post reserved for scs/sts/obcs by the candidates belonging to other categories by de-reservation of the posts. (3) No de-reservation of a post earmarked for SC/st/obs can be done without the prior concurrence or approval of the National commission for SCs/sts. (2) No Court or Tribunal can issuemandamus or direction to a public recruiting agency to fill up vacancies in the post reserved for scs/sts/obcs by the candidates belonging to other categories by de-reservation of the posts. (3) No de-reservation of a post earmarked for SC/st/obs can be done without the prior concurrence or approval of the National commission for SCs/sts. If these three principles are kept in mind while reviewing the impugned order of the cat, it should be held that the impugned order suffers from an error apparent on its face. The impugned order violates all the three principles governing de-reservation of posts earmarked for SC/sts. A careful reading of the impugned order of the CAT indicates that the CAT seems to have laboured under an impression that since there was a vacancy in the post of Assistant electrical Engineer earmarked for STs, the petitioner could seek de-reservation of that post and further seek his appointment to that post as a matter of right. Mere existence of a vacancy in the reserved post would not vest any right in any general category candidate to seek de-reservation of the post and appointment to that post, as a matter of right, and it is always permissible for the concerned department or authority not to de-reserve the post and to carry forward that post to the subsequent recruitments in their discretion. Secondly, it is relevant to note that the concerned department or the authority is not the sole authority to decide whether a particular post should be de-reserved or not, and its decision, in order to be legal and valid, should have the prior concurrence or approval from the National commission for SCs and STs. In the instant case, admittedly, the National Commission for SCs and STs did not concur with the proposal sent up by the department. On that count itself, the CAT should have dismissed the application. The reason given by the CAT that since the Railway Board did not receive any reply within two weeks from the National Commission for SCs and sts after it sent up the proposal for de-reservation, it ought to have decided the question of de-reservation and should have adhered to the initial recommendation made by it to de-reserve the post, in our considered opinion, is not germane to the decision making. Even assuming that there is no satisfactory explanation on the part of the Railway Board to explain the delay of one year and four months that intervened between the date of submission of the proposal and the receipt of the communication from the National commission for SCs and STs that circumstance itself would not justify the cat issuing directions to the department to adhere to its earlier decision of de-reservation of the post and to appoint the respondent to that post if the respondent is next in turn for promotion. The administrative discretion vested in the railway Board cannot be usurped by the tribunal or the Court, and that discretion cannot be converted into a kind of duty by issuing mandatory directions. ( 11 ) THE Railway Board in its letter dated 19/22-6-1998 pointed out that the policy of de-reservation of the reserved post has been banned vide paragraph (9) of the Railway board s letter No. 95-E (SCT)I/49/5 (2)dated 21-8-1997. There is a controversy between the parties, wiher the ban imposed on de-reservation under the Board s letter No. 95-E (SCT)I/49/5 (2), dated 21-8-1997 applies to the promotional post of Assistant Electrical engineer or not. According to the department, it applies, whereas according to the respondent the ban contained in paragraph (9) of the Railway Board s letter dated 21-8-1997 is applicable only to Grade-C and Grade-D services and not to the post of Assistant Electrical Engineer, The respondent is presently in Grade-C service and he is seeking promotion to the post of assistant Electrical Engineer, which post falls under Grade-B service. The subject of the letter of the Railway Board dated 21-8-1997 reads as under:"sub: Reservation rosters - post based - Grade c and d posts of promotion category - Implementation of the supreme Court s judgment of r. K. Sabharwal vs. State of Punjab ( AIR 1995 SC 1371 ), Union of India vs. Virpal singh Chauhan (AIR 1996 SC 442) and union of India vs. J. C. Malik"though if one goes by the subject mentioned in the letter strictly and literally, it is possible to contend that the ban contained in paragraph (9) of the Board s letter would not apply to Grade-B services, it cannot be forgotten that the subject also refers to the judgments of the Supreme court in R. K. Sabharwal vs. State of Punjab and in Union of India vs. Virpal Singh chauhan wherein the Supreme Court has held that the reservation of jobs for backward Classes SC/st/obcs should apply to the posts and not to the vacancies, and that the vacancy based roster can operate only till such time as the representation of the persons belonging to the reserved categories in a cadre, reaches the prescribed percentage of reservation. It is trite to state that what prompted the railway Board to issue the letter dated 21-8-1997 was the above decision of the supreme Court. Looking from that angle prima facie, it may not be appropriate to conclude that the ban imposed on de-reservation in paragraph (9) of the letter would apply only to Grade-C and Grade-D promotional posts and not to other posts. Be that as it may, there is no need for us to dilate further on this controversy between the parties. Looking from that angle prima facie, it may not be appropriate to conclude that the ban imposed on de-reservation in paragraph (9) of the letter would apply only to Grade-C and Grade-D promotional posts and not to other posts. Be that as it may, there is no need for us to dilate further on this controversy between the parties. Even assuming that the ban imposed in paragraph (9) of the Railways board s letter dated 21-8-1997 is not applicable to the promotional post of assistant Electrical Engineer based on ldce, even then, the respondent cannot seek Mandamus or direction to the Railway authorities to de-reserve one post of assistant Electrical Engineer reserved for st and appoint him to that post in the unfilled vacancy as a matter of his right for the reasons already stated by us supra, As pointed out supra, by issuing Mandamus or direction as prayed for by the respondent, the Tribunal or the Court cannot reduce the discretion vested in the department into a kind of mandatory duty, and such a course of action is impermissible in law. It is too preliminary to state that no Writ of mandamus shall go to an authority unless the Court finds that the concerned authority is under a public law obligation to perform a particular duty in a particular way or manner and in favour of the applicant for the writ who has an established right to seek such performance. ( 12 ) ON facts also the respondent is not entitled to be considered for the post. It is a matter of record that the respondent failed to qualify himself in the LDCE of 1997 and ldce of 1998. It was contended on behalf of the Railways before the CAT that since the respondent failed to qualify in LDCEs conducted during the year 1997 and 1998, he is not entitled to the relief. The CAT rejected this contention by observing thus:"this is a very invalid argument. The conditions keep on changing. If an employee fails in the later examination, it does not mean that he loses his right for consideration for appointment if he had succeeded in the earlier examination. This contention, in our opinion, is meant only to give some flimsy reason to sustain their case. This contention is rejected outright. The conditions keep on changing. If an employee fails in the later examination, it does not mean that he loses his right for consideration for appointment if he had succeeded in the earlier examination. This contention, in our opinion, is meant only to give some flimsy reason to sustain their case. This contention is rejected outright. "the reason given by the CAT to reject the contention, in our considered opinion, is perverse and ex facie erroneous. The CAT seems to have thought that since during the year 1995 when LDCE was conducted, the respondent had acquired an absolute right to be considered and appointed to the post of Assistant Electrical Engineer earmarked for STs after de-reservation, and therefore, such a right could be enforced against the railways irrespective of the fact that the respondent did not qualify himself to be considered for promotion in the LDCEs conducted during the years 1997 and 1998. Historical truth is that failures lead, or, are steps-in-aid, to success, and vice-versa is not the truth. If the CAT thinks that the vice-versa is the truth, we can only bemoan and say that its opinion is retrograde, and logic and experience do not support its opinion. It is relevant to note that the respondent s name was not included in the select list prepared after conducting LDCE on 8-10-1995 and, therefore, his claim for appointment to the post of Assistant electrical Engineer after de-reservation of the post earmarked for STs was a contingent claim, and that situation was drastically changed to the peril of the respondent in the subsequent LDCEs conducted in the years 1997 and 1998 for he did not qualify himself for consideration to the post. At no point of time the respondent had acquired even a mere right to be considered for appointment to the post of assistant Electrical Engineer reserved for sts. In that view of the matter, issuance of mandamus to the Railways to consider the case of the respondent would not arise. The time-gap between the date of proposal to de-reserve the post and the date of receipt of the communication from the National commission for SCs and STs, impliedly rejecting the proposal, is set up against the railways to grant the relief to the respondent. The time-gap between the date of proposal to de-reserve the post and the date of receipt of the communication from the National commission for SCs and STs, impliedly rejecting the proposal, is set up against the railways to grant the relief to the respondent. The CAT has held that the ministry of Railways was solely responsible for the delay and did not pursue the matter with promptitude and diligence. It is a quite strange reasoning to grant the relief to the respondent. The administrative instructions contained in the Department of Personnel s o. M. No. 36011/225/79-Estt. (SCT) dated 16-11-1979 enable the department to decide in tegard to de-reservation of the post earmarked for SC/st, if no reply is received from the Commissioner for SCs and STs within two weeks from the date of submission of the proposal for de-reservation. It is pertinent to note that from the above provision contained in the department of Personnel s O. M. No. 36011/ 25/79-Estt. (SCT) dated 6-11-1979 enabling the department to decide in regard to de-reservation, it cannot be said that the department is legally obliged to de-reserve the post if it does not receive reply from the commissioner for SCs and STs within two weeks from the date of submission of the proposal. The above guideline only grants liberty, nay discretion, to the concerned department to take a decision whether a particular post should be de-reserved or not if no reply is received from the commissioner of SCs and STs within a period of two weeks from the date of submission of the proposal for de- reservation. If, in a given case, no reply is received from the Commissioner of SCs and sts within the stipulated time, it cannot be said that the concerned department should de-reserve the post nor can it be said that the applicant who seeks appointment to the post after de-reservation acquires a right to be considered and appointed to the post. ( 13 ) BEFORE parting with this case, we think it appropriate and duty-bound to remind the Tribunals of the mandate of article 141 that the law declared by the supreme Court shall be binding on all courts within the territory of India. ( 13 ) BEFORE parting with this case, we think it appropriate and duty-bound to remind the Tribunals of the mandate of article 141 that the law declared by the supreme Court shall be binding on all courts within the territory of India. All courts in India are bound to follow the decisions of the Supreme Court though they are contrary to decisions of any other Court including that of the House of Lords (per decision in IT. Commissioner vs. Shrinibbai) or of the Privy Council (per decision of the supreme Court in Dwarakadas vs. Sholapur spinning Company ). In the course of adjudication/arguments before the CAT, the judgments of the Supreme Court in the case of Post Graduate Institute of Medical education (supra) and in the case of s. S. Sharma (supra) were pressed into service by the Railway in support of their defence. In fact, the CAT in its order impugned in this Writ Petition refers to those decisions in paragraphs 3, 7, 10 and 11. But, the CAT failed to consider those judgments of the Supreme Court to see whether there is any ratio decidendi or obiter dicta which would bind it in the decision-making. Now, we have found that the above decisions of the Supreme Court are having direct bearing on the decision- making in this case. This approach on the part of the Tribunal tantamounts to overlooking the mandate of Article 141 of the Constitution and the doctrine of stare decisis. ( 14 ) IN the result and for the foregoing reasons, we cannot sustain the impugned order of the CAT. A case is made out for interference. Accordingly, we allow the writ petition and quash the impugned order dated 22-10-1999 in O. A. No. 978 of 1998 on the file of the CAT, Hyderabad Bench, hyderabad, with no order as to costs. However, we make it clear that this order shall not preclude the respondent seeking appointment to the promotional post of assistant Electrical Engineer based on ldce in future if there is any change of policy on the subject of de-reservation of the post earmarked for SCs/sts, and if the respondent qualifies himself to be considered in the future LDCEs that may be conducted by the Railways.