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2013 DIGILAW 163 (RAJ)

Chandra Bhan v. Union of India

2013-01-21

DINESH MAHESHWARI, MAHENDRA MAHESHWARI

body2013
JUDGMENT 1. These two writ petitions, being directed against the common order dated 12.04.2002 as passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the CAT') in OA Nos.204/1998 and 296/2000 have been considered together; and are taken up for disposal by this common order. 2. Put in brief, the relevant background aspects of the matter are that the petitioner of CWP No.3307/2002 filed the OA bearing number 204/1998 while questioning the order dated 03.04.1998 whereby his claim for conducting trade test for the post of Fitter General Mechanic H.S.-II (FGM HS-II) was declined by the respondents. Later on, the petitioners of CWP No.3466/2002 filed the other OA bearing number 296/2000 seeking directions against the respondents for consideration of their case for promotion to the post of FGM HS-II from the date the persons junior to them had been promoted. 3. Essentially, the grievance voiced before the CAT by the writ petitioners was that they had been working on the post of Fitter General Mechanic (Skilled) and two of the incumbents belonging to Scheduled Tribe category, though junior to them, were permitted to take the trade test for the post of FGM HS-II; and on having qualified in the said trade test, they were promoted while ignoring the seniority of the petitioners. It was also suggested that no reservation could have applied for the purpose of inclusion in the trade test. 4. The respondents submitted in the counter that the trade test for FGM HS-II had been conducted strictly on seniority basis; and the FGMs having seniority upto 31.03.1987 were only allowed to appear in the trade test. It was also submitted that the individuals belonging to SC/ST categories, with seniority in the relevant grade upto 11.09.1991, were also invited in the trade test and those who qualified were appointed against the reserved points as per the reservation policy. As regards the claim of the petitioners-applicants it was maintained that they all having joined on the post of FGMs much after 31.03.1987, could not have been called for the trade test. 5. As regards the claim of the petitioners-applicants it was maintained that they all having joined on the post of FGMs much after 31.03.1987, could not have been called for the trade test. 5. The CAT proceeded to consider the submissions of the parties and observed that the trade test had been conducted for the purpose of promotion to the vacant posts; and when the posts were to be filled up as per the roster of reservation, the SC/ST category candidates were required to be invited for the trade test lest the vacancies reserved for them remained unfilled. Thus, the CAT found unjustified the grievance of the petitioners against the SC/ST candidates; and proceeded to reject their claim while observing, inter alia, as under:- "6. It is not in dispute that promotion to the post of FGM H.S.- II attracts roster reservation policy and the points reserved for Scheduled Caste/Scheduled Tribe categories, would be filled up by the candidates of those categories and for that purposes Scheduled Caste/Scheduled Tribe category candidates though, much junior in the seniority list, would have to be called for the trade test. It is not correct to say that no roster reservation is provided for trade test. As a matter of fact, trade test is conducted to fill up the vacant posts and the posts are to be filled up as per the roster reservation and if, Scheduled Caste/Scheduled Tribe category candidates are not invited to take the trade test, vacancies reserved for them, would not be filled up. In these circumstances, we are firmly of the view that the grievance of the applicants against the Scheduled Caste/Scheduled Tribe candidates is not sustainable and we do not find any merit in these applications. Both the Applications are liable to be dismissed." 6. It is submitted on behalf of the petitioners that CAT has erred in not taking into consideration rather undeniable position that no reservation was applicable to the trade test and there was a mistake on the part of the respondents in applying reservation thereto. It is submitted that the CAT has failed to appreciate the distinction between the reservation for the trade test and reservation for giving promotion inasmuch as the trade test is open for all the eligible while promotion may be effected after applying the roster. It is submitted that the CAT has failed to appreciate the distinction between the reservation for the trade test and reservation for giving promotion inasmuch as the trade test is open for all the eligible while promotion may be effected after applying the roster. It is also submitted that according to the stand of the respondents themselves, they proceeded to rectify the mistake and another trade test was arranged in the year 1998 in which the petitioners were successful but they were not promoted because of want of vacancies. According to the petitioners, but for such mistakes of the respondents, they would have got the promotion earlier because the vacancies were available; and since the juniors had been promoted, they were entitled to be promoted from the date of such promotion of the juniors. 7. During the course of submissions, the learned counsel for the petitioners has particularly referred to the averments taken by the respondents in paragraphs 4.7 and 4.8 of the reply to the OA (as placed on record in CWP No.3466/2002). The learned counsel submitted that when, as per the statements of the respondents, 11 additional vacancies were sought and the respondents submitted that applicants could be given due promotion upon allotment of vacancies, the present position might have changed. 8. The learned counsel for the respondents on the other hand has duly supported the order impugned and submitted that so far as the claim of the petitioners qua or against the SC/ST category candidates is concerned, the same could not have been sustained and has rightly been rejected by the CAT. According to the learned counsel, the trade test was conducted essentially for filling up the vacancies through promotions; and if the SC/ST candidates were not invited for the trade test, the vacancies in their relation would have remained unfilled. 9. We have given thoughtful consideration to the submissions made and have examined the record. 10. So far the claim of the petitioners with reference to the choice given to the SC/ST candidates for appearing in trade test is concerned, in our view, no exception could be taken in observations as made by the CAT. 9. We have given thoughtful consideration to the submissions made and have examined the record. 10. So far the claim of the petitioners with reference to the choice given to the SC/ST candidates for appearing in trade test is concerned, in our view, no exception could be taken in observations as made by the CAT. The promotions were nevertheless to be made as per the roster points and if, as per the roster points, the vacancies were to be filled up by SC/ST category candidates, the respondents cannot be faulted in inviting and promoting them upon passing of the trade test. So far the question of invitation to the other persons including the petitioners is concerned, the averments as taken by the respondents in paragraphs 4.7 and 4.8 of the reply could be usefully noticed as under:- "4.7 That the averments made in para No.4.7 of the original application are not admitted in the manner as alleged by the applicants. It is humbly submitted that the applicants were trade tested in 1998. However, since, there is no vacancy available at present, the applicants could not be promoted. The case has been taken up with appropriate authority for release of 11 additional vacancies of FGM HS-II to promote all the remaining individuals including applicants vide CE Bathinda Zone letter No.10382/TT/971/E1C dated 5th March, 2001. Copy of the letter dated 5th March, 2001 is submitted herewith and marked as Annexure-R/3. 4.8 That the averments made in para No.4.8 of the original application are not admitted in the manner as alleged by the applicants. At the cost of repetition, it is humbly submitted that the procedural lapse has taken place in conducting the trade test during 1995 and subsequently the left over individuals were trade tested in 1998 out of which three senior individuals have already been promoted as is evident from Annexures-R/1 & R-2 enclosed to this original application. Moreover, case has already been taken up with higher authorities for release of 11 additional vacancies of FGM HS-II and the applicants will be given their due promotion on allotment of vacancies." 11. Thus, it appears that the respondents themselves have consciously taken up the steps for providing promotions to the left out candidates like the petitioners. 12. Moreover, case has already been taken up with higher authorities for release of 11 additional vacancies of FGM HS-II and the applicants will be given their due promotion on allotment of vacancies." 11. Thus, it appears that the respondents themselves have consciously taken up the steps for providing promotions to the left out candidates like the petitioners. 12. Even though the learned counsel for either of the parties are not in a position to specify the present status of the petitioners but we deem it proper and in the interest of justice to observe in this regard that if any grievance remains, it would be open for the petitioners to take recourse to the appropriate remedies in accordance with law. 13. Subject to the observations and liberty to the petitioners as aforesaid, these petitions are dismissed. No costs.Petitions dismissed. *******