UNION OF INDIA Vs. HIMANSHU VERMA

JUDGEMENT

(1.) Whether seniority can be conferred to the Scheduled Caste/Scheduled Tribe candidates who are given promotion in the reserved slots earlier than the Senior General Category candidates in the feeder cadre, without effecting any legislation or passing any executive orders by the Government as envisaged under Article 16(4A) of the Constitution of India, ignoring the "Catch-up rule" formulated by the Constitution Bench of the Apex Court in Union of India v. Virpal Singh Chauhan, 1995 6 SCC 684} and as accepted by the subsequent Constitution Bench in Ajit Singh (II) v. State of Punjab, 1999 7 SCC 209} ? Whether it can be done so, without collecting the data as to the inadequacy of representation of such class as mandated by the Constitution Bench of the Apex Court in M. Nagraj v. Union of India, 2006 8 SCC 212 and as accepted by the subsequent Constitution Bench in Jarnail Singh v. Lachhmi Narain Gupta and Others, 2018 10 SCC 396 ? These are the questions to be considered in this writ petition filed by the Central Government and the authorities of the Central Excise/Customs Department, challenging the verdict passed by the Central Administrative Tribunal, Jabalpur Bench, Circuit Sitting Bilaspur (for short 'the Tribunal') answering the said questions in the 'Negative'.

(2.) The genesis of the dispute reveals that the Respondents 1 to 12 were working as Inspectors in the Department with settled seniority over the Respondents 13 to 15. But the Respondents 13 to 15, by virtue of their being members of the Scheduled Caste/Scheduled Tribe community came to be promoted earlier, on extending the benefit of Article 16(4A) of the Constitution of India and it was thereafter, that the Respondents No. 1 to 12 came to be promoted to the cadre of Superintendent. But once the seniors were also promoted to the above cadre, by virtue of the law of "Catch-up rule" evolved by the Apex Court in Virpal Singh Chauhan (supra) and accepted in Ajit Singh (II) (supra), they were to be placed above the Respondents 13 to 15 (juniors who got promoted earlier in the reserved segment), which however was not given effect to. A seniority list was prepared giving seniority to the Respondents 13 to 15 in the cadre of Superintendent, above the Respondents 1 to 12, merely with reference to an Office Memorandum of instructions dated 21.01.2002 (Annexure A-1/2) of the Department of Personnel and Training. Met with the situation, the Respondents 1 to 12 approached the Tribunal seeking for a direction to the competent authority to prepare a fresh combined seniority list in the cadre of Superintendent, Central Excise by following the principle of "Catch up rule" and also to direct the authorities concerned to consider the eligible candidates for promotion to the post of Assistant Commissioner, Central Excise, after preparation of the seniority list of Superintendents of Central Excise, following the "Catch up rule".

(3.) When the matter came up for consideration before the Tribunal on 23.03.2018, Annexure P/2 order was passed directing to maintain status quo regarding convening of the proposed DPC. The Petitioners herein filed their reply and an MA to vacate the interim order, pointing out that the reliance sought to be placed by the Applicants in the Original Application to have granted the interim order, based on another interim order passed by the Tribunal was not correct, as there was factual difference between the two cases. It was also pointed out that because of the interim order, ad hoc DPC for the year 2018 and 2019 was stayed and officers were getting retired all over India, every month, without getting promotion. Reference was also made to some orders passed by the Apex Court in some cases permitting to hold ad hoc DPC to conduct promotion from the 'reserved to reserved' and the 'unreserved to unreserved' segments. It was further pointed out that, as per the various rulings of the Apex Court, it was abundantly clear that the "Catch up rule" was not a constitutional requirement and that there was no merit in the Original Application, either in law or on facts.