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Himachal Pradesh High Court · body

2004 DIGILAW 361 (HP)

RAJESH KUMAR v. STATE OF H. P.

2004-12-30

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGEMENT Mrs. Justice Bakhshish Kaur, Chairman.: Sh. Rajesh Kumar, applicant is aggrieved by the action of the respondents No.1 to 3 whereby the mandatory provisions of Article 14(4) (aO are being circumvented by the respondents No. 1 to 3 in not considering the case of the applicant for promotion to the post of Labour Officer and initiating the process to fill up the post of Labour Officer on adhoc basis by considering the case of respondent No.4, Sh.R.P. Rana from general category, though the post, reserved for Scheduled Caste. The facts which have bearing on the decision of the issues raised in this OA briefly stated are as follows: The applicant was appointed as Labour inspector on 30.9.1996 as per Annexure A-1. He belongs to Scheduled Caste category in short (SC). His appointment has also been made against the post reserved for SC. The seniority list annexure A-2 circulated by the respondents reflects the name of the applicant at Sr. No. 14 as it stood on 31.8.2001. From reliable sources the applicant came to know that the respondents No.1 to 3 are likely to promote respondent No.4 Sh. R.P. Rana to the post of Labour Officer from general category without considering the applicant against the roster point reserved for SC category. In not considering the genuine claim of the applicant for promotion, the action of the respondents is illegal, arbitrary and discriminatory, therefore, he has claimed following reliefs: "(1). That the respondents No.1 to 3 may be directed to consider the case of the applicant for promotion to the post of Labour Officer against the roster point for the category of Scheduled Caste and to grant him all the consequential benefits like seniority etc; (ii) That the respondents No.1 to 3 may be directed not to promote respondent No.4 to the post of Labour Officer from the general category in an illegal and arbitrary manner as the post, in question, has to go to the Schedule caste as per the roster maintained by the respondent department; (iii) That the respondents No.1 to 3 may be directed to produce the entire record pertaining to process initiated for filling up the post of Labour Officer by way of promotion from Labour Inspector including the Roster Register maintained by the respondent Department for the kind perusal of this Honble Tribunal." 2. The consistent stand taken by the respondents is that the applicant has no cause of action. They have not issued any order pertaining to the issue of the promotion of Labour officer. Presently there is no grievance of the applicant, therefore, question of redressal does not arise. It is further averred that whenever the post of Labour Officer will be filled up, all the eligible Labour inspectors will be considered for promotion, which is a gazetted post If the applicant is found eligible he will be considered for promotion and every care will be taken that no candidates of SC and ST will be ignored. 3. The respondent No.4, Sh. R.P. Rana has also raised preliminary objection that OA-19/87 was filed by Bhagat Ram Kaprate & others, who belonged to the general category. Some of them were from the cadre of Superintendent Grade-II of the H.P. Secretariat while others were working as Senior Assistants in the Secretariat The applicants in the said OA challenged the promotion of the candidates of Scheduled Tribe category, on the basis of quota reserved for them. Main issue in that case was interpretation of various instructions relating to the reservation of posts of the Scheduled Caste and Scheduled Tribe candidates. The OA was allowed by this Tribunal on 10.7.1987. Guru Lai Negi and others belonging for Scheduled Tribe category preferred SLP which was granted and registered as Civil Appeal No. 2615 of 1987 and it was disposed of in terms of judgment rendered in the case of Ajit Singh Januja & others vs. State of Punjab & Others. Keeping in view the judgment of R.K. Sabhrwal (1995) 2 SCC 745, Union of India vs. Virpal Singh Chauhan, (1995) 6 SCC 684 and Ajit Singh Januja, (1996) 2 SCC 715, instructions were issued by the State of Himachal Pradesh on 25.7.1996 (Annexure R-4/A), instructions on 27.5.1997 (Annexure R-4/2) and annexure R-4/3 dated 20.8.1998. The constitution bench of Ajit Singh-II (1999) 7 SCC 209 resolved the conflict between Ajit Singh-I and Jagdish Lai (1997) 6 SCC 538. Thus the substance and the instructions issued by the state is that reservation applies to the posts in a cadre and not to the vacancies. Roster operates only till all the roster points in the cadre are filled up and the quota prescribed by the instructions is achieved and not thereafter. Therefore, roster became applicable w.e.f. 12.12.1997. Thus the substance and the instructions issued by the state is that reservation applies to the posts in a cadre and not to the vacancies. Roster operates only till all the roster points in the cadre are filled up and the quota prescribed by the instructions is achieved and not thereafter. Therefore, roster became applicable w.e.f. 12.12.1997. Since the case of the applicant does not fall within the zone of consideration, therefore, he has no locus steandi. On merits also the respondent has raised several pleas. Respondents No.3 has adopted the reply filed by respondent No.2. 4. We have (sic-heard) Mrs. Trisha Sharma, learned counsel for the applicant and Sh. Chirag B. Singh learned Deputy Advocate General for the respondents No.1 and 2, Sh. D.K. Khanna, Advocate for respondent No.3 and Sh. Dilip Sharma, Advocate for respondent No.4. 5. Mrs. Trisha Sharma, learned counsel for the applicant contended that the applicant who belongs to S.C. category is eligible and qualified to be promoted to the post of Labour Officer as per the Rules and his name stands reflected in the seniority list prepared by the department in annexure A-2 at Sr. No. 14 as it stood as on 31.8.2001. The case of the applicant also stand on strength of the facts because there are only 5 posts of labour Officers and none of these posts is being occupied by the SC candidates reserved for Schedule Caste. 6. The second line of argument is that the stand taken by the respondents that R.K. Sandhu was promoted by way of promotion is not correct because his promotion was effected in the year 1981 against the general category and on that date the instructions issued in the year 1996. and 1998 were also not in existence. Similar is the situation with regard to T.R. Azad and Jai Singh Negi. The post in question is to be filled up by way of replacement from the same category. It is well settled that once a SC candidates has retired, the post, in question, is to be filled by way of replacement from the same category and once the roster has exhausted, in that eventually no fresh roster is required to be drawn and the principle of replacement is to be followed. In the present case the point reserved for SC and ST have never been exhausted. In the present case the point reserved for SC and ST have never been exhausted. Thus in not promoting the applicant in accordance with the Rules and the policy under which the Schedule Caste category is covered amounts to violation of natural justice as well as provisions as envisaged under Article 14 (4) (a) of the Constitution of India. 7. To meet the argument advanced by the learned counsel for the applicant Mr. Chirag B. Singh, learned Deputy General, assisted by Mr. D.K. Khanna, and Sh. Dilip Sharma, representing respondents No.3 and 4 respectively contended that reservation applies to the post in a cadre not to the vacancies. Roster operates only till all the roster points in the cadre are filled up and the quota prescribed by the instructions is achieved and not thereafter. Subsequent vacancies have to be filled from the categories to which the posts belonged to in the roster. In view of he judgment rendered by the Apex Court in R.K. Sabharwals case, (1995) 2 SCC 745, Union of India versus Virpal Singh Chauhan, (1995) 6 SCC 684 and Ajit Singh Januja (1996) 2 SCC 715, the State had issued instructions Annexure R-, 4/1, R-4/2 and R-4/3. The constitution bench of the Honble Supreme Court in Ajit Singh-II (1997) 7 SCC 209 has resolved the conflict between Ajit Singh-! and Jagdish Lai 1997) 6 SCC 238. 8. The thrust of the arguments of Mr. Dilip Sharma learned counsel for respondent No.4 is that reservation has to be kept within the percentage prescribed for a particular category in view of the decision rendered by the Apex Court as above. The share of SC and ST comes to 0.75 and 0.375 respectively in a cadre consisting of 5 posts. Thus to cope with such like situation, the respondent state j devised L roster having 13 points applicable to small cadres consisting of posts f between 2 to 13. Thus as per instructions the roster has to be operated vertically up to the number of points equal to the posts in cadre. The above roster has become applicable w.e.f. 12.12.1997. The position of roster which emerges in the cadre of I Labour Officer as on 12.12.1997 and thereafter, as mentioned in their reply is as under: that the above mentioned roster has become applicable w.e.f. 12.12.1997. The above roster has become applicable w.e.f. 12.12.1997. The position of roster which emerges in the cadre of I Labour Officer as on 12.12.1997 and thereafter, as mentioned in their reply is as under: that the above mentioned roster has become applicable w.e.f. 12.12.1997. The position of roster which emerges in the cadre of Labour Officers as on 12.12.1997 and thereafter, with reference to the dates of promotion as Labour I officer, further promotion as Deputy Labour Commissioner on retirement, is as follows: INTIAL RECRUITMENT 1. (UR)RS Sepahiya 28.1.88 2. (UR) O C Sood 4.10.96 (Retired on 31.12.97) 3. (UR) S K Kaushal 18.5.98 4. (UR) T R Azad 18.5.98 (SC/on seniority) 5. (UR) Gurdial Singh Chaudhary February 2000 (Retired on 31.8.02). (REPLACEMENT) 6. (UR) (1st replacement) 7. (SC) (2nd replacement) RK Sandhu 16.7.81) (Promoted DLC in June 99) 8. (UR) (3th replacement) 9. (UR) (4rd replacement) 10. (UR) (5th replacement) 11. (UR) (6th replacement) 12. (UR) (7th replacement) 13. (UR) (8th replacement)] 14. (ST) (9th replacement) Jain Singh Negi 28.1.88. " Thus the post of Labour Officer lying vacant fells at serial No.1. which is meant for un-reserved category. 9. From the position explained by the respondents and roster prepared by them, it is evidence that there are only 5 posts of Labour Officer and one post comes to the SC category which already stands filled up. Therefore, present post of Labour Officer is required to be filled up from general category. The model roster for promotion for cadre strength upto 13 posts is appendix to annexure D. placed by the respondents is as under: "APPENDIX TO ANNEXURE-D" Model Roster for promotion for cadre strength upto 13 posts. REPLACEMENT NO. NOTE:- 1. For cadres of 2 to 13 posts the roster is to be read from entry I under column cadre strength till the last post and then horizontally till the last entry in the horizontal row i.e. like "L". 2. All the posts of the cadre are to be earmarked for the categories shown under column initial appointment While initial filling up will be by the earmarked category, the replacement against any of the post in the cadre shall be by rotation as shown horizontally against the last post of the cadre. 3. The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% representation of reserved category." 10. 3. The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% representation of reserved category." 10. Assessing the case of the applicant from every possible angle we are of the view that there is no violation of the fundamental rights of the applicant as alleged. In fact out of 5 posts of Labour Officer one post comes to the Schedule Caste category which already stands filled up. Therefore, presently he is not entitled to the promotion as claimed, as he does not fall within the zone of consideration. In view of the aforesaid, the post which has fallen vacant is to be offered to the general category candidate being available at un-reserved point, therefore, the applicant is not entitled to the relief claimed at present. However, the respondents are directed to consider the case of the applicant for promotion to the post of Labour Officer as and when he is found eligible as per instructions/policy. Ordered accordingly.