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Jharkhand High Court · body

2017 DIGILAW 2024 (JHR)

Yamuna Ram v. State of Jharkhand

2017-11-24

S.N.PATHAK

body2017
JUDGMENT : S.N. Pathak, J. 1. Heard the parties. 2. The petitioner has approached this Court with a prayer for quashing the orders dated 23.8.2016 and 24.8.2016 issued by the respondent No. 2 and further prayer has been made for a direction upon the respondents to promote the petitioner on the post of Chief Engineer. 3. Sans details, the facts as averred in the writ petition, in a nutshell is that petitioner was appointed on 15.7.1987 to the post of Assistant Engineer in Public Health and Engineering Department (PH ED) on the recommendation of Bihar Public Service Commission under the Scheduled Caste Category and is presently working as Superintending Engineer in Drinking Water and Sanitation Circle under the Drinking Water and Sanitation Department, Medni Nagar. He was promoted to the post of Executive Engineer in Drinking Water and Sanitation Department vide memo no. 3737 dated 29.8.2013, subsequently, he was again promoted vide notification no. 4734 dated 3.11.2015 to the post of Superintending Engineer in Drinking Water and Sanitation Department, Govt. of Jharkhand. It is stated that the Superintending Engineer is the Feeder Cadre to the post of Chief Engineer and the same is filled up by giving promotion to the Superintending Engineer. It is the further case of the petitioner that in Drinking Water and Sanitation Department in the year, 2015 one vacancy has arose to the post of Chief Engineer, which is a cadre post and the same is being filled up by rotational roster. The respondent No.2 in Course of roster clearance observed that the vacancy is of the Scheduled Caste Category but no candidate of Scheduled Caste Category is available in the Feeder Grade i.e. Superintending Engineer and accordingly decided that the same will be filled up by the General-Category Candidate and one person will retire on 30.6.2016 from the General Category then the said post will be filled up by the candidate of Scheduled Caste Category. Although, the said decision was not in terms of rotational roster policy as well as guideline of the Hon'ble Apex Court as the said vacancy is to be carried forward till the availability of the Scheduled Caste Candidate. But after the retirement of Ram Bilash Sinha a General Category Candidate from the post of Chief Engineer on 30.6.2016, the respondent No. 4 sent the file in the office of the respondent nos. But after the retirement of Ram Bilash Sinha a General Category Candidate from the post of Chief Engineer on 30.6.2016, the respondent No. 4 sent the file in the office of the respondent nos. 2 & 3 for roster clearance to the post of Chief Engineer in Drinking Water and Sanitation Department. The present vacancy is clearly of roster point of Scheduled Caste Category in terms of the earlier decision taken by the respondent nos.2 & 3 but respondent No.3 made recommendation that although the said vacancy is of the Scheduled Caste Category as per roster point but on the post of Chief Engineer two candidates out of five are from Scheduled Tribe Category and are already working, if the said vacancy is filled up in terms of roster point, the reservation will exceed 50 per cent quota. Therefore, the respondent No.3 decided that the existing vacancy on the roster point of Scheduled Caste Category be skipped and a candidate of General Category be promoted on the roster point of Scheduled Caste Category on 23.8.2016 and same was approved by the respondent No.2 on 24.8.2016. Pursuant thereto, the petitioner filed representation before the respondent no. 2 on 26.8.2016 but till date no action has been taken by the respondent. Hence, this writ petition has been preferred, challenging toe impugned orders dated 23.8.2016 and 24.8.2016. 4. Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner, submitted that the orders dated 23.8.2016 and 24.8.2016 are illegal, arbitrary and without jurisdiction. Learned counsel for the petitioner further submitted that the roster point of Scheduled Caste Category and Scheduled Tribe Category cannot be taken together as both are different category and different percentage of reservation has been provided for Scheduled Caste Category and Scheduled Tribe Category. Learned counsel strenuously argues that the Hon'ble Apex Court in case of R.K. Sabharawal Vs. State of Punjab & Ors. reported in (1995)2 SCC 745 as well as the rotation roster formulated by the State Government on 31.3.2005, the same can not be violated at any point of time and as such, it is a settled law that the vacancy arises for a particular category, the same shall be filled up by that category only and the roster cannot be filled up by another category otherwise entire reservation roster system will be collapsed. Learned counsel further argued that the petitioner is the only candidate to the post of• Superintending Engineer, belonging to Scheduled Caste Category and as per the roster rotation, the vacancy is of the Scheduled Caste Category. In such circumstances, the said post is to be filled up by giving promotion to the petitioner to the post of Chief Engineer as he belongs to Scheduled Caste Category. Learned counsel for petitioners further submitted that the respondents cannot promote a candidate of General Category to the post of Chief Engineer on the roster point of the Scheduled Caste Category. In the matter of promotion, the State of Jharkhand issued a Resolution vide Memo No. 3286 dated 4.4.2014, which has been amended on 24.10.2014 in which it has been stated that an employee, who has completed 20 years of Government service and also completed one year on his substantive post then the said employee became eligible of being promoted on the next higher post. Admittedly, at present two persons belonging to Scheduled Tribe Category are working on the post of Chief Engineer in the Drinking Water & Sanitation Department nut (sic) they were promoted on the basis of their seniority in the feeder post, not in the basis of reservation/roster clearance, meaning thereby, these Scheduled Tribe candidates were promoted against the vacancy/roster point of General Category Candidates and not against the vacancy/roster point of their own category. Resultantly, no employee of Scheduled Tribe Category are working on the roster point of Scheduled Tribe and hence, the petitioner is entitled for the promotion to the post of Chief Engineer on the roster point of Scheduled Caste and as such 50% reservation will not be exceeded. 5. Per contra, counter-affidavit has been filed by the respondents. Learned counsels appearing on behalf of the respondents and intervenor, vehemently opposed the contentions advanced by the learned counsel for the petitioner and submitted that Annexure-IV of the Resolution No. 1072 dated 17.2.2009 reveals that if the number of reserved category candidates exceeds 50 per cent, then the reservation could be determined ignoring the reserved point. To buttress his argument, learned counsel for the respondents relies upon para 12 of Memo No. 36012/02/96-Estt. (Res) dated 2.7.1997 relating to post based reservation roster while implementing the judgment passed in the case of R.K. Sabharawal vs. State of Punjab & Ors. To buttress his argument, learned counsel for the respondents relies upon para 12 of Memo No. 36012/02/96-Estt. (Res) dated 2.7.1997 relating to post based reservation roster while implementing the judgment passed in the case of R.K. Sabharawal vs. State of Punjab & Ors. (supra) which reads as under:- "In the case of small cadres (up to 13 posts), all the post shall be earmarked on the same pattern as in the model post based rosters. Initial recruitment against these posts shall be by the category for which the post is earmarked. Replacement of incumbents of post shall be by rotation as shown horizontally against the cadre strength as applicable. While operating the relevant roster, care will have to be taken to ensure that on no occasion the percentage of reserved category candidates exceed 50%. If such a situation occurs at any time, the relevant reserved points occurring as a result of rotation will be skipped." Learned counsel further submitted that similar provision has been mentioned in note-4 of Annexure-IV the Sankalp No.1072 dated 17.2.2009 issued by the Personnel Department regarding roster clearance. In the instant case, out of five sanctioned posts four Chief Engineers are presently working and one post is lying vacant. Out of working four Chief Engineers, two-are of Scheduled Tribe Category. Hence, the representation of reserve category is already 40 per cent. If one more post is allotted to the Scheduled Caste (a reserve category) then the percentage of reserved category in working strength of Chief Engineers exceeds the limit of 50 per cent. Therefore, the respondents have rightly rejected the claim of the petitioner. Learned counsels further submitted that as per Circular No. 10483 dated 24.10.2014 of the Personnel Department, minimum qualifying period for promotion has been relaxed and in the present case, the petitioner will get eligibility on 3.11.2016 for promotion to the post of Chief Engineer. On such circumstances, learned counsel for the respondents submitted that the present writ petition is liable to be dismissed. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is required in the present writ petition. There is no illegality or infirmity committed by the respondents in non-considering the case of the petitioner. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is required in the present writ petition. There is no illegality or infirmity committed by the respondents in non-considering the case of the petitioner. There is no subsistence in the writ petition mainly on the following grounds:- (I) The petitioner claiming promotion to the post of Chief Engineer, challenging the roster clearance 24.8.2016 was granted much before, the petitioner got eligibility for promotion to the post of Chief Engineer on 3.11.2016 meaning thereby, the petitioner was not eligible for promotion on 24.8.2016 in view of State Government Notification. (II) In considering the case of the petitioner rightly it has been mentioned that in no way percentage of reserved category candidates can exceeds 50 per cent and if such a situation arises at any time, the relevant reserved points occurring as a result of rotation will be skipped and in the instant is case it has been done. The said action of the respondents is also fortified by the Resolution of the State Government vide Memo No. 36012/2/96 Estt. Dated 2.7.1997. (III) If, the case of the petitioner is considered for promotion to the post of Chief Engineer, as two persons are already working as Chief Engineer on reserved post out of five sanctioned post of Chief Engineer and if the next post is also declared as reserved post then 60 per cent of the post will be reserved and fall under reserved category, which is in complete violation of the Order of the Hon'ble Supreme Court and guidelines issued by the Personnel, Administrative Reforms and Rajbhasha Department. 7. Even on going through the DoPT's O.M. dated 2.7.1997 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), New Delhi, which is annexed at Annexure-E to the counter-affidavit in which Para 12 it has been held that "In the case of small cadres (up to 13 posts), all the posts shall be earmarked on the same pattern as in the model post-based rosters. Initial recruitment against these posts shall be by the category for which the post is earmarked. Replacement of incumbents of post shall be by rotation as shown horizontally against the cadre strength as applicable. Initial recruitment against these posts shall be by the category for which the post is earmarked. Replacement of incumbents of post shall be by rotation as shown horizontally against the cadre strength as applicable. While operating the relevant roster, care will have to be taken to ensure that on no occasion the percentage of reserved category candidates exceed 50%. If such a situation occurs at any time, the relevant reserved point occurring as a result of rotation will be skipped". 8. The State Government is also clear on that point, which is annexed at page 53 to the counter-affidavit in which Clause-4 it has been mentioned that in case of reserved category if the reservation exceeds 50 per cent then the State is empowered to consider in view of Clause 4 and as such in view of Resolution of DoPT's and also in view of the guidelines and Circular of the State Government, it is crystal clear that skipping the relevant reserved point/roster and giving it to the General Category is fully justified. It is an admitted fact that the post in question is meant for Scheduled Caste, however, skipping the same as it crossed 60 per cent, and to fill it by a General Category Candidate will bring equilibrium. The case of the petitioner cannot be considered as it amounts to exceeding the 50 per cent quota of Reservation, which is not permissible in view of the guidelines, rules and judicial pronouncements, which has been held in catena of decisions that reservation cannot be exceeded beyond 50 per cent. 9. As a cumulative effect of the aforesaid rules, guidelines and' judicial pronouncement, the petitioner is not entitled for the promotion to the post of Chief Engineer in reserved category for roster clearance. 10. Resultantly, no interference is required in the present writ petition and as such it merits dismissal. 11. LA. No. 7579 of 2016 also stands disposed of.