Jammu, Nov 08: In O.A. No. 1610/2022 titled Mohd. Parvaij represented by Advocate F A Natnoo Versus 1. U.T of J&K Through Commissioner/Secretary to Government Health & Medical Education Department & ors DB of CAT ordered as under:-
1. The applicant through the medium of the present Original Application has challenged the Impugned Order No. DHSJ/Legal/10645-49 dated 03-11-2022 issued by the respondent No. 2 i.e. Director Health Services Jammu, whereby on compliance of the order dated 17-05-2022 passed by this Tribunal in TA No. 8495/2020, the case of the applicant for the purpose of allowing him the consideration for promotion as Head Assistant under reserved category of Social Caste (SLC) has been rejected.
2. The facts of case in nutshell are that the applicant in the year 2008, being aggrieved of his ouster from the process undertaken by the respondents for promotion of persons as Head Assistant including one Smt. Chandrakanta has approached the Hon’ble High Court by way of filing SWP No. 380/2008 titled Mohd Parvez vs State & Ors. seeking quashment of order no.1001-NG of 2007 dated 24-12-2007 whereby said Smt. Chandrakanta who otherwise was figuring in the seniority list at S. No. 10 was shown promoted as Head Assistant in SOC category, the aforesaid Writ Petition came to be transferred before this Tribunal and was numbered as TA 8495/ 2020, which ultimately came to be disposed of by this Tribunal vide order dated 17-05-2022 with the following directions :-
“In view of the above submission TA No. 61/8495/2020 is disposed of directing the respondents to consider copy of this OA as representation of the applicant as per relevant provisions of applicable rules for reservation in promotion for various categories and :: 4 :: O.A. No. 1610/2022 also in view of the supreme court decision in RK Sabarwal (Supra )”.
3. The respondents in compliance of the order of this Tribunal consideration the case of the applicant, however, vide order impugned order has rejected the case of the applicant.
4. It has been stated in the O.A. that the respondents by promoting the said Smt. Chandrakanta under SOC Category instead of in the General Category on the strength of her own seniority have deprived the applicant herein of his right of consideration for promotion against 1% quota reserved for SOC Category and even the order impugned issued by the respondent no.2 is also contrary to the factual position, reservation rules as well as settled legal position on the point.
5. Learned counsel for the applicant further contended that once the respondents had promoted twenty Senior Assistants in the ascending order of seniority list, then in terms of rules and law laid down by the Hon’ble Apex Court on the point, Smt Chandrakanta who though was shown at S. No. 11 in the seniority list but when the said seniority position is to be read with one Ghulam Mohd Bhat, who admittedly was the senior most and falling at S. No. 01 and admittedly was later on promoted also, based on his seniority position at Number 01, there was no occasion for the respondents to bring said Smt. Chandrakanta at S.No.10 for the purpose of promotion under reserved quota meant for SLC, which according to the Ld. Counsel should have been allowed to the applicant in view of his belonging to the reserved category of SLC. In support of his contentions the learned counsel has referred to Rule 11 of SRO 294 of 2005 as well the observation of the Hon’ble Supreme Court in case reported as AIR 1995 SC 1371 titled R.K. Sabharwal Vs Sate of Punjab. 6. Learned counsel for respondents in their reply have stated that the promotion allowed to Smt. Chandarkanta was made against the reserved slot of SOC, as such, the case of the applicant has been found devoid of any merit and has rightly been rejected.
7. Heard learned counsel for the parties and perused the record.
8. Indisputably, the respondents have promoted twenty Senior Assistants to the next post of Head Assistant on the basis of seniority. It is also an undisputed fact that one Ghulam Mohd was senior most amongst the twenty senior assistants but was somehow, missing from the consideration list and was admittedly allowed promotion later on but in view of his seniority position at No. 1. It is thus only because of his not showing in the consideration list, Smt. Chanderkanta was incidentally shown at S. No. 10 and not because of her being pushed above in view of allowing benefit of reservation, which could even otherwise not have been done because the available posts being twenty in number and the position assigned to said Smt. Chandarkanta in the seniority list made her entitled for consideration for promotion under general category and without even allowing benefit of reservation of Social caste category.
9. As per rule 11 of SRO 295 of 2005, the respondents are required to prepare select list for promotion as per the procedure envisaged therein, which reads as under:- “
.......Rule 11. Preparation of select list for promotion (1) The selection authority shall draw up in order of seniority/merit, as the case may be, a consolidated list of all the eligible candidates irrespective of category to which they belong. The list shall show classification of the candidates category-wise.
(2) The selection authority shall then prepare from out of the first list, a second list containing the names of candidates equal in number to the total number of un-reserved vacancies to be filled up by promotion arranging them in order of merit/seniority in the feeding Cadre commencing with the first name in the first list (hereinafter called second list). If there are no reserved vacancies, then the second list shall constitute the select list subject only to the provisions of sub- rule (5).
(3) If there are reserved vacancies as well, the selection authority shall next prepare from out of the portion of the first list remaining after excluding the portion corresponding to the second list, a third list containing the names separately of as many candidates, from each of the categories, as the number of vacancies, respectively reserved for them, arranging the candidates from each category in order of their interse merit/seniority in the feeding cadre (hereinafter called third list).
The said third list added to the second list shall in such case constitute the select list, subject only to the provisions of sub-rule (5).
(4) If in the case of any of the aforesaid categories the number of eligible candidates belonging to such category in the third list fall short of the number of vacancies reserved for it, the remaining vacancies reserved for such category shall be treated as un-reserved and the selection authority shall prepare a fourth list containing the names of the candidates equal in number of remaining vacancies arranged in order of merit/seniority in the feeding cadre from out of the portion of the first list remaining after excluding the portion of the first list corresponding to the second and the third (hereinafter called fourth list).
The fourth list added upto the second and the third lists shall in that event constitute the select List subject only to the provisions of sub-rule (5).
(5) The list as finally settled by conforming to sub- rules (1) to (4) above shall constitute the list of candidates finally selected for appointment by promotion to any particular service, category, class or grade, as the case may be, for which such promotion is made at a time.
(6) The placement of an officer in selection grade does not result in a vacancy and roster will not apply in such cases: Provided that the category candidates in the zone of consideration may be considered for selection grade by relaxed standards.......”
10. The Hon’ble Supreme Court in case reported as AIR 1995 SC 1371 titled RK Sabharwal vs State of Punjab has in clear terms held that the prescribed percentage for reserved categories cannot be varied or changed simply because some members of backward class have already been promoted against general seats. The relevant extract of the judgment, relied upon by Mr. Natnoo is reproduced as under:- “
....... The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the members of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class.
The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointees /promotes belonging to the backward classes against the general category posts the given percentage has to be provided in addition.......”
11. In view of the aforesaid rule position as well as pronouncement of the Hon’ble Supreme Court, it is clear that the action of the respondents in depriving the applicant for his consideration for promotion at the relevant point of time under the reserved quota of 1% meant for Social Caste category is grossly arbitrary and illegal and hence the same cannot sustain in law.
12. In view of the above discussions and facts and circumstances of the case this OA is disposed of with following directions:
i. The impugned order No. DHSJ/Legal/10645-49 dated 03-11-2022 issued by respondent No. 2 is quashed and set-aside.
ii. Respondent No.2 is directed to promote the applicant as Head Assistant keeping in view his eligibility and entitlement at the relevant point of time when the promotions were affected with all consequential benefits excluding the monetary benefits.
iii. The whole exercise as above shall be completed immediately, preferably within two months from the date of receipt of certified copy of this order.
13. No order as to costs.
(RAJINDER SINGH DOGRA) (B ANAND) MEMBER (J) MEMBER (A)
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