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27.08.2010
W.P.C.T. 261 of 2008
C.A.N. 3238 of 2010
Mr. Joydeep Kar,
Mr. Nilay Sengupta,
… For the petitioners.
Mr. Farook M. Razack, A.S.G,
Mr. Pratip Kumar Chatterjee,
Mr. Swapan Dutta
… For the Union of
India.
____________
Heard the learned Advocates appearing for the parties. A recent office memorandum issued from the Ministry of Personnel, Public Grievances and Pensions Department of Personnel
and Training, Government of India dated 10th August, 2010 has been placed before us. In terms of the said circular, the judgment passed in the case R.K. Sabharwal and others vs. State of Punjab and others reported in (1995) 2 SCC 745, which earlier was intended to be
implemented by O.M. No. 36028/17/2001-Estt. (Res.) dated 31st January, 2005, stood modified by withdrawing the said circular letter and clarifying the issue that implementation of the said judgment of R.K. Sabharwal and others vs. State of Punjab and others should be
done with effect from 2nd July, 1997 by giving effect of the office memorandum effective from 2nd July, 1997. This office memorandum reads such:- “Subject: Reservation in promotion – Treatment of SC/ST candidates promoted on their own merit.
------------
The undersigned is directed to refer to this Department’s O.M. No. 36028/17/2001-Estt. (Res.) dated 11th July, 2002 which
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clarified that SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will be adjusted against un-reserved points of the
reservation roster and not against reserved points. It was subsequently clarified by this Department’s O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 that the above referred
O.M. took effect from 11.7.2002 and that concept of own merit did not apply to the promotions made by non-selection method. 2. Central Administration Tribunal, Madras Bench in O.A. NO. 900/2005 (S. Kalugasalamoorthy v/s. Union of India & Others) has set aside the O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 and held that when a person is selected on the basis of his own seniority, the scope of consideration and counting him against quota reserved for SCs does not arise. The High Court of judicature at Madras in the matter of UOI v/s. S. Kalugasalamoorthy (W.P. No. 15926/2007) has upheld the decision of the Central Administrative Tribunal.
3. The matter has been examined in the light of the above referred judgments and it has been decided to withdraw O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 referred to above. It is clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owning to reservation or relaxation of qualifications will be adjusted against
unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders will take effect from 2.7.1997, the date on which post based reservation was introduced. 4. These instructions may be brought to the notice of all concerned.” Having regard to said office memorandum the learned Additional Solicitor General very frankly has submitted that the respondent in the instant case is agreeable to implement office memorandum dated 10th August, 2010, in respect of the present case is
concerned. The present lis was brought by the writ petitioners before the learned Central Administrative Tribunal below seeking implementation of the review DPC as held on 9th September, 2004 giving effect of the judgment delivered in R.K. Sabharwal (supra) on
considering the effective date of implementation as 2nd July, 1997 and 3 praying order/direction to withdraw, rescind, cancel and set aside the subsequent review DPC dated 7th October, 2005.
The learned Advocate for the writ petitioner, however, has contended before us by filing a supplementary affidavit wherein a judgment of Central Administrative Tribunal has been annexed including the order passed by the Delhi High Court allowing withdrawal of the writ application, to this effect that the judgment delivered in R.K. Sabharwal (supra) is a judgment in rem and a judgment under Article 141 of the Constitution of India being the law of the land was required to be implemented by the respondents herein by giving effect of implementation memo from 10th February, 1995, the date of judgment passed in R.K. Sabharwal (supra). In fact, it is the contention of the learned Advocate for the writ petitioner for the first time in this writ Court that the effective date of the judgment passed in R.K. Subharwal (supra) cannot be modified, changed and varied by any executive decision as that would be nothing but an action to sit over the views expressed in the R.K. Sabharwal (supra) which is a judgment under Article 141 of the Constitution of India, a binding order and judgment upon all the Courts, Tribunals and the statutory authorities all over India. Learned Advocate for the writ petitioner, accordingly, prays
leave by filing an application seeking amendment of the original writ application to incorporate a prayer so that the writ petitioner would be given benefit of the judgment of Apex Court by making a fresh review DPC in the angle of issue as finalised in R.K. Sabharwal (supra) by
giving its effect from 10th February, 1995. This submission of the learned Advocate has been opposed by the learned Additional Solicitor General by contending inter alia that in the present writ application which is an outcome of the jurisdictional contour detailed and confined
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in terms of the judgment passed in the case L. Chandra Kumar vs. Union of India reported in AIR 1997 SC page 1125 adjudicatory field cannot be extended further incorporating any new prayer with new pleadings which were not taken before the learned Tribunal below. This
issue is a contentious issue. This point to be heard, if any, application for amendment is filed by the writ petitioner. Since at the present moment respondents are facing problem to provide the promotional berth to many candidates who may retire very soon and on that fact a
prayer has been made to allow implementation of the decision of review DPC dated 9.09.2004 by giving its effect from 2nd July, 1997, on the basis of the office memorandum dated 10th August, 2010 as already quoted above. Considering the prayer, in modification of our earlier interim order as passed, we are passing the interim order to this effect that the respondents would be at liberty to implement the office memorandum dated 10th August, 2010 which means to decide the promotional issue by implementing the decision of the review DPC held on 9th
September, 2004 by giving its effect from 2nd July, 1997 and thereby to provide respective promotional berth to the respective candidates who would come within the zone of consideration on the basis of review DPC decision dated 9th September, 2004 without prejudice to the writ
petitioner’s contention as urged today and for which appropriate amendment application would be filed by them as submitted by the learned Advocate for the writ petitioner. It is made clear that in terms of the interim order any promotion or adjustment of the staff as to be made will abide by the result of this writ application.
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It is made clear that the decision of the review DPC of 9th September, 2004 should be given effect to by considering the effect of such DPC from 2nd July, 1997 and on that basis promotion orders to be issued and further promotion could be dealt with. It is further made clear to avoid any confusion that first promotion order to be made on the basis of review DPC of 9th
September, 2004 and thereafter further promotion of candidates under all India zones would be considered. Let this matter appear two weeks hence in the list. Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates appearing for the parties on usual undertaking.
(Pratap Kumar Ray, J.)
(Mrinal Kanti Sinha, J.)
27.08.2010
W.P.C.T. 261 of 2008
C.A.N. 3238 of 2010
Mr. Joydeep Kar,
Mr. Nilay Sengupta,
… For the petitioners.
Mr. Farook M. Razack, A.S.G,
Mr. Pratip Kumar Chatterjee,
Mr. Swapan Dutta
… For the Union of
India.
____________
Heard the learned Advocates appearing for the parties. A recent office memorandum issued from the Ministry of Personnel, Public Grievances and Pensions Department of Personnel
and Training, Government of India dated 10th August, 2010 has been placed before us. In terms of the said circular, the judgment passed in the case R.K. Sabharwal and others vs. State of Punjab and others reported in (1995) 2 SCC 745, which earlier was intended to be
implemented by O.M. No. 36028/17/2001-Estt. (Res.) dated 31st January, 2005, stood modified by withdrawing the said circular letter and clarifying the issue that implementation of the said judgment of R.K. Sabharwal and others vs. State of Punjab and others should be
done with effect from 2nd July, 1997 by giving effect of the office memorandum effective from 2nd July, 1997. This office memorandum reads such:- “Subject: Reservation in promotion – Treatment of SC/ST candidates promoted on their own merit.
------------
The undersigned is directed to refer to this Department’s O.M. No. 36028/17/2001-Estt. (Res.) dated 11th July, 2002 which
2
clarified that SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will be adjusted against un-reserved points of the
reservation roster and not against reserved points. It was subsequently clarified by this Department’s O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 that the above referred
O.M. took effect from 11.7.2002 and that concept of own merit did not apply to the promotions made by non-selection method. 2. Central Administration Tribunal, Madras Bench in O.A. NO. 900/2005 (S. Kalugasalamoorthy v/s. Union of India & Others) has set aside the O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 and held that when a person is selected on the basis of his own seniority, the scope of consideration and counting him against quota reserved for SCs does not arise. The High Court of judicature at Madras in the matter of UOI v/s. S. Kalugasalamoorthy (W.P. No. 15926/2007) has upheld the decision of the Central Administrative Tribunal.
3. The matter has been examined in the light of the above referred judgments and it has been decided to withdraw O.M. No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 referred to above. It is clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not owning to reservation or relaxation of qualifications will be adjusted against
unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders will take effect from 2.7.1997, the date on which post based reservation was introduced. 4. These instructions may be brought to the notice of all concerned.” Having regard to said office memorandum the learned Additional Solicitor General very frankly has submitted that the respondent in the instant case is agreeable to implement office memorandum dated 10th August, 2010, in respect of the present case is
concerned. The present lis was brought by the writ petitioners before the learned Central Administrative Tribunal below seeking implementation of the review DPC as held on 9th September, 2004 giving effect of the judgment delivered in R.K. Sabharwal (supra) on
considering the effective date of implementation as 2nd July, 1997 and 3 praying order/direction to withdraw, rescind, cancel and set aside the subsequent review DPC dated 7th October, 2005.
The learned Advocate for the writ petitioner, however, has contended before us by filing a supplementary affidavit wherein a judgment of Central Administrative Tribunal has been annexed including the order passed by the Delhi High Court allowing withdrawal of the writ application, to this effect that the judgment delivered in R.K. Sabharwal (supra) is a judgment in rem and a judgment under Article 141 of the Constitution of India being the law of the land was required to be implemented by the respondents herein by giving effect of implementation memo from 10th February, 1995, the date of judgment passed in R.K. Sabharwal (supra). In fact, it is the contention of the learned Advocate for the writ petitioner for the first time in this writ Court that the effective date of the judgment passed in R.K. Subharwal (supra) cannot be modified, changed and varied by any executive decision as that would be nothing but an action to sit over the views expressed in the R.K. Sabharwal (supra) which is a judgment under Article 141 of the Constitution of India, a binding order and judgment upon all the Courts, Tribunals and the statutory authorities all over India. Learned Advocate for the writ petitioner, accordingly, prays
leave by filing an application seeking amendment of the original writ application to incorporate a prayer so that the writ petitioner would be given benefit of the judgment of Apex Court by making a fresh review DPC in the angle of issue as finalised in R.K. Sabharwal (supra) by
giving its effect from 10th February, 1995. This submission of the learned Advocate has been opposed by the learned Additional Solicitor General by contending inter alia that in the present writ application which is an outcome of the jurisdictional contour detailed and confined
4
in terms of the judgment passed in the case L. Chandra Kumar vs. Union of India reported in AIR 1997 SC page 1125 adjudicatory field cannot be extended further incorporating any new prayer with new pleadings which were not taken before the learned Tribunal below. This
issue is a contentious issue. This point to be heard, if any, application for amendment is filed by the writ petitioner. Since at the present moment respondents are facing problem to provide the promotional berth to many candidates who may retire very soon and on that fact a
prayer has been made to allow implementation of the decision of review DPC dated 9.09.2004 by giving its effect from 2nd July, 1997, on the basis of the office memorandum dated 10th August, 2010 as already quoted above. Considering the prayer, in modification of our earlier interim order as passed, we are passing the interim order to this effect that the respondents would be at liberty to implement the office memorandum dated 10th August, 2010 which means to decide the promotional issue by implementing the decision of the review DPC held on 9th
September, 2004 by giving its effect from 2nd July, 1997 and thereby to provide respective promotional berth to the respective candidates who would come within the zone of consideration on the basis of review DPC decision dated 9th September, 2004 without prejudice to the writ
petitioner’s contention as urged today and for which appropriate amendment application would be filed by them as submitted by the learned Advocate for the writ petitioner. It is made clear that in terms of the interim order any promotion or adjustment of the staff as to be made will abide by the result of this writ application.
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It is made clear that the decision of the review DPC of 9th September, 2004 should be given effect to by considering the effect of such DPC from 2nd July, 1997 and on that basis promotion orders to be issued and further promotion could be dealt with. It is further made clear to avoid any confusion that first promotion order to be made on the basis of review DPC of 9th
September, 2004 and thereafter further promotion of candidates under all India zones would be considered. Let this matter appear two weeks hence in the list. Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates appearing for the parties on usual undertaking.
(Pratap Kumar Ray, J.)
(Mrinal Kanti Sinha, J.)
10 comments:
Dear office bearers,
the posting of the interim order on the site is belated and meaningless. Almost all the interested members had gone through the order either on the hyderabad customs blog site/ the calcutta high court website. Instead of wasting time on such trivial matter, take up the matter with the Board urgently and cause to issue the promotion orders immediately. If the office bearers are still unwilling to act, MEMBERS PLEASE UNITE and plead before the local Chief Commissioners so that they will take up the matter with the Board and cause to end the stalemate. The Office bearers instead of keeping mum should inform the members of the action if any taken, since the issue of the interim order, to end the stalemate. It now seems that the Bosses are better than the office bearers.
I agree with both Mr.Singh and Mr. Surya. It is high time for the office bearers to wake up and take up the issue with the CBEC urgently and expedite promotions.
Only the President Sh.Zachariah seems to be taking all the pains.Silence of Our Kolkata based GS when expectations were very high from him for being local,is surprising and intiguing.Mr.GS pls.come out of slumber and contribute ur mite or make way for some one else if u have tired.I also request all the Zonal Presidens and the General secreaties to take up the matter vehimentally with their respective Chief Commissioners without any loss of time alongwith the National Office bearers simultaneously,who must pursue the case with the CBEC Chairman.
Yes, as opined by our colleagues above, our leaders should immediately swing into action and see that orders are issued immediately. The judgement put on the site is very clear now. Judgement clearly states that effect be given from 2.7.1997 (which also applies to calcutta zone only. It has no bearing for other zones as they are in the right track only and the judgement would in no way forbid the other CCAs to convene DPC (which would have already done) and promote the inspectors to Supdts. So now there is no point in simply waiting for anything to happen at Calcutta. The other zones are in no way connected to this issue. Happened is happened. We have already done the blunder by wasting time (for almost three months) by not waking up to the situation and making understand the board the ground reality. Therefore v all should come out of the out of the present embrangle and as a whole team (without finding fault with others for meagre gain as has been doing through the blog)fight to the last to achieve our rightful claim soon. I am still doubtful, whether the board is aware of the latest happenings...the facts should immediately brought to the notice of the board by the AICEA leaders and see that the orders are out by the week end.
The need of hour from the Executive members at the helm of association is to remind Chairman, CBEC telephonically to issue letter immediately to all cadre controlling authorties for carrying out DPC in the grade of Superintendent in the light of Calcutta High court judgment dated 27.8.2010 and in reference to letter of the President,AICEIA dated 30.8.2010.After telephonic talk with Chairman, CBEC, the feedback may immediately be given to the members as the stalemate has become unbearable.
It has all along my understanding that it was never the court's intention to stay the promotion of Inspector to Superintendent. However, the Board in its wisdom has ordered for the stoppage of the same. It is but justice that the promotions of Inspectors should be effective from 24.03.2010, i.e., the date on which the DPC was supposed to be held (in Chennai Zone). The Board by its orders has infringed upon the Inspectors right to be considered for promotion which is a fundamental right. AICEIA is requested to take up this matter earnestly, at least at this juncture. It has also been rumoured that the review of seniority may take up an inordinate amount of time in view of the complexeties involved and as such effecting ad hoc promotions would be appropriate.
I again urge to the office bearers of the association that matter may be taken up today positively i.e 8.9.2010 teliphonically with the Chairman, CBEC for giving nod for promotions in the grade of Superintendent immediately even on adhoc and should not shy away to take up the matter as they have been representing huge force of Inspectors of 93 Central Excise Commissionerates and 37 Customs Commissionerates.The backing of such a force can win any war against enemy, though here the fight is for rights and within family. Strength is life and weakness is death.
CALCUTTA HIGH COURT
APPELLATE SIDE
DAILY CAUSELIST
(For 04th, January, 2011 )
COURT NO. 14
HON'BLE JUSTICE PRATAP KUMAR RAY
HON'BLE JUSTICE MRINAL KANTI SINHA
1. WP.CT 261/2008 SAMIRAN ROY & ORS Vs NILAY SENGUPTA
CAN 3238/2010 UNION OF INDIA & ORS
CAN 8207/2010
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