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2003 DIGILAW 20 (HP)

DHARAM PAL v. STATE OF H. P.

2003-02-07

NARINDER SINGH THAKUR, V.K.BHATNAGAR

body2003
JUDGMENT Honble Mr. V.K. Bhatnagar Member (Adm.).-The case of the applicant in this original application is that he belongs to reserved category of Sch. Caste and has been serving as Law Officer (Proof reading) since April 27, 1989. He after completion of three years regular service as a Law Officer in the pay scale of Rs. 7220-11600. That according to Recruitment & Promotion Rules the other category of Law Officer (Hindi) with three years regular service also fall in the feeder category and the promotion is to be made from the combined seniority list of eligible officers. There are only three posts Senior Law Officers. One post of Senior Law Officer earlier held by one Shgri Kishan Chand Verma who belonged to Sch. Tribe category, fell vacant on August 31,2000 onretirement of Shri Verma. The two other posts of Senior Law Officers are held by general category officers and as such the post now available on retirement of Shri Verma, should go to the applicant as he belongs to Sch. Caste category. The applicant made representation to respondent No. 1 to consider him for the said post but there is no response. This original application has been filed with the prayer that respondents maybe directed to fill up. the post of Senior Law Officer by promoting a Sch. Caste Officer. 2. During the pendency of this original application one Shri Jeet Singh who is also a Law Officer was impleaded as respondent No.2, on his request. Respondent No.2 has not filed a separate reply but has adopted the reply filed by respondent No. 1. 3. Respondent No.1 in his reply has opposed this original application mainly on the ground that the cadre strength of Senior Law Officers is only three and two posts are already filled up. The 3rd post has to be filled up in accordance with the 13 point roster and the applicant would also be considered in accordance with this roster, if he is found fit and falls under the instructions regarding the 13 point roster. The allegation that no officer from Sch. Caste category has been promoted to the post of Senior Law Officer during the last 10 years, has been denied. It has been submitted that one Shri Sita Ram Dhaleta was promoted to the post of Senior law Officer and he belonged to Sch. Caste category. The allegation that no officer from Sch. Caste category has been promoted to the post of Senior Law Officer during the last 10 years, has been denied. It has been submitted that one Shri Sita Ram Dhaleta was promoted to the post of Senior law Officer and he belonged to Sch. Caste category. After his appointment as Assistant Legislative Counsel in the Govt. of India on March 16, 1990 one Shri Kishan chand Verma belonging to sch. Tribe category was promoted as Senior Law Officer. It has been submitted that two officers belonging to such: Caste and other from Sch. Tribe, have been promoted to the post of Senior Law Officer in a small cadre of three officers. It has further been pleaded that original application may be dismissed being without merit 4. The applicant has filed a rejoinder and the only point worth consideration in this rejoinder is applicants plea that he does not dispute the validity or applicability of 13 point roster. However, his plea is that this roster cannot run contrary to the law laid down by the Honble Apex Curt in the case of R.K. Sabharwal versus State of Punjab and other judgments delivered by the Honble Apex Court. That respondent No.1 had issued letter dated August 20, 1998 (Annexure-R/11) according to which vacancy based roster can operate only till such time, the representation of persons belonging to the reserved categories, in a cadre, reaches the prescribed percentage of reservation. Thereafter the roster cannot operate and vacancies released by retirement, resignation, promotion etc. are to be filled by appointment from persons from the respective category from which a vacancy has arisen so as to maintain the prescribed percentage of reservation. On this ground it has been pleaded that the present vacancy having arisen on retirement of Shri K.C. Verma belonging to the scheduled tribe category, has to be filled up by promoting a sch. Tribe/sch. Caste officer and the applicant belonging to sch. Caste category, has a preferential right. 5. The learned counsel for the parties have been heard and pleadings have been gone into. 6. The learned counsel for the applicant has reiterated the arguments taken up in the original application and the rejoinder and has referred to Annexure-A/4 dated August 20, 1998 (same as Annexure-R11). Caste category, has a preferential right. 5. The learned counsel for the parties have been heard and pleadings have been gone into. 6. The learned counsel for the applicant has reiterated the arguments taken up in the original application and the rejoinder and has referred to Annexure-A/4 dated August 20, 1998 (same as Annexure-R11). Referring to paras 2, 6 and 10 of this letter, the learned counsel has argued that the vacancy of Senior Law Officer which has fallen vacant on the retirement of Shri K.C. Verma has to be filed up by promotion from the reserved category, particularly so because for the last 10 years no sch. Caste officer has been promoted to the post of Senior Law Officer. 7. The learned counsel for respondent No.2 has however, argued that instructions regarding 13 point roster have to be strictly enforced. It has been a argued that in the case of R.K. Sabharwal versus State of Punjab (1995) 2 SCC 1745 the matter before Honble Apex Court related to 100 point roster and not the 13 point roster. That after the judgment of Honble Apex Court, respondent No.1 had issued instructions contained in letter dated August 20, 1998 (Annexure-A), "with a view to bringing the policy of reservation in line with the law laid down by the Honble Apex Court and decided that the existing 40 point and 100 point rosters may be replaced". All the concerned authorities were directed to prepare fresh roster on the principle elaborated in the explanatory note of this letter. The learned counsel further argued that these explanatory instructions inter alia provide two fundamental principles- that the reservation for the entitled category is to be kept within the prescribed percentage of reservation and the total reservation should in no case exceed 50% of the cadre. These instructions also provide that separate roster has to be maintained for direct recruitment and promotion and the method for making a roster is to multiply each post by the prescribed percentage of reservation for different reserved categories and the point at which the multiple for a community obtains a complete number or oversteps the number, is to be reserved for that community. This roster is to be operated on t he principle of replacement and not as a running account as hitherto. This roster is to be operated on t he principle of replacement and not as a running account as hitherto. As regards small cadre upto 13 posts, the posts were required to be earmarked on the same pattern as in the model post based roster/That the comitial recruitment against these posts shall be by the category for which the post is earmarked. Replacement of the incumbent of the post shall be by rotation as shown horizontally (Annexure-D for promotion and Annexure-B for direct recruitment) to Annexure-A/2. It was reiterated that while operating the relevant roster, care has to be taken to ensure that on no occasion the percentage of reserved category candidate exceeds 50%. The learned counsel also referred to the instructions contained in explanatory note regarding initial operation of roster which read as follows:- “……..At the point of initial operation of the roster, it will be necessary to determine the actual representation of the incumbents belonging to different categories in a cadre vis-a-vis the points earmarked for each category viz. SC/ST/OBC and General in the roster. This may be done by plotting the appointments made against each point of roster starting with the earliest appointee in the cadre happens to be a candidate belonging to the Scheduled Castes, against point No.1 of the roster, the remark "utilized by SC" shall be entered. If the next appointee is a general category candidate, the remark "Utilized by general category" shall be made against point no. 2 and so on and so forth till all appointments are adjusted in the respective rosters. In making these adjustments, SC/ST/OBC category on merit, in direct recruitment, shall be treated as general category candidates………." 8. The learned counsel further argued that the applicant has not challenged the 13 point roster as in the rejoinder he has specifically mentioned that he was not disputing the validity or applicability of the 13 point roster. It was argued that since the applicability and validity of 13 point roster has not been challenged, respondent No.1 as per instructions already issued in Annexure-A/4 has to follow 13 point roster because the cadre of Senior Law Officers consists only of three posts, only 4th replacement point has to go to Sch. Caste candidate. It was argued that vacancy which has fallen due on the retirement of K.C. Verma, is not the 4th vacancy and as such has to able treated as unreserved. Caste candidate. It was argued that vacancy which has fallen due on the retirement of K.C. Verma, is not the 4th vacancy and as such has to able treated as unreserved. 9. The learned Addl. Advocate General ahs rebutted the averments of the applicant that for the last 10 years none o the sch. Caste candidate has been promoted to the post of Senior Law Officer. Inviting attention to the reply filed it has been argued that Shri Sita Ram Dhaleta was promoted as ALD later redesignated as Senior Law Officer and thereafter Shri K.C. Verma belonging to Sch. Tribe category has been promoted to the post of Senior Law Officer. Learned Addl. Advocate General also produced the record and argued that in this case 13 point roster has to be followed in terms of instructions issued on August 20, 1998 Annexure-A/4. The learned Addl. Advocate General has submitted that after issue of instructions contained in Annexure-A/4, 13 point roster was initially prepared with following details:- Roster point Whether R/UR Name Whether SC/ST 1. on 18.11.1989 UR Ramesh Chand Sharma Neither (expired 2. UR K.C. Verma ST Retd. On 31.8.2000 3. UR Rakesh Kumar Sharotri Neither 1st UR Km. Vandana Thakur Nether Replacement 10. The learned Addl. Advocate General further submitted that the first replacement was made against the post of Shri Ramesh Chand Sharma after his death and km. Vandana Thakur was promoted on replacement has to be made on the retirement of Shri K.C. Verma and according to the 13 point roster as per copy placed as Annexure-D to Annexure-R/11, the vacancy (second replacement) has to go to the unreserved category. Even the 3rdreplacement would go to unreserved category and that it is only the 4th replacement that has to be given to a Sch. Caste category officer. On the basis of this position the learned Addl. Advocate General argued that there is no merit in the original application which may be dismissed. It was also argued that instructions contained in Annexure-A/4 and Annexure-R/11 are valid and legal as these have been issued on the basis of judgment of the Honble Apex Court in the case of R.K. Sabharwal versus State of Punjab and also some other judgments with a view to bringing the policy of reservation in line with the law laid down by the Honble Supreme Court. In support of this argument the learned Addl. In support of this argument the learned Addl. Advocate General referred to explanatory note appended to these instructions, according to which, the method of making a roster is to multiply each post by the prescribed percentage for different reserved categories. The learned Addl. Advocate General agued that for Class 1 & 11 posts, in which category the post of Senior Law Officer falls, only 15% posts are reserved in promotion and direct recruitment or the sch. As the category and as such even in direct recruitment only the 7th post will go to the sch. Caste category. In the case of small cadre consisting of three officers (to which 13 point roster is applicable), all the three posts have to be initially filled in from unreserved category and only the 4th replacement goes to Sch. Caste which again means that 7th post is reserved for Sch. Caste category. Similarly according to 13 point roster meant for promotion the 4th replacement has to go to a scheduled caste category and as such no injustice has been caused to the applicant. 11. We have considered the arguments of the learned counsel for the parties and have also gone through the pleadings. 12. The applicant in his rejoinder has already submitted that he does not dispute the validity or applicability of 13 point roster. As such no verdict is required on the validity of 13 point roster according to which respondents propose to make promotion to the post of Senior Law Officer. The only objection of the applicant is that this roster cannot run contrary to the law laid down by the Honble Apex Court in the case of R.K. Sabharwal versus State of Punjab. That according to the instructions circulated on the basis of this judgment vide letter dated August 20, 1998 (Annexure-R/11) while considering promotion to the post of Senior Law Officer, vacated by officers to general and reserved categories, such posts are to be filled by promotion of persons from respective categories. In this regard the applicant has referred to the instructions contained in para 2 of the said letter-viz "thereafter, the roster cannot operate and vacancies released by retirement, resignation, promotion etc. of the persons belonging to the general and reserved categories are to be filled by appointment of persons from the respective category so as to maintain the prescribed percentage of reservation". 13. of the persons belonging to the general and reserved categories are to be filled by appointment of persons from the respective category so as to maintain the prescribed percentage of reservation". 13. The above argument is however, misplaced inasmuch as the judgment of the Honble Apex Court in the case of R.K. Sabharwal versus State of Punjab had been given with reference to 100 point and 40 point rosters which are maintained for a large number of posts. In a cadre of three posts it is not possible to give representation to all the reserved categories even in direct recruitment viz scheduled caste, scheduled tribe and other backward classes because 50% of the posts have to be filled in from unreserved categories. Therefore, the posts vacated by unreserved or reserved categories cannot always be filled in from the same category of officer who had vacated it. Hence, it seems that the judgment of the Honble Apex Court in the case of R.K. Sabharwal versus State of Punjab is not applicable in circumstances of the present case. 14. As mentioned earlier the applicant has not challenged the 13 point roster and it is not the grievance of the applicant that this roster is being wrongly applied by the respondent. In view of this discussion, the 13 point roster has to be followed by the respondents to make promotion to the post of Senior Law Officer. Hence, there is no merit in this original application and the same is disallowed. No order as to costs.