Union of India and Others v. P. Vanaja Kumari and N.C. Patnaik

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938 WP(C).No. 19572 of 2008 (S) ---------------------------- AGAINST THE ORDER IN OA 450/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 28.3.2008 PETITIONERS: - ------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI. 2. THE CHIEF OF THE NAVAL STAFF, - NAVAL HEADQUARTERS, NHQ PO, NEW DELHI. 3. THE FLAG OFFICER COMMANDING-IN-CHIEF, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI. 4. THE DIRECTOR, CIVILIAN PERSONNEL, INTEGRATED HEADQUARTERS (NAVY), MINISTRY OF DEFENCE, NEW DELHI-110 001. ## BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENTS: - ---------------------- 1. P.M.VANAJA KUMARI, AGED 47 YEARS, W/O.C.K.ASOKAN, CIVILIAN EDUCATIONAL INSTRUCTOR GRADE-I, NAVIGATION DIRECTION SCHOOL, INS VENDURUTHY, COCHIN-4, RESIDING AT CHULLICKAL HOUSE, GANGA NAGAR, EDAPPALLY, COCHIN-682 024. 2. SHRI N.C.PATNAIK, CIVILIAN EDUCATIONAL OFFICER, INS CHILKA, CHILKA P.O., KHURDA DISTRICT, ORISSA. BY ADV. SRI.T.C.GOVINDA SWAMY ADV. SMT.D.HEERA ADV. SMT.R.R.REJITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.19572/2008** ## **PETITIONER'S EXTS:** EXT.P1: COPY OF OA 450/07. EXT.P2: COPY OF OM No.22011/5/86-ESTT (D) DT.10[th] APRIL 1989. EXT.P3: COPY OF REPLY STATEMENT DATED 21ST SEPTEMBER, 2007. EXT.P4: COPY OF ORDER DT.28.3.2008 IN O.A.No.450/2007. ## **RESPONDENTS' EXTS: NIL** TRUE COPY P.S.TO JUDGE dsn **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------W.P.(C)No.19572 OF 2008** **-------------------------------------------------DATED THIS THE 4[th] DAY OF JULY, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** ## . Challenge is against Ext.P4 order passed by the Tribunal directing the applicant to be considered for promotion to the post of Civilian Education Officer, which vacancy arose on 1.6.2007 and if found suitable to have the promotion, give retrospective effect notionally from the date of occurrence of the said vacancy. 2. The sequence of events reveals that, the 1st respondent herein had commenced his service as a Civilian Instructor on casual basis in 1983 and his service was regularised in April, 1985. The post was upgraded as Civilian Educational Instructor Grade-I on 12.9.2002. The next post in the channel of promotion is that of Civilian Educational Officer in the scale of pay Rs.7500-12000, which was created in the year 1993. Only 'three' vacancies were available in that cadre. By virtue of the 'vacancy-based roster', which was being followed, a claim was put forth by the applicant. Annexure A4 order came to be passed on 19.4.2007, rejecting the W.P.(C)No.19572/2008 -2- claim for the reason that, though the applicant was having the requisite extent of 3 years of regular service in the cadre of Civilian Educational Instructor Grade-I, for being considered for promotion to the post of Civilian Educational Officer, the applicant was placed only at Sl.No.17 (which appears to be a mistake and it ought to have been '16') in the seniority list of Civilian Educational Instructors and was not coming within the extended zone of consideration for promotion to the said post. This made the applicant to feel aggrieved, who approached the Tribunal by filing O.A.No.450/2007, with the following prayers. - (i) Call for the records leading to the issue of Annexure A4 and quash the same; - (ii) Call for the records leading to the issue of the order bearing No.CP(G)/1813/CEO dated 7.3.2006, issued by the 4[th] respondent and quash the same to the extent it relates to the 5[th] respondent. - (iii) Declare that the applicant is entitled to be considered for promotion against the vacancy of Civilian Educational Officer which arose on 28.2.06/1.3.06, or at least the vacancy which arose on 1.6.2007 and direct the respondents to consider the applicant for promotion and direct further to grant all consequential benefits emanating W.P.(C)No.19572/2008 -3- therefrom, with effect from the date of promotion of the 5[th] respondent. 3. The claim was resisted from the part of the Department raising several grounds and contending that the exercise pursued by the Department was perfectly in conformity with the relevant rules. Only those persons who were coming within the zone of consideration to the requisite extent, depending upon the number of vacancies could be considered and by virtue of the placement of the applicant, she was not eligible to be considered, as outside the zone of consideration. The Tribunal considered the issue and placing reliance on the verdict passed by the Supreme Court in **P.Seshadri v. Union of India (1995 (3) SCC 552)** , it was held that the O.A. was liable to be allowed. It was accordingly, that the impugned order was set aside and a direction was given as borne by paragraph No.8 in the following terms. 8. In view of the above, the OA is allowed. The impugned order dated 19[th] April, 2007 is quashed and set aside. The applicant be considered for promotion to the post of CEO from 1.6.2007 and if W.P.(C)No.19572/2008 -4- found suitable, her promotion would have retrospective effect notionally from the aforesaid date when the vacancy was available as well as the applicant became eligible and the promotion shall be actual from the date the applicant assumes higher responsibilities. This task shall be completed within a period of three months from the date of communication of this order.” The petitioners are aggrieved by the above order and they seek for interference of this Court mainly contending that the verdict passed by Apex Court which was relied on by the Tribunal stands on a different footing and not applicable to the case in hand. 4. Heard the learned Assistant Solicitor General of India appearing for the petitioners as well as Smt.Sreekala, learned counsel appearing on behalf of the 1st respondent. 5. The learned ASGI submits that in the case considered by the Apex Court, the persons concerned were coming within the extended zone of consideration. It is pointed out that, originally only 'three' vacancies were available, which were filled up by recruiting open candidates, pursuant to the proceedings pursued by the DPC. The the 4th vacancy arose only on 1.4.2007, W.P.(C)No.19572/2008 -5- pursuant to retirement of an incumbent which was to be filled up by a Schedule Caste candidate. By virtue of the relevant norms, in respect of 'one' vacancy, 5 persons were to be considered. The zone of consideration was widened, since no Scheduled Caste candidate was available and by virtue of the extended zone of consideration, it can only be to a maximum extent of '14', whereas the applicant was standing in the queue at slot 16, by virtue of which, she was not in a position to be considered and hence she was not considered. 6. The learned counsel for the 1st respondent points out that the entire exercise pursued by the Department is thoroughly wrong and misconceived. There is no dispute with regard to the status of the applicant being a member of Scheduled Caste, who was to be considered in the 4th slot, the said vacancy having been earmarked to be filled up by a Scheduled Caste candidate. It was in the said circumstance, that interference was made by the Tribunal; which is based on the relevant provisions of the law and the binding precedents, which hence is not assailable under any circumstance, submits the learned counsel. W.P.(C)No.19572/2008 -6- 7. After hearing both the sides, this Court finds that the reservation principles were explained and reiterated by the Apex Court as per the celebrated decision in **R.K.Sabharwal v. State of Punjab (1995 (2) SCC 745)** . As per the said verdict, the Apex Court made it clear that vacancies had to be filled up by following the “post-based roster” and not a “vacancy-based roster”. Coming to the case in hand, the 'three' vacancies which were originally available between 28.2.2006 and 3.2.2006 were filled up by open candidates. The next vacancy arose on 1.6.2007, which admittedly was to be filled up by a SC candidate. In so far there is no dispute for the petitioners/Department to the effect that the aforesaid vacancy, which is a retirement vacancy that arose on 1.6.2007 was to be reserved to be filled up by an SC candidate, the question is whether the zone of consideration was prepared and considered in this regard, i.e., with intent to fill up this slot by an SC candidate considering sufficient number of such candidates, i.e., SC candidates. Instead of preparing a list of qualified SC candidates to effect a comparative analysis of the 'plus and minus' points by the DPC, the petitioners/Department W.P.(C)No.19572/2008 -7- simply widened the zone of consideration, taking other persons in the list as well; which included open candidates and quite strangely held that no SC candidate was available, till the position at Sl.No.14. This is per se wrong and illegal in all respects by virtue of the law declared by the Apex Court in Sabharwal's case (supra) as to the manner in which the post had to be filled up applying the roster. In any view of the matter, in so far as there is no dispute as to the '4th vacancy' to be filed up by an SC candidate, there was no rhyme for widening the zone of consideration in respect of others concerned, instead of considering the credentials of candidates exclusively belonging to SC category. This alone has been facilitated as per the order passed by the Tribunal and as such, this Court does not find any tenable ground to call for interference with Ext.P4 verdict passed by the Tribunal. 8. When the Writ Petition was admitted, an interim order of stay was granted, considering the prayers raised by the petitioners. Subsequently, after entering appearance, the 1st respondent sought to vacate the stay, which came up for W.P.(C)No.19572/2008 -8- consideration before another Bench of this Court on 3.11.2008 After hearing both the sides, the following interim order was passed on that day: “Heard. The learned counsel for the first respondent prays for vacating the interim order. The first respondent submits that she is Sl.No.16 in Annexure A5 to Exhibit P1, seniority list. She is the first SC candidate in that list. Vacancy in the 4[th] point in the roster which arose as a result of retirement of Mr.C.Gopalakrishnan in June, 2007 is earmarked for Scheduled Caste. The petitioner is the first SC candidate in Annexure A5 to Exhibit P1, seniority list. Therefore, her claim was liable to be considered. This is admitted in Annexure A4 also. Of course, her claim cannot be considered for the vacancy in the 3[rd] point of the roster, as it is an unreserved vacancy and the petitioner does not come in the field of choice in that selection. But, for the vacancy in the 4[th] point which arose as a result of retirement, the first respondent is entitled to be considered. So, prima facie, we find nothing wrong with Exhibit P4. In the result, the interim order granted is vacated. The petitioners shall implement the decision of the CAT, within four months from today. The implementation will be subject to the result of the Writ Petition.” W.P.(C)No.19572/2008 -9- After hearing both the sides, this Court finds that the interim order passed by this Court on 3.11.2008 is virtually giving effect to the Rules of Reservation based on the undisputed extent of facts. If the interpretation sought to be made by the Department is accepted, there is every likelihood that the purpose of reservation itself will be defeated. We find that the interim order passed by this Court on 3.11.2008 is liable to be made absolute. We do so. We find no merit in the Writ Petition. The same stands dismissed. Sd/- ## **P.R.RAMACHANDRA MENON** , **JUDGE** ## Sd/- **ANIL K.NARENDRAN, JUDGE** dsn //True copy P.S. to Judge//