1. In this second round of litigation, 19 applicants, Inspectors Customs and Central Commissionerate, Delhi who belong to Scheduled Tribe Community, have sought following relief:
i) Call for the records and declare, quash and set aside the actions, omissions and orders of the respondents in not providing for separate zone of consideration for SC/ST candidates and more specifically the ST applicants separate from a non-reserved candidates in the matter of promotions and also in refusing to or failing in complying with and implementing the judgment and orders of this Hon'ble Tribunal dated 19.5.2005 in OA No.688 of 2005 as also the determination of law and directions issued by the Hon'ble Supreme Court relating to the said separate zone of consideration as mentioned in the present OA as illegal, malafide, arbitrary, unreasonable and violative of the fundamental rights of the applicants under Article 14, 16 and 21 of the Constitution of India.
ii) Declare that the OM dated 6/1/20056, vide Annexure-I, issued by respondent No.3 is illegal, arbitrary and violative of the fundamental rights of the applicants and the above mentioned orders of this Hon'ble Tribunal and the Hon'ble Supreme Court to the extent it has omitted and refused to provide for separate zone of consideration for SC/ST candidates like the applicants.
iii) Direct the respondents to implement and comply with the judgment and order dated 19.10.2005 in OA No.688 of 2005 immediately and without any further delay.
iv) Direct the respondents to pay exemplary costs to the applicants for the impugned actions and orders.
v) Pass such other further order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Admitted facts are that on an earlier occasion, applicants instituted OA 688/2005 seeking direction to respondents to consider them for promotion to the post of Superintendents against backlog vacancies earmarked to their community. They had also questioned communication dated 4.2.2005 as well as sought restraining respondents from de-reserving said backlog vacancies. It was admitted fact that they had completed 8 years regular service in the grade of Inspectors and were eligible for promotion. DOP&T OM dated 26.8.2004 instructed to all Ministries to hold special drive to fill up backlog vacancies reserved for SC/ST. 29 vacancies were earmarked as backlog vacancies in the grade of Superintendent meant for ST community. A draft seniority list was published on 21.9.2004. By order dated 31.12.2004, certain Inspectors were promoted to officiate in said grade. They made representations to fill up backlog vacancies under the special drive of DOP&T, which request had been turned down vide communication dated 4.2.2005 stating that officers, applicants who joined Central Excise Delhi Zone and Inspectors on inter-Commissionerate on transfer basis in 2003 were junior to be included even in the extended zone of consideration. Applicants contention was based on the judgment of Hon'ble Supreme Court C.D. Bhatia v. Union of India in SLP No.14568-69/95 decided on 20.10.1995, which reads:
We have heard learned Counsel for the parties. Learned Counsel for the petitioners has raised only one contention to the effect that there has to be separate zone for consideration so far as SC/ST candidates are concerned. According to him, clubbing the schedule caste with the general category in the case of zone of consideration would defeat the very purpose of reservations. He relies of this Court's judgment in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh v. U.P. State Electricity Board and Ors. CA No.4026/88 decided on November 23, 1994. This precise point was not raised before the Tribunal. The point was sought to be raised in a review petition but the Tribunal did not permit the same to be raised at that stage. We see no ground to interfere with the impugned judgment of the Tribunal.
We are, however, of the view that the law laid down by this Court in U.P. Rajya Vidyut Parishad's case is binding on all the authorities including the Union of India. The petitioner may, if so advised, approach the Government seeking enforcement of the law laid down by this Court. Special Leave Petitions are disposed of.
3. The respondents, on the other hand, had relied upon DOP&T OM dated 12.10.1990, as amended in the year 1997 on the subject of zone of consideration for promotion and stated that for selection post where adequate number of SC/ST are not available within the normal field of choice, the filed would have to be extended by five times of the number of vacancies as an extended zone of consideration but not beyond that. After considering all aspects of the case, Vide order dated 19.10.2005 this Tribunal disposed of aforesaid OA with following observations:
In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs.
4. Respondents vide order dated 30.6.2005 had promoted 42 officials on officiating basis in the grade of Superintendents Grade 'B' in the pay scale of Rs.7500-12000/-. Subsequently, vide order dated 20.6.2006 as many as 20 officials were promoted to said grade, ignoring applicants.
5. Their grievance had been that despite aforesaid order passed by this Tribunal, respondents have refused to provide separate zone of consideration for SC/ST to determine their eligibility condition for promotional post of Superintendent. Said backlog vacancies in the grade of Superintendent meant for ST category remain unfilled despite the fact that applicants had completed 8 years regular service, as prescribed under Recruitment Rules in vogue. If separate zone of consideration is determined, all of them would fall within the zone of consideration. It has not been done despite the mandate & direction of this Tribunal & their representations remain unconsidered. Even communication addressed by National Commission for Scheduled Tribes remains unheeded. On the other hand, DOP&T OM issued dated 6.1.2006 providing guidelines for reviewing the size of zone of consideration, Dr. M.P. Raju, learned Counsel appearing for applicants vehemently urged that DOP&T OM dated 30.4.83 on the same subject remains in-force and has been breached deliberately and purposely. Moreover, it is settled law as laid down in Anil Ratan Sarkar and Ors. v. State of West Bengal and Ors. that administrative instructions cannot infiltrate on the arena covered by judicial orders. Learned Counsel further maintained that judgment in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh (supra) remains binding and has to be implemented in letter and spirit. It was further urged that respondents have not challenged Tribunal's order dated 19.10.2005, OA 688/2005, and as such the findings recorded therein attained finality.
6. Respondents by filing their reply contested the claim laid stating that applicants are seeking multiple reliefs, which are impermissible in terms of Rule 10 of the CAT (Procedure) Rules, 1987. On merits, it was stated that respondents action is in consonance with the rules and instructions. DOP&T OM dated 6.1.2006 under challenge is a conscious policy decision and cannot be challenged. The reserved category (ST officials) would not be considered for promotion in the years 2004-05 as they completed their eligibility period very recently and were not within the zone of considerations because they were 'too junior in the seniority list'. All the eligible Inspectors of ST category have already been promoted to said grade. Furthermore, no eligible and fit candidates had been denied such promotion in the entire seniority list of Inspectors. Applicants have only right of consideration and that too meant for within the zone of considerations/extended zone of considerations but not in separate zone of consideration.
7. By filing rejoinder applicants reiterated the plea raised by them in OA.
8. We have heard learned Counsel for parties and perused the pleadings carefully.
9. Coming to preliminary objections raised by respondents about multiple reliefs, we may note that on perusal of reliefs claimed, we are of the considered view that reliefs prayed are consequential in nature and do not amount to seeking multiple reliefs, as prayed for. As far as plea raised about DOP&T OM dated 6.1.2006 is concerned, on perusal of it, we find justification in the contention raised by applicants that the same did not overrule earlier DOP&T OM dated 30.4.83, which basically deals with adhoc promotion to SC/ST employees and provides that if the number of SC/ST candidates found fit within the range of actual vacancies is less than the number of vacancies identified as falling to their share if the vacancies were filled on a regular basis, additional SC/ST candidates to the extent required should be located by going down the seniority list, provided they are eligible and found fit for such ad hoc appointment. Subsequently, Department of Personnel and Administrative Reforms issued O.M. No. 36011/1483-Estt.(SCT), dated 30-09-1983 whereby the extended zone of consideration for SCs/STs in the case of ad hoc promotions was restricted to 5 times the number of vacancies being filled on a particular occasion. Since subsequent OM dated 30.9.83 had been quashed by Hon'ble Supreme Court in its judgment dated 7.9.2000 in the case of Union of India and Ors. v. Shri Basudeo Anil and Ors. Civil Appeal No. 1194/1992, it was withdrawn vide DOP&T OM dated 15.3.2002. However, earlier OM dated 30.4.83 remains in-force, as prescribed under Para-2 thereof, which reads:
Thus, claims of the Scheduled Caste/Scheduled Tribe candidates in the matter of ad hoc promotions would henceforth be regulated as per instructions contained in Department of Personnel and Administrative Reforms O.M. NO. 36011/14/83-Estt. (SCT), dated 30-04-1983.
In these circumstances, as we are of the view that DOP&T OM dated 30.4.83 has not been overruled, & same principle would be applicable to determine the zone of considerations for SC/ST vacancies. Moreover, we may notice that under Para-iii of OM dated 6.1.2006, it has been reiterated that: existing size of extended zone of consideration for SC/ST officers, viz. five times the total number of vacancies, will continue to be applicable.
10. On our query raised as to what steps were taken by respondents to comply with the aforenoted direction contained vide order dated 19.10.2005, we were not informed of any steps taken to comply with said directions. Even counter affidavit filed by respondents do not at all provide the detail & the steps taken to comply with said directions. In these circumstances, we would be justified to draw inescapable and inevitable conclusion that no steps were undertaken to comply with direction of this Tribunal order dated 19.10.2005, what to talk of reasonable exercise. We may further note the fact that Shri R.V. Sinha, learned Counsel did not dispute the fact that the judgment of Hon'ble Supreme Court in U.P. Rajya Vidyut Parishad's case (supra) was followed in C.D. Bhatia, and the said law holds the field even on date. Learned Counsel for respondents relying upon , Ekta Shakti Foundation v. Govt, of NCT of Delhi try to emphasize that while exercising the power of judicial review of administrative action, the Court/Tribunal cannot act as an appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power.
11. On bestowing our careful consideration to all aspects of the case as noticed hereinabove, we fail to find any justification and reasonability in the respondents action/ inaction in not complying with the direction issued by this Tribunal order dated 19.10.2005 in OA 688/2005 when it was particularly noticed that Hon'ble Supreme Court judgment in aforementioned cases i.e. U.P. Rajya Vidyut Parishad and C.D. Bhatia's cases (supra) clearly maintained to constitute separate zone of consideration for SC/ST and not to club the said category with general category so that the very purpose of reservation is maintained and fulfilled. We may observe that Union of India has shown scant regard to settled law on the subject and failed to carry out direction without any reason & justification. The State being a welfare state, in fairness, was expected to act in accordance with law and not to circumvent it.
12. Reiterating directions issued earlier, as clarified further, OA is allowed. We direct the respondents to fill up those 29 posts in the grade of Superintendent Grade 'B' meant for ST community by determining separate zone of consideration to said category, within a period of three months from the date of receipt of a copy of this order. In the circumstances noticed hereinabove, we are of the view that it a fit case where costs should be imposed upon Government, which is quantified at Rs. 5000/ (Rupees five thousand only) to be paid to Delhi Legal Services Authority, New Delhi.