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2010 DIGILAW 819 (GAU)

Rafique Uddin Bharbhuiya v. Union of India

2010-10-22

MADAN B.LOKUR, TINLIANTHANG VAIPHEI

body2010
JUDGMENT T. Vaiphei, J. 1. The Petitioner, aggrieved by the promotion of the Respondent No. 5, who is his junior to him in the post of Store Clerk under the Respondent authorities, to the post of Assistant Store Keeper (Technical), had approached the Central Administrative Tribunal, Guwahati (CAT), for directing the Respondent authorities (a) to give effect to his promotion to the post of Assistant Store Keeper (Tech) ["ASK(T)] from the date on which the Respondent was promoted instead of 12-1-2005, (b) to re-fix his seniority in the cadre of ASK(T) so as to place him above the Respondent No. 5 in the seniority list of ASK(T) and (c) to consider him for his further promotion to the higher post of Store Keeper (Tech) at par with the Respondent No. 5 on the basis of the seniority list so revised. 2. The case of the Petitioner is that he was appointed to the post of Store Clerk on the recommendation of the Staff Selection Commission. In the seniority list of Store Clerk published on 31-12-1997, his name appeared at Serial No. 2 while the name of the Respondent No. 5 found a place at Serial No. 3 and that he continued to maintain his seniority vis-a-vis the Respondent No. 5 even after the promotion of the Store Clerk at Serial No. 1 to the post of ASK(T). According to the Petitioner, the next higher post of ASK(T) is to be filled up from amongst Store Clerks on the basis of seniority. In the year 2003, following the promotion of the incumbent, one post of ASK(T) fell vacant against which the Respondent No. 5 was promoted with effect from 1-11-2003 by overlooking his case though he is senior to him in the grade of Store Clerk. On the repeated representations made by him to the Respondent authorities, a meeting of the DPC was eventually held on 8-12-2004 resulting in his promotion to the post of ASK(T) with effect from 12-1-2005. On 14-6-2006, the Respondent authorities published the seniority list of ASK(T) as on 31-12-2005 wherefrom the Petitioner is alleged to have found that he had been made junior to the Respondent No. 5 in the cadre of ASK(T): his name found a place at Sl. No. 2 while the name of the Respondent No. 5 appeared at Sl. No. 1. On 14-6-2006, the Respondent authorities published the seniority list of ASK(T) as on 31-12-2005 wherefrom the Petitioner is alleged to have found that he had been made junior to the Respondent No. 5 in the cadre of ASK(T): his name found a place at Sl. No. 2 while the name of the Respondent No. 5 appeared at Sl. No. 1. To cut the long story short, the aforesaid actions of the Respondents prompted the Petitioner to move the Central Administrative Tribunal, Guwahati ("CAT") for appropriate reliefs. 3. The application was resisted by the Respondent authorities by filing their reply. The main contention of the Respondents was that promotion in their establishment was done on the basis of the roster points maintained by them and not on the basis of seniority, which should not be confused by the Petitioner. The Respondent No. 5 was promoted against vacancy in the Roster Point 7, which was specifically reserved for Scheduled Caste community ("SC"). It was pointed out by the Respondents therein that the Director General, Geological Survey of India in his letter dated 9-1-2004 had clarified that if a vacancy falling on the reserved point was the only vacancy during the initial year of promotion, then such vacancy would be treated as unreserved, but in the event of the occurrence of more than one vacancy, the reserved (SC) vacancy falling on a particular point would be filled up by the SC candidate. According to the Respondents, on further verification of the Roster Points, it had been found by them that the initial promotion started in the year 1995, followed by the subsequent years of 1996 and 1998. It was thus contended by the Respondents that the single vacancy occurring in the post of ASK(T) in the year 2003 falling within the reserved category of SC could not be treated as unreserved as it was not the initial year of promotion. Consequently, the Respondent No. 5, who belong to SC community and was otherwise found fit and suitable for the post of ASK(T) was accordingly promoted to that post. 4. The Respondent authorities denied that there had been violation of 50% limit of reservation or of excess representation by reserved category candidates. Consequently, the Respondent No. 5, who belong to SC community and was otherwise found fit and suitable for the post of ASK(T) was accordingly promoted to that post. 4. The Respondent authorities denied that there had been violation of 50% limit of reservation or of excess representation by reserved category candidates. It was pointed out that out of the eight sanctioned posts of ASK(T), two posts could not be filled up due to non-availability of candidates in the feeder posts of Store Clerks and in the remaining six posts, three posts were filled up by unreserved candidates while the three unreserved points were filled up by ST candidates on the basis of seniority: these ST candidates were thus to be treated as 'own merit' candidates and would not be adjusted against reserved quota in terms of the Office memorandum dated 11-7-2002 issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions, Government of India. As there was no representation of SC community till vacancy occurred at point No. 7 of the Roster, it was the obligation of the Respondents under the Reservation Policy to give promotion to the Respondent No. 5 when the vacancy occurred. 5. After hearing Mr. N. Mozika, the learned Counsel for the Petitioner, and Mr. S.C. Shyam, the learned CGC appearing for the Respondent authorities and on perusing the impugned order, we do not find any merit in this writ petition. The fact that the Respondent No. 5 belongs to SC community is not in dispute. There is also no dispute, nor can there be any dispute on the material on record, that there was no representation of SC community till the vacancy for the post of ASK(T) occurred at Roster Point No. 7. The six points from Sl. No. 1 to Sl. No. 6 in the Roster Points were occupied by three unreserved candidates and three ST candidates by virtue of their seniority and not by virtue of reservation or any relaxation in their qualifications. In terms of the Office Memorandum dated 11-7-2002, these three ST candidates would be treated as 'own merit' candidates and should not be adjusted against reserved quota. Once we reached this conclusion, there is no difficulty in holding that there had been no representation of SC community till the vacancy occurred at Point No. 7 of the Roster. In terms of the Office Memorandum dated 11-7-2002, these three ST candidates would be treated as 'own merit' candidates and should not be adjusted against reserved quota. Once we reached this conclusion, there is no difficulty in holding that there had been no representation of SC community till the vacancy occurred at Point No. 7 of the Roster. Therefore, we reject the contention of the learned Counsel for the Petitioner that the Respondent No. 5 was promoted against the post at Roster Point No. 5 on the resultant vacancy caused by the promotion of Shri Kanad Deb Barman. As already noticed, the three vacancies from Point No. 1 to 6 of the Roster were filled up by unreserved candidates while the remaining three were filled up by ST candidates but who were treated as own merit candidates, which need not be adjusted against the reserved posts meant for them. It is thus evident that the post at Roster Point 7 was filled up by the Respondent No. 5, who admittedly belongs to a Scheduled Caste community. There is thus no infirmity in the findings of the CAT. 6. That apart, another factor which comes in the way of the Petitioner is the delay in filing the original application before the CAT. The Tribunal recorded the findings that though the private Respondent was promoted on 1-11-2003 against which the Petitioner has a grievance, he chose to approach the Tribunal only in 2007, which was impermissible in view of Section 21 of the Administrative Tribunal Act, 1985, which provided the limitation period of one year for filing such an application. The Tribunal rightly observed that repeated representations did not extend the cause of action. A desperate attempt has been made by the learned Counsel for the Petitioner in the course of hearing that the impugned promotion of the Respondent No. 5 was known to the Petitioner only when the seniority list of Assistant Store Keepers was published on 31-12-2005 when he was made junior to the Respondent No. 5. We are not impressed with this submission of the learned Counsel for the Petitioner. It must be noted that the Geological Survey of India, N.E. Region is a small establishment. We are not impressed with this submission of the learned Counsel for the Petitioner. It must be noted that the Geological Survey of India, N.E. Region is a small establishment. It is thus difficult to believe that the Petitioner was not aware of the promotion of the Respondent No. 5 to the post Assistant Store Keeper till 31-12-2005 when the seniority list in question was published wherein he was made junior to the Respondent No. 5. In our opinion, the Tribunal has rightly dismissed the application of the Petitioner, for which our interference is not called for. 7. Resultantly, there is no merit in this writ petition, which is hereby dismissed. However, on the facts and in the circumstances of the case, we direct the parties to bear their respective costs. Petition dismissed.