UNION OF INDIA Vs. S K BIKSHAPATHI

JUDGEMENT

(1.) This writ petition, filed by the Union of India and its authorities, is directed against the judgment and order dated 22-10-1999 made in O.A. No.978 of 1998 on the file of the Central Administrative Tribunal (CAT), Hyderabad Bench, directing the petitioners herein to dereserve the post of Assistant Electrical Engineer earmarked for the S.T. candidates, and promote the respondent who belongs to general category to that post if the respondent is next in turn for promotion to the de-reserved post of Assistant Electrical Engineer, and to grant the pay scale attached to the post of Assistant Electrical Engineer.

(2.) The facts are few and simple. They are: For the purpose of filling up six promotional vacancies in the Group-B posts of Assistant Electrical Engineers in the pre- revised scale of Rs.2,000-3,500 (4 OC + 1 SC + 1 ST) through Limited Departmental Competitive Examination (for short 'LDCE'), a Notification No.P(GAZ)607/EL/ LDCE(8), dated 23-11-1993 was issued against the quota of 30% Group-C staff. The said notification stipulates that all Group-C staff of Electrical Department with 5 years regular service in the grade of Rs.1,400-2,300 are eligible to appear for the examination. The respondent who belongs to Group-C staff appeared for the said examination held on 8-10-1995 and was declared eligible for the viva-voce. On the basis of the performance in viva-voce, on 29-11-1995 a provisional list of selected candidates was published vide letter No. P(GAZ)EL/LDCE(8), dated 11-12-1995 for filling of only 5 vacancies, i.e., 4 OC + 1 SC and that the S.T. vacancy could not be filled due to non-availability of ST candidate. In the circumstance, the said vacancy in the post reserved to STs was carried forward and included as a vacancy in the next LDCE of 1997 notified on 20-1-1997 and further in the LDCE of 1998 notified on 10-7-1998 in conformity with the policy to carry forward the vacancy upto 3 recruitment years if eligible candidates belonging to reserved categories are not available to fill up the vacancy, and such vacancy would then fall to general category but only after 3 consecutive recruitment years. Independent of the inclusion of the reserved ST vacancy in the vacancies of LDCE of 1997 and LDCE of 1998, the proposal to de-reserve the post in terms of Department of Personnel OM No.36011/ 25/7-ESTT (Set) dated 16-11-1979 and supplemented by OM No.36011 /5/81-ESTT (Set) dated 7-4-1981 was considered vide letter No.98-E(SCT)II/57/6, dated 8-1-1997 on the basis of recommendation made on 1-8-1996. Under the regulations governing de-reservation of any post meant for SCs/STs, it is obligatory on the part of the Ministry of Railways to refer the proposal of de-reservation to National Commission for SCs/STs, in terms of DOP & T's OM No.3611/25/79 ESTT (SCT), dated 16-11-1979 before taking a final decision on the matter. The proposal of de-reservation of ST vacancy in 1993 was ultimately dropped in the absence of any concurrence from the National Commission for SCs/STs. It appears that the respondent represented on 20-8-1997 after participating in the LDCE notified on 20-1-1997 to consider the case of de-reservation of ST vacancy notified on 23-11-1993 on the ground that he would have a chance for inclusion in the select list published on 11-12-1995 if the reserved vacancy in favour of STs is de-reserved and thrown open to general category candidates forgetting the fact that by the time he made the representation there was no scope for de-reservation in view of the fact that ST vacancy was already carried forward and again notified on 20-1-1997 and 10-7-1998. According to the department, the representation of the respondent dated 20-8-1997 was not on record, and therefore, they did not send any reply to the respondent. At that juncture, the respondent filed O.A. No.616 of 1998 before the CAT seeking directions to the petitioners to consider his representation dated 20-8-1997. The said O.A. was disposed of on 21-5-1998 by the CAT with a direction to consider the representation of the respondent for de-reservation of ST vacancy notified on 23-11-1993 for the LDCE. The respondent was also permitted to make comprehensive representation in that regard, and accordingly, the respondent submitted one more representation dated 2-6-1998. The petitioners considered the representations of the respondent and rejected the same by its order dated 2-7-1998.

(3.) The respondent again filed O.A. No.978 of 1998 assailing the validity of the order dated 2-7-1998 and sought directions for de-reservation of ST vacancy notified on 23-11-1993 and to include his name in the select list published on 11-12-1995 for promotion to the post of Assistant Electrical Engineer as the 6th vacancy would become vacancy for other candidates after de-reservation. The petitioners filed a detailed counter opposing the application. It was pointed out in the counter that the proposal to de-reserve the ST vacancy of LDCE notified on 23-11-1993 was initiated on 1-8-1996 after publication of results of the said examination on 11-12-1995, while the vacancy is required to be carried forward to subsequent recruitment year.'The proposal was referred to the Department of Personnel on 8-1-1997 having regard to the instructions dated 16-11-1979 and 7-4-1981. The proposal was finally dropped vide letter No.96-E(SET) 11/57/6, dated 19/22-6-1998 considering the fact that the vacancy has been notified for the LDCE 1997 vide notification dated 20-1-1997, and the ban imposed on de-reservation vide letter No.95-E(SET)l/49(5)/2 dated 21-8-1997. It was also contended in the counter that de-reservation is not a matter of right that can be enforced by any other category candidate, and it is a matter of discretion vested in the Railway Board to take a decision whether a particular post earmarked for reserved category should be de-reserved or not, that too, in consultation with the National Commission for SCs and STs In support of the above last contention, the petitioners placed reliance on the judgments of the Supreme Court in Post Graduate Institute of Medical Education and Research vs. K.L. Narasimhan and S.S. Sharma vs. Union of India.