V.B. James v. Flag Officer, Commanding-in-Chief, Head Quarters, Southern Naval Command, Naval Base, Kochi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938** ## **WP(C).No. 34830 of 2009 (S)** **---------------------------OA.NO. 744/2005 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER :** ## **----------------------** **V.B. JAMES, AGED 44 YEARS, S/O. VARGHESE, MACHINIST, HIGHLY SKILLED, I.C.E. SHOP, N.S.R.Y, NAVAL BASE, KOCHI-4, RESIDING AT VAZHAMATTOM HOUSE, MOOLEPADAM ROAD, KALAMASSERY P.O., KOCHI.** ## **BY ADV. SRI.P.V.MOHANAN** ## **RESPONDENT(S):** - **----------------------------** **1. FLAG OFFICER, COMMANDING IN CHIEF, HEAD QUARTERS, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI.** **2. COMMODORE SUPERINTENDENT , NAVAL SHIP REPAIR YARD, NAVAL BASE, KOCHI.** **3. SELECTION BOARD, CONSTITUTED BY THE IST RESPONDENT, FOR SELECTION TO THE POST OF CHARGE MAN, GRADE II, NAVAL BASE, KOCHI.** **4. A.T. ANTONY, S/O. A.A. THOMAS, ADICHIYIL HOUSE, THYKOODAM, COCHIN -19, CHARGE MAN, GRADE II, NAVAL SHIP PREPAIR YARD, NAVAL BASE, KOCHI-682 004** **5. V.R. VINAYA KUMAR, CHARGE MAN GRADE II, OLD MACHINE SHOP, NSRY, KOCHI-4.** **R1 TO R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2016, THE COURT ON 15-12-2016 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.34830/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER IN O.A.NO.744/05.** - **P2 COPY OF THE ORIGINAL APPLICATION** - **P3 COPY OF THE REPLY DATED 13/12/05** - **P4 COPY OF THE ADDITIONAL REPLY DATED 25/3/06** - **P5 COPY OF THE MISCELLANEOUS APPLICATION FOR IMPLEDING DATED 6/12/05** - **P6 COPY OF THE REJOINDER FILED BY THE APPLICANT DATED 3/1/06** - **P7 COPY OF THE 2ND ADDITIONAL REPLY DATED 22/06/07** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **P.R.RAMACHANDRA MENON & ANU SIVARAMAN, JJ. ----------------------------------------------W.P(C).No. 34830 of 2009 ----------------------------------------------Dated this the 15[th] December, 2016** ## **JUDGMENT** ## **Anu Sivaraman, J.** This writ petition is filed challenging Exhibit P1 order of the Central Administrative Tribunal dismissing O.A.No.744 of 2005. Petitioner is the member of a Scheduled Tribe. He was appointed as a worker in the Head Quarters of Station Naval Command on 14.3.1991. He was promoted as “Highly Skilled Grade-II” on 26.9.1995 and completed three years regular service in the said grade on 26.9.1998. He passed the departmental qualifying test on 30.7.2004. 2. He claims that two vacancies of Chargeman Grade-II had arisen and that he was entitled to be appointed against one such vacancy being a member of a Scheduled Tribe. His claim was that no Scheduled Tribe candidate had been appointed to the post of Chargeman Grade-II under the scheme of reservation applicable for promotion and that he was entitled to be appointed to make up the backlog of Scheduled Tribe hands, even if it entailed a _**WP(C).34830/09**_ 2 relaxation of the selection criteria. He, therefore, sought promotion to the post of Chargeman Grade-II on reservation point set apart for Scheduled Tribe candidates as per Annexure A3 office memorandum dated 22.10.1997 and promotion with effect from 30.11.1999 against a point reserved for Scheduled Tribe to which vacancy the 5[th] respondent was promoted. 3. It is contended that appointments were being made to the post of Chargeman Grade-II in terms of Annexure R2 O.M dated 29.4.1975 till 2.7.1997. It is stated that point No.1, which was reserved for Scheduled Castes, was filled up with a general candidate on 28.10.1986. When the next vacancy arose in 1991, there was no eligible Scheduled Caste candidate and the said vacancy was filled up by another general candidate on 25.10.1991. In 1995, two vacancies arose, first of which was filled up by a Scheduled Caste candidate and the fourth vacancy, which was reserved for Scheduled Tribes, by a Scheduled Caste candidate, since no Scheduled Tribe candidate was available. In the year 1986 also, no Scheduled Tribe candidate was available and the vacancy was filled up by appointing a Scheduled Caste candidate as a general candidate. In the post based reservation _**WP(C).34830/09**_ 3 roster, which was introduced with effect from 2.7.1997, there were only five posts of Chargeman Grade-II and the reserved point of Scheduled Tribes arose at point No.14. Petitioner contends that the unfilled turns in the vacancy based roster should have been brought forward to the post based roster and the petitioner should have been appointed. 4. The contention of the respondents was that after the post based roster became operational, the existing incumbents in the post of Chargeman as on 2.7.1997 were adjusted against the post based roster and two vacancies which arose in 1997 were filled up by appointing a Scheduled Caste hand and a general candidate and placing them at serial Nos.5 and 6 of the post based roster respectively. The 5[th] respondent was placed at point No.6 in the roster and assigned the date 30.11.1999. It is submitted that the petitioner became qualified for promotion to the post of Chargeman Grade-II only with effect from 30.7.2004 and even if the carried forward vacancy of Scheduled Tribes is to be adjusted against the unreserved vacancies in the post based roster, the petitioner would not be qualified for appointment to the post against which the 5[th] respondent was appointed. 4 _**WP(C).34830/09**_ 5. The contentions were considered by the Central Administrative Tribunal. It was found that the cadre strength of Chargeman Grade-II was only 5. It was further found that the applicant became entitled for promotion only on 30.7.2004. By that time, the vacancy based roster was changed to the post based roster with effect from 2.7.1997. The Scheduled Tribe vacancy which had arisen in 1995, which was carried forward for three recruitment years, had also lapsed. In the above view of the matter, it was found that the appointment of the 5[th] respondent as Chargeman Grade-II on 30.11.1999 could not be assailed by the petitioner, who was junior to the 5[th] respondent and was not qualified as on the date of his appointment. It was, therefore, held by the Tribunal that the petitioner had to await his turn for promotion on the basis of his seniority and eligibility. The original application was, therefore, dismissed. 6. Heard learned counsel for the petitioner and the leaned counsel appearing for respondents 1 to 4 as well as the learned counsel for the 5[th] respondent. 7. It is contended by Advocate Sri.P.V.Mohanan, learned counsel for the petitioner, that the petitioner being a member of 5 _**WP(C).34830/09**_ the Scheduled Tribe is entitled to claim reservation in the matter of promotion as well, as provided in Articles 16(4A) and 16(4B) of the Constitution of India. The respective Governments were enabled by constitutional amendments to enact laws to provide for relaxation of the norms for appointment in respect of candidates belonging to the reserved categories. In the above circumstances, it is submitted that the petitioner ought to have been granted promotion as Chargeman Grade-II in the carried forward vacancy of Scheduled Tribes which was available in the vacancy based roster by relaxing the rigor of the rules before such carried forward vacancy elapsed. In support of his claim, the petitioner placed reliance on _**R.K.Sabharwal and others v. State of Punjab and others**_ [(1995)2 SCC 745], _**M.G.Badappanavar and another v. State of Karnataka and others**_ [(2001)2 SCC 666], _**Ajit Singh and others v. State of Punjab and others**_ [(1999)7 SCC 209] and _**M.Nagaraj and others v. Union of India and others**_ [(2006) 8 SCC 212]. The learned counsel relied on the provisions of Articles 16(4A), 16(4B) and 335 of the Constitution of India to contend that the petitioner is entitled to relaxation in qualification and eligible criteria. It is _**WP(C).34830/09**_ 6 contended that the State has been empowered to make reservation in the matter of promotion as also to provide for relaxation of norms to enable the proper implementation of the principles of reservation in favour of unrepresented communities. It is therefore contended by learned counsel for the petitioner that the respondents ought to have filled up the carried forward vacancy from the vacancy based roster by appointing the petitioner in relaxation of the qualifications. 8. We have considered the contentions advanced. The petitioner is a person, who became fully qualified for promotion to the post of Chargeman Grade-II, only with effect from 30.7.2004. He admits that the point reserved for Scheduled Tribe candidates in the post based roster comes only at point No.14. It is also admitted that when the carried forward vacancy from the vacancy based roster lapsed, the petitioner had not yet become qualified for appointment. 9. Articles 16(4A) and 16(4B) of the Constitution of India are only enabling provisions, which read as follows: _**“16. Equality of opportunity in matters of public employment.**_ _xx xx xx_ 7 _**WP(C).34830/09**_ _(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State._ _(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”_ 10. The proviso to Article 335 of the Constitution inserted by the Constitution (Eighty-second Amendment) Act, 2000 provides that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. 8 _**WP(C).34830/09**_ 11. Construing the constitutional provisions, the Constitution Bench of the Apex Court in _**M.Nagaraj's case (supra)**_ held that the power under Article 335 of the Constitution could be exercised only on the basis of quantifiable data and it is for the State concerned to decide in a given case where overall efficiency of the system is effected by the relaxation. It was further held that the interest of efficiency of the system had not been given a go by by the Constitutional Amendments and such efficiency would be of prime importance while considering the necessity for relaxation of standards. 12. As sated earlier, Articles 16(4A) and 16(4B) as well as the provisos to Article 335 are but enabling provisions. The petitioner has no case that the State or the employer had ever exercised the power available under the proviso to Article 335 of the Constitution of India and issued orders relaxing the qualification to be possessed by candidates belonging to the Scheduled Castes or Scheduled Tribes for promotion to the post in question. It is admitted that the petitioner had acquired necessary qualifications only in 2004. It is also admitted that his claim for promotion in accordance with the currently operated post based 9 _**WP(C).34830/09**_ roster would arise only at point No.14. In the absence of any pleading as to any orders passed relaxing the qualifications in respect of Scheduled Tribes candidates for promotion, we are of the view that the claim raised by the petitioner for promotion on any date earlier than his date of acquisition of qualification is completely unfounded. The order of the Tribunal denying the benefit claimed by the petitioner cannot, therefore, be said to be illegal or perverse. In the absence of any order issued by the competent authorities relaxing the qualification, we are also of the view that the petitioner's claim for appointment as against the vacancy which arose in 1999 cannot be accepted, as the petitioner was not qualified as on such date. The writ petition, therefore, fails. The same is accordingly dismissed. **P.R.RAMACHANDRA MENON JUDGE** **ANU SIVARAMAN JUDGE** _vgs_