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2019 DIGILAW 2616 (RAJ)

Union Of India v. Saurav Ganguly

2019-09-27

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT 1. These two misc. applications have been filed by Shri Saurav Ganguly and Shri Anivash Kumar seeking review and recall of the judgement of this Court dated 4.2.2019. 2. This Court by the aforesaid judgement disposed of the writ petition filed by them and also the writ petition of the Union of India challenging the judgement dated 13.12.2013 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur by which the Original Application filed by the applicants Shri Saurav Ganguly and Shri Anivash Kumar was disposed of in the following terms: "32. From the above discussion, it is obvious that the process undertaken by the Respondents for preparation of select list/panel for the promotional post of Junior Engineer Grade II cannot be said to be illegal or contrary to the provisions of various RBEs referred above, since the candidates at sr.no. 1 and 2 in the select list/panel were considered on merits and having secured highest marks they were adjusted not in the roster points for reserved candidates but as general category candidates. Of course this will be subject to final outcome of pending SLP as stated earlier. 33. In the result, the application stands disposed of with the above directions. Parties to bear their respective cost of this proceeding. 3. Shri Puspendra Singh Tanwar, learned counsel for the applicants has submitted that this Court had decided the writ petitions on assumption of the fact that Special Leave to Petition arising out of the judgement of Punjab and Haryana High Court dated 15.07.2011 in Lachhmi Narain Gupta & Ors. vs. Jarnail Singh & Ors., Writ Petition No.13128/2009 has been dismissed. Learned counsel however submits that the Special Leave Petition (Civil) No.30621/2011 in Jarnail Singh & Ors. vs. Lachhmi Narain Gupta & Ors., is still pending. The Punjab and Haryana High Court in their judgement dated 15.7.2011, which is subject matter of challenge in the aforesaid SLP examined the veracity and legality of DOPT Office Memorandum dated 10.8.2010, which was on the subject of promotion of SC/ST candidates on unreserved seats on their own merit. The railway administration has adopted the OM of DOPT by issuing RBE No.126/2010. The Punjab and Haryana High Court has set aside the OM dated 10.8.2010 and the SLP is still pending. The judgement therefore should be reviewed and the matter be heard. 4. The railway administration has adopted the OM of DOPT by issuing RBE No.126/2010. The Punjab and Haryana High Court has set aside the OM dated 10.8.2010 and the SLP is still pending. The judgement therefore should be reviewed and the matter be heard. 4. Shri P.C. Sharma, learned counsel appearing for the UOI submits that this Court in the writ petition by order dated 19.11.2018 asked from him to clarify what is the exact position of the Rules applied to a situation where the candidates belonging to the SC/ST reserved category get selected against unreserved posts and the posts reserved for those categories remained unfilled and further whether such posts are liable to revert to general category or to be carried forward and what has been actually done in the present case. 5. It is contended that this Court remanded the matter to the Tribunal because in answer to a query by the Court, in the affidavit filed by the respondents, many new factual aspects were raised. Counter affidavit was also filed by the original applicants i.e. review petitioners herein who relied on the interim order dated 17.5.2018 passed in the aforesaid SLP of Jarnail Singh, supra. 6. Learned counsel has cited the Constitution bench judgement of the Supreme Court dated 26.9.2018 in Jarnail Singh, supra, by which the Constitution Bench has answered the reference to the question and to that extent though the main SLP might be still pending, but after answering the reference, it went back to the concerned Bench for disposal. It is argued that though the judgement aforesaid dated 26.9.2019 has to be understood to be final judgement, but that was not the sole basis for remand of the matter. Even remand of the matter does not affect the merit of the case. It is therefore submitted that there is no case for review. The parties can agitate all the issues before the Tribunal, especially on the various arguments, which they did not originally agitate and now raised before this Court. 7. We have heard learned counsel for the parties and perused the material on record. 8. In fact, as has rightly been issued by learned counsel for the respondents, this Court on 19.11.2018 has passed the following order: "Mr. 7. We have heard learned counsel for the parties and perused the material on record. 8. In fact, as has rightly been issued by learned counsel for the respondents, this Court on 19.11.2018 has passed the following order: "Mr. P.C. Sharma, the learned counsel for the petitioners, submits that two vacancies reserved for Scheduled Castes category and one vacancy reserved for Scheduled Tribes category remained unfilled owing to the fact that two candidates of Scheduled Caste category were selected against unreserved vacancies on their own merit in terms of Clause (1) of the Office Memorandum dated 11th July, 2002 issued by the Ministry of Department of Personnel and Training (DOPT) and none was selected on the post reserved for Scheduled Tribes. This court therefore would like to know as to what is the exact position of the Rules applied to a situation where the candidates belonging to the SC/ST reserved category get selected against unreserved posts and the posts reserved for those categories remained unfilled and whether such posts are liable to revert to general category or to be carried forward and what has been actually done in the present case. Mr. P.C. Sharma, the learned counsel, prays for the time to file specific affidavit in this behalf. List on 16.01.2019." 9. The respondent-UOI in response to the aforesaid order, filed a comprehensive affidavit on 25.1.2019 placing on record four different office memorandums/orders. Petitioners also filed counter affidavit on 4.2.2019. It is against the backdrop of these facts that this Court observed in the order dated 4.2.2019 that parties have now raised some such issues, which were not actually agitated before the Tribunal. The Tribunal kept the selection, subject to final outcome of the SLP in Jarnail Singh & Others, supra. The judgement of Constitution Bench of Jarnail Singh has been rendered answering the reference on the question of correctness of Constitution Bench judgement in M. Nagaraj vs. UOI, (2006) 8 SCC 212 . The question was whether the State has to collect quantifiable data showing backwardness even in the case of Scheduled Castes and Schedule Tribes. The Constitution Bench has held that such conclusion in M. Nagaraj, supra being contrary to nine-Judge Bench judgement in Indra Sawhney vs. UOI, (1992) Supp3 SCC 217 , is invalid. This is only one premise for remanding the matter by this Court, and not the whole basis. The Constitution Bench has held that such conclusion in M. Nagaraj, supra being contrary to nine-Judge Bench judgement in Indra Sawhney vs. UOI, (1992) Supp3 SCC 217 , is invalid. This is only one premise for remanding the matter by this Court, and not the whole basis. The main premise on which the judgement was remanded, was several other office memorandum, which the parties produced before this Court and the arguments, which they did not agitate before the Tribunal and wanted to agitate now. The Tribunal while deciding the matter afresh would obviously take into consideration all those arguments and new arguments also considering the effect of the aforesaid judgement and the Constitution Bench judgement of the Supreme Court in Jarnail Singh, supra and also the pending SLP, which according to learned counsel for the applicants is scheduled to come before the Supreme Court on 15.10.2019. The Tribunal may, in its discretion, decide to await the outcome of the SLP, which is likely to be decided shortly. 10. With that observation, the applications are disposed of.