CHAPTER II

 

Seniority of SC/ST officers promoted earlier vis-à-vis general candidate promoted later.

 

            OFFICE MEMORANDUM DATED THE 30TH JANUARY, 1997.

 

2.1       According to the general principle 5(1) contained in MHA No.9/11/55-RPS dated 22.12.1959 and para 2.2. of DOPT OM No.22011/7/86-Estt.(D) dated 3.7.1986 read with DOPT OM No.2011/5/90-Estt.(D) dated 4.11.1992,  seniority of a person regularly appointed to a post  would be determined by the order of merit indicated at the time of initial appointment and the seniority of persons promoted to various grades shall be determined in the order of selection for such promotion.  Thus, persons  appointed through an earlier selection will en bloc be senior to those promoted through subsequent selection.

 

2.2       The Supreme Court in the case of Union of India Vs Virpal Singh Chauhan etc. in its Judgement on 10.10.1995 held as follows :-

 

Even if SC / ST candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the Senior general candidate regains his seniority over such earlier promoted SCs/STs candidate.  The earlier promotion of the SC/ST candidate in such a situation does not confer upon him seniority over the general candidates even though the general candidates is promoted later to that category.

 

2.3       Having regard to the above Judgement of the Supreme Court, DOPT decided to modify the existing policy of fixing seniority on promotion.  Accordingly, an Office Memorandum with following provisions added to general principles 5(1) contained in MHA (now Department of Personnel & training) Office Memorandum No. 9/11/55-RPS  dated 22.12.1959 and para 2.2 of Department’s OM No.22011/7/86 Estt. (D) dated 3.7.1986 was issued by the DOPT on 30.1.1997:-

Provided that if a candidate belonging to the Scheduled Caste or the Scheduled Tribe  is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted later to the said  immediate higher post/grade, the general /OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste and Scheduled Tribe in the immediate higher post/grade..

 

2.4       “According to the general principle 5(1) contained in MHA O.M.No.9/11/55-RPS dated 22.12.1959 of  para 2.2 of DOPT&T OM No.22011/7/86-Estt.(D) dated 3.7.1986 and  DOP&T OM No.2011/5/90-Estt (D) dated 4.11.1992, seniority of a person regularly appointed to a post would be determined by the order of merit indicated at the time of initial appointment and the seniority of persons promoted to various grades shall be determined in the order of selection for such promotion.  Thus, persons appointed through an earlier selection will  be senior to those promoted through subsequent selection.

 

2.5       The Supreme Court in case of Union of India Vs. Virpal Singh Chauhan etc, in its judgement on 10.10.1995 held as followed:-

 

“Even if SC/ST candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the Senior general candidate is promoted later to the said higher grade, the General candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate.  The earlier promotion of the SC/ST candidate in such a situation  does not confer upon him seniority over the general candidates  promoted later to that category.”

 

2.6       Having regard to the above Judgement of the Supreme Court, DOP&T decided to modify the existing policy of fixing seniority on promotion.  Accordingly, an Office Memorandum with following provisions added to general principles 5(1) contained in MHA (now Department of Personnel & Training) Office Memorandum No.91/11/55-RPS dated 22.12.1959 and para 2.2 of Department’s O.M. No.22011/7/86 Estt.(D) dated 3.7.1986 was issued by the DOP&T on 30.1.1997 :-

 

“Provided that if a candidate belonging to Scheduled Caste or the Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted later to the said immediate higher post/grade, the general/OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste and Scheduled Tribe in the immediate higher post/grade.”

 

This OM is issued on the basis of the Hon’ble Supreme Court judgement given in the Railway’s case of Union of India Vs. Virpal Singh Chauhan.

 

2.7       The Committee considered it necessary for better appreciation of the foundation of this OM to go into the details of Hon’ble Supreme Court Judgement delivered in the case of Virpal Singh Chauhan.  In this case the question of inter-se-seniority and promotion between the general candidates and reserved candidates working in various grades of Railway Guards came up for consideration.

 

2.8       The Hon’ble Supreme Court held that among the category of Guards in Railway Services there are four Categories Viz. Gr. -`C’, Gr.- `B’, Gr.- `A’ & Gr.- `A(Spl)’.  The initial recruitment is made to Gr.`C’ and they have to ascend rung after rung to go upward.  The promotion from one grade to another in this category is by seniority-cum-suitability.  In other words, they are non-selection posts.  The Court held that in the circular/letter dated 31.8.82 which deals the subject of reservation of SCs/STs in promotion in Group `C’ & `D’ (Class III and IV) on the basis of seniority-cum-suitability, it is specifically ordered that while posting of the SCs/STs candidates on promotion should be done as per reserved points on the rosters, such promotion shall also be subject to the condition that seniority of SCs/STs candidates in comparison to other candidates will continue to be governed by panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided.  So far as  several grades among the Railway Guards are concerned the relevant service condition do not provide for any training on promotion from one grade to another.  Hence, the seniority between the reserved category candidates and general candidates in promotion category shall continue to be governed by their panel position.  However, in the case of non-selection posts, no panel is prepared or necessary to be prepared.  The seniority in the Gr. `C’ will be guiding the seniority list for cadre of Guards.  The seniority in a particular grade among the incumbents will be recast each time, the new incumbents enter from the lower grade on promotion on the basis of initial grade `C’ seniority.

 

2.9       The court also laid down as under:-

“It is not possible to agree with the view expressed by the Tribunal that a harmonious reading of clauses (1) and (4) of Article 16 should mean that a reserved category candidate  promoted earlier than his senior, a general category candidate, in the feeder category shall necessarily be junior in the promoted category to such general category candidate.  No such principle may be said to be implicit in the said clauses.  But in as much as the Railway Board’s circular herein concerned do provide specifically for such a situation and since they cannot be said to be violative of the constitutional provisions, they must prevail and have to be give effect to.  The said instructions are not shown to be inconsistent in any manner with any of the statutory provisions or statutory rules relevant in this behalf.” (Para 27).

 

2.10     “The conclusions stated above  shall be followed by the Railway authorities with effect from the date of judgement in R.K. Sabharwal i.e. 10.2.1995

 

“While there is no question of a panel being prepared at the time of promotion to a non-selection posts.  In as much as the post of Station Superintendent/TI in the scale of Rs.2375-3500 is a selection post, the panel referred to in the said circular/letter would mean the panel prepared at the time of making selections for promotion to the said post (Rs.2375-3500) and not the panel/select list prepared at the time of entry into the initial grade, viz. Assistant Station Master (Rs.1200-2040).  It also means that members in one panel take precedence over the members in the next panel.  The application of the rule of seniority referred to in the circular/letter dated 31.8.1982 – and other circulars/letters has to be subject to the said limitation.” (Para 47 and 46).

 

2.11     The Committee observed that the matter raised in the Hon’ble Supreme Court Judgement was pertaining to the Ministry of Railways.  Therefore, it was deemed necessary by the Committee to look into the aspects as to how Ministry of Railways implemented the Hon’ble Supreme Court judgement of Virpal Singh Chauhan case.  Instructions issued vide letter No.E(NG)I-96/SR6/3 dated 28.2.97  reads as under:-

 

“In terms of provisions contained in paragraphs 302, 318 and 319 of India Railway Establishment Manual, Volume I, 1989 Edition, seniority on promotion to higher grade is assigned in that grade with reference to date of entry on regular basis after due process of selection/suitability.”

 

2.12     The Supreme Court in its judgement dated 10.10.95 in the Union of India Vs Virpal Singh Chauhan etc. (JT 1195 (7) SC 231) held that:-

           

“Even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate.  The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.”

 

            In the same judgment, the Supreme Court further held as follows:-

“………..It also means that members in one panel take precedence over the members on the next panel.  The application of the rule of seniority referred to in the said circular/letter and other circulars/letter referred to Supra most of which do not make any distinction between selection and non-selection posts has to be subject to the said limitation.”

 

“The issue of revised instructions regulating seniority pursuant to the judgement of the Hon’ble Supreme Court has been considered by the Ministry of Railways.  It has been decided that if a Railway servant belonging to the Scheduled Caste or Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior General/OBC Railway servant who is promoted later to the said immediate higher post/grade, the General/OBC Railway servant will regain his seniority over such earlier promoted Railway servant belonging to the Scheduled Caste and Scheduled Tribe in the immediate higher post/grade.  This will, however, be subject to the condition that in respect of Selection posts, the over-riding principle that a Railway servant borne in an earlier panel will rank senior to a Railway servant borne in a later panel, will be observed.”

 

“This will have effect from 10.2.1995 and will not disturb the seniorities decided earlier as per the rules in force at the relevant times.”

 

2.13     The Committee have been informed that the Hon’ble Supreme Court has given a subsequent judgment in case of Akhil Bhartiya Soshit Karamchari Sangh Vs. Union of India (JT 1996 (8) Scheduled Caste 274) which lays down as under:-

           

i.          The Panel/select list does not necessarily mean panel/select list prepared at

the time of appointment to the intial grade.  The panel/select list also means the panel/select list prepared at the time of promotion.

 

ii.          The selection/seniority-cum suitability test prior to 10.2.95 are required to be finalized as per the extent rules/law as prevailing on the date of initiating the selection/suitability test as the case may be.

 

iii.         In para 6, Supreme Court has laid down the appointments according to roster already made prior to the judgement in Sabharwal case are legal and valid including right to seniority in promoted post or cadre, they are required to be given effect to.

 

iv.         In para 11, Hon’ble Supreme Court has laid down that there is absolutely no bar on filling up the vacancies for the general categories even by candidates belonging to reserved categories, if the said reserved category candidates are entitled to the same on the basis of seniority.

 

2.14     The Committee observed that there is a difference in implementation of  same Supreme Court judgment by the Ministry of Railways and Ministry of Personnel, Public Grievances & Pensions (DOP&T).  Ministry of Railways has rightfully maintained a distinction between the non selection posts for the purpose of determining the seniority of the SC/ST as the Court itself laid down that SCs/STs selected in earlier panel through the process of selection will be senior to those who have been selected in later panel.  Thus, earlier panel take a precedence over the subsequent panel.  There is no question of regaining the seniority in the selection posts where SCs/STs seniority is determined either with reference of panel position or the merit position secured in examination where training is prescribed which is followed by a test/examination.  The Ministry of Railways in its letter dated 28.2.97 had  rightfully implemented the judgement.

 

2.15     The Committee note with concern that the bureaucracy, i.e, Secretary, Joint Secretary, Director/Dy. Secretary of DOPT ignored the relevant portion of the judgement, which is logical and reasonable to the Dalits and Tribes.  Thus the bureaucracy of the DOP&T adopted a policy of ignoring those parts of the judgment which appear to be beneficial  reasonable and just to SCs/STs but highlighting and implementing only those portions of judgements which are detrimental to the interests  of SCs/STs.  The Committee consider that the attitude and action of the bureaucracy is torturous and atrocious to the Government servants belonging to the weaker sections of  society viz. Scheduled Caste and Scheduled Tribe which has caused immense harm to their service career.  The Committee therefore, recommend that steps should be taken to prosecute the officers concerned, viz., Secretary, Joint Secretary and Director/Deputy Secretary under Section 4 of Chapter II of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, apart from taking appropriate departmental penal action against them. 

 

2.16     The Committee observed that Hon’ble Supreme Court reiterated the same principle in Akhil Bhartiya Soshit Karamchari Sangh case (JT – 1996 (8) Scheduled Caste – 274) as laid down in Chauhan case that panel means the panel/Select list which is prepared at the time of promotion.  Thus, this subsequent judgment  elaborates the scope of the judgement of Chauhan case.

 

2.17     The Committee considered it necessary to examine the procedural aspect of inter-ministerial consultation before the seniority rule of 30.1.97 was laid down by DOP&T.  In reply to point No. 8, Preliminary Material the Secretary/DOP&T has stated that the legal implications of the judgement of Hon’ble Supreme Court in Chuhan case were examined in consultation with Ministry of Law, Department of Legal Affairs and draft note for the Cabinet as well as draft of the O.M. dated January, 30,1997 were approved by the then Minister of State for Law and Justice/Prime Minister before its submission to the Cabinet on January 15,1997.

 

2.18     The Committee asked vide point No.9 (Preliminary Material) whether DOP&T consulted the Ministry of Railways before submitting the note to Cabinet  as requried under the laid down procedure in this regard.  The Secretary, DOP&T in his  reply specifically mentioned that the matter pertains to the principle of seniority to be followed in this case and it falls within the purview of DOP&T being the nodal authority to process the case, and therefore, it was considered not necessary to consult the Ministry of Railways before submission of the case to the Cabinet.

 

2.19     The Committee had specifically asked whether it was not the violation of the existing procedure as well as established practice of the Ministry (DOPT) to consult all the Departments where a Cabinet decision has implication with all those Departments concerned before taking a unilateral decision.

 

2.20     The Committee are surprised to note that false and incorrect position has been furnished to mislead the Committee that it was not necessary for DOP&T to consult the Ministry of Railways about the Railway rules of seniority and likely effects of Chauhan case.  The Committee also note with utmost surprise that Secretary/DOP&T has replied that Article 46 of the Constitution of India is not relevant to promotion of educational and economic interest of SCs/STs and does not provide their protection from social injustice and exploitation.  The Committee recommend that the then Secretary, DOP&T should be hauled up adequately for furnishing incorrect and misleading information to the Committee.

           

2.21     The relevant paragraph No. 15 & 16 of the Hon’ble Supreme Court  judgment of Ajit Singh Januja Vs. State of Punjab case was as under:-

 

“Para 15 When framers of the Constitution  by Article 16 guaranteed equality of opportunity in matters of Public employment, they aimed at combining democratization with efficiency…….Article 335 of the Constitution enjoins to take into consideration  the claims of the members of the Scheduled Caste and Scheduled Tribe consistently with the maintenance of efficiency of administration while making appointments to services and posts in connection with the affairs of the Union or of a State.  Thus, a process should be adopted while making appointments through direct recruitment or promotion in which the merit is not ignored.  For attracting meritorious and talented persons to the public services, a balance has to be struck while making provisions for reservation in respect of a section of the society. …….. We have to be conscious at the same time that the efficiency of the administration of the country is not harmed and there is not reverse discrimination. ……. Even where process of promotion by selection is adopted, seniority has an importance in case of equal merit.  …..Right to equality enshrined in the Constitution is to be preserved by preventing reverse discrimination as well.  The guarantee of equality required maintenance of original or panel inter-se-seniority between the general category candidate and the earlier promoted reserved category candidate  under the reservation policy, for promotion to the higher general vacancy.  The equality principle required exclusion of the factor of extra weightage of earlier promotion to a reserved candidate because of reservation alone  he competes for further promotion  with a general category candidate, senior to him in the panel.  Any other view would amount to reverse discrimination and violative of the guarantee of equality in Article 14 & 16.”

 

2.22     In Union of India Vs. Virpal Singh Chauhan (supra) case the  seniority between the reserved category candidates and general candidates in the promotion category shall continue to be governed by their panel position i.e. with reference to their inter-se-seniority in the lower grade.  The rule of reservation gives accelerated promotion, but it does not give the accelerated `consequential seniority’.  If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation roster and his senior belonging to the general category candidate is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate.   ….If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered in service on basis of reservation  roster but have excluded the general category candidates from being promoted to the posts merely on the ground of  their initial accelerated promotions.  This will not be consistent with requirement or the spirit of Article 16(4) of Article 335 of the Constitution.”

 

2.23     The Committee vide point No.12 (Preliminary Material) has specifically asked whether the Hon’ble Supreme Court judgement makes any distinction between the selection and non selection posts in reply to which it was specifically advised by the Ministry (Secretary/DOP&T) that principle enunciated by Supreme Court in para 29 of its judgement in Chauhan case has also been supported by the ruling of the Supreme Court in Ajit Singh Januja case.  While reiterating the principle in Chauhan case, the Supreme Court does not make any distinction between the selection posts and rather confirmed the applicability of the principle of Chauhan case in the case of promotion by selection also.  It was repeated and emphasised that the OM dated 30.1.1997 was issued in consultation with the Ministry of Law for placing the matter before Cabinet.  Since the judgment of Supreme Court in Chuahan case was interpreted correctly by DOP&T and not by Ministry of Railways, there was no option but to advise the Railway Ministry to follow the correct interpretation of DOP&T.

 

2.24     The Committee regret to note that DOP&T conveniently ignored the second principle laid down in Virpal Singh Chauhan’s case to the effect that members of one panel take precedence over members of next panel, thus harming the interests of the SCs/STs.  The Hon’ble Supreme Court did make a distinction between the non-selection and selection posts holding that in the case of promotion to non-selection posts, no panel of suitable candidate is required to be prepared and the promotees will get seniority as per their inter-se-seniority in the lower grade irrespective of whether the SCs/STs are promoted earlier by virtue of reservation but in the case of promotion to selection posts, panel of selected candidate are required to be prepared and the promotees will get seniority as per panel position irrespective of whether the SCs/STs get promotion earlier from the panel by virtue of reservation,.  DOP&T deliberately ignored this latter principle.

 

2.25     The Committee observed that the DOP&T did not rely on Supreme Court’s ruling contained in para 27 of Virpal Singh Chauhan case which reads as under:-

 

“It is not possible to agree with the view expressed by the Tribunal that a harmonious reading of clauses (1) & (4) of Artilce 16 should mean that a reserved category candidate promoted earlier than his senior general category candidate in the feeder category shall necessarily be junior in the promoted category to such general category candidate.  No such principle may be said to be implicit in the said clauses.”

 

2.26     DOP&T in their reply to point No.14 had mentioned that the  Supreme Court ruling/observation are only clarificatory in nature in so far as above said reasoning given by the Tribunal is concerned and do not lay down any principle as such, which in fact has been propounded in clear terms in para 29 of the said judgement.  The DOP&T’s OM dated 30.1.97 is based on this very principle which is contained in para 29 of the judgment in Chauhan case.  The Secretary/DOP&T had further mentioned that 3 Judges bench of Hon’ble Supreme Court has specifically held in Januja’s case that the rule of reservation gives accelerated promotion but it does not give accelerated consequential seniority.  It was, however, necessary for DOP&T to implement the said ruling of Supreme Court by  issuing general order which was reiterated by issuing the OM dated 30.1.97.

 

2.27     The Committee note that the Secretary DOP&T knowingly ignored the constitutional position to justify his erroneous understanding of the judgement of Virpal so that his departmental position can be justified.  The Committee are also constrained to observe that Secretary/DOP&T, vide his  department’s reply, mentioned that the Supreme Court judgment in Virpal Singh Chauhan case lays down the principle of law that SCs/STs can get promotion on the basis of reservation but not the accelerated seniority, which is in fact not true but  rather a distoriton of facts because the Hon’ble judges of  Supreme Court in Chauhan case interpreted the instructions contained in the Railway Board letter dated 31.8.82.

 

2.28     The text of letter dated 31.8.82 as printed at page 512, chapter XXII of Brochure on Reservation for Scheduled Caste & Scheduled Tribe in the Railway Services, 3rd Edition 1985 was produced before them (Supreme Court) by the Advocate of respondents i.e. Virpal Singh Chauhan.  Therefore, Hon’ble Judges could not appreciate the complete context and background in which instructions of 31.8.82 were issued.  This letter of 31.8.82 of Railway Board lays down that in non-selection posts a panel is prepared for the actual number of posts plus anticipated vacancies within 3 months and 20% thereof, from the eligible candidates for promotion applying the rule of reservation, the panel consisting of  general as well as reserved candidates was required to be drawn up to fill up those posts.  In actual working injustice was being done to the candidates belonging to reserved category for the reasons that they were being placed at the bottom of the list to fill up the vacancies, and , therefore, their promotion was dependent on the materialization of 20% unforseen/contigent posts which may occur or may not occur.  To mitigate the hardship and to undo the injustice to the reserved candidates the above letter (31.8.82) was issued to all the Zonal Railways and Production Units of Indian Railways.  Earlier promotion in non selection posts were ordered as per their panel postion but after these instructions SCs/STs were allowed to be promoted as per roster points so that they may occupy the reserved posts but their seniority were required to be fixed as per rules laid down by the Railway administration i.e. their position in panel/suitability list/select list.  The panel or suitability list or select list are synonymous and inter changeable with each other.  The factual position was brought out before the Hon’ble Supreme Court by the Railway administration through their Intervener Application (I.A) No. 10-12 of 1998 filed in Interlocutory Application No. 1-3 in Civil Appeal No.3792-3794 of 1989 in the matter of Ajit Singh, Januja and other Vs. State of Punjab & others.

 

2.29     Thus, it is clear that the Hon’ble Supreme Court has not examined any Constitutional provisions in Chauhan case but only Railway’s instructions which unfortunately were not placed before the court completely.

 

2.30          The Committee note that the Ministry (DOPT) knowingly and wilfully misled the Committee that Hon’ble Supreme Court has laid down the principle of law in Virpal case which is not a fact.  It is Railway’s rules contained in their letter dated 31.8.82 which were  interpreted by Hon’ble Court and applicability of the judgement was restricted for the Ministry of Railways and not for all the Departments.  The Committee also note that this was done by the officials of  DOP&T for furtherance of the interest of their own clan/class/people whose interest is dearer to them rather than the interest of Dalits & Tribes who suffered for centuries.  Thus, this is an example how the bureaucracy works in  disfavour of the SCs/STs by adopting partisan attitude at the apex level.  Bureaucrats who are supposed to be fair and impartial to all, in exercise of the powers vested in them, exercise power in colourful manner ignoring the principle of equality and fair play.  The Committee consider that this attitude of the bureaucracy, viz. Secretary, Joint Secretary and Director, Dy. Secretary, is unbecoming of a Government servant and atrocious to the government servant belonging to the Scheduled Caste and Scheduled Tribes.  The Committee, therefore, recommend that steps should be taken to prosecute the officers concerned viz. Secretary, Joint Secretary and Director/Deputy Secretary under Section 4 of the Chapter II of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, apart from taking appropriate departmental penal action against them.

 

2.31     While the Committee sought clarification vide point No.16(Preliminary material) whether the Secretary (DOPT) proposed to fix up the responsibility for mis-reporting to the cabinet for not consulting the Ministry of Railways and the National Commission for SCs /STs it was replied negatively.

 

2.32     The Committee observe that the Secretary/DOP&T arrogantly reiterated that Ministry of Railways and National Commission for SCs/STs are also bound by the decision of Supreme Court as under Article 141, these Bodies are also required to assist the Supreme Court in implementing the law of the land instead of admitting the position and also ignoring the fact that it is the duty of the Bureaucrats to advise the Government to go in for amendment of the Constitution to protect the interests of the SCs/STs as done in case of weaker Sections, whenever any judgement of the Hon’ble Supreme Court took away the rightful benefits enjoyed by them, the constitutional amendment or enactment of law was resorted to.   The Committee note that on several earlier occasion, the constitution has been amended to ensure that constitutional scheme have full play and not hampered due to judgement of Hon’ble Supreme Court.

 

2.33     When asked about the rules laid down prior to 30 January, 1997 for fixing seniority of the SCs  and STs who got appointment on the basis of reservation rules vis-à-vis unreserved candidates, in a written reply DOPT stated that “according to the general principles of seniority contained in MHA (now Department of Personnel and Training) OM No.9/11/55-PRS dated December 22, 1959 the relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendation of the UPSC or other  selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection.  Where promotions are made on the basis of selection by a Departmental Promotion Committee (DPC) the seniority of such promotees shall be in the order in which they are recommended for such promotion by the Committee.  Where promotions are made on the basis of  seniority, subject to the rejection on the ground of  unfit, the seniority of persons considered fit for promotion at the same time shall be the same as the relative seniority in the lower grade  from which they are promoted.  Where, however, a person is considered as unfit for promotion and is superseded by a Junior such persons shall not, if he is subsequently found suitable and promoted, take seniority in the higher grade over the Junior persons who has superseded him.  Where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority, shall follow the order of confirmation and not the original order of merit.

 

2.34     However, in pursuance of the directives of  the Supreme Court in their Judgement, dated 2 May , 1990 in the case of Class II Direct Recruits Engineering Officers Associations Vs. State of Maharashtra seniority has been delinked from confirmation and the general principles mentioned above have been modified vide DoP&T Office Memorandum No. 20011/5/90 - Estt(D) dated November 4, 1992 to provide that seniority of a person regularly appointed to a post according to rule would be determined by the order of merit indicated at the time of initial appointment and not according to the date of his confirmation.  Promotion through Limited Departmental Competitive Examination or through selection by DPC or on the basis of seniority-cum-suitability (seniority subject to rejection of unfit) are all part of the basic method or appointment by promotion.  Hence, the aforementioned principles for fixation of seniority on promotion are equally applicable to the different modes of promotion.  In the case of direct recruitment some service rules contain the provision for giving weightage to the performance during training/probation also in the matter of fixing their seniority.

 

2.35     It was also stated that there were no separate rules / general orders prior to January 30, 1997 providing for fixation of seniority of SCs/STs who got appointment on the basis of reservation rules vis-à-vis unreserved candidates. 

 

2.36     While pointing to MHA OM dated 12.9.1968 which states that as per the general principles of seniority laid down in the Ministry’s OM dated 22nd December, 1959, all permanent officers of each grade are to be ranked senior to persons who are officiating in that grade.  It was clarified in OM dated 20th April, 1961 that after confirmation, the Scheduled Caste and Scheduled Tribe officers shall rank senior to temporary / officiating officers of the grade and amongst the permanent officers of that grade.  Their seniority will follow the order of the confirmation.”

 

2.37     The Committee during the course of evidence desired to know as to how is it that there was no separate rules or general orders prior to 30.1.1997 relating to seniority of SCs/STs.  The Secretary, DOPT replied as under:-

 

“as a result of the introduction of confirmation only at the entry stage and the delinking of confirmation from the availability of permanent posts, the need for reservation at the time of confirmation in posts and services filled by direct recruitment as per existing instruments will cease to exist as everyone, who is eligible for confirmation, will be confirmed.  The confirmation stage itself changed and it related to the entry stage then.  This is the order issued in 1988 which changes the position.”

 

2.38     On being asked by the Committee that the OM issued by DOPT on 30 January, 1997 violates the principles laid down in respect of seniority by the five judges constitutional bench in the case of Class-II (Direct Recruitment) Engineering Officers’ Association Versus State of Maharashtra (AIR 1990 Scheduled Caste P 1607).  The Committee pointed out that “seniority has to be counted from the date of appointment and not from the date of confirmation.  The Secretary, DOPT while clarifying the position during evidence stated as under:-

 

“30th January, 1997 O.M. was issued based on the judgement of a two-judge bench.  Subsequently, the same principle has been reiterated in the Ajit Singh Januja’s case.  That was a three-judge bench.  This principle was also accepted in the case of Akhil Bharatiya Shoshit Karamchari Sangh which was the third judgement.  In fact in this judgement, they even went to the extent of saying that the principle laid down in the Virpal Chauhan’s case should be effective from the date of the judgement of the Sabharwal’s case.  That is the position.  Based on the judgement of the Supreme Court, the O.M. of 30th January, 1997 was issued, after showing it to the Ministry of Law and to the Cabinet.”

 

2.39     About the judgement on the Direct Recruits Class - II Engineering Officers Association versus the State of Maharashtra, this judgement was considered by the Supreme Court while considering Januja’s case.  They have quoted it in Para 14 of the judgement as under:-

“This court in the case of Direct Recruits Class - II Engineering Officers Association versus the State of Maharashtra and others shall not consider the question of the inter se seniority of categories who have been permitted on the basis of reservation and roster.  And those who have been permitted from lower grade to higher grade, a condition of seniority-cum-merit or merit-cum-seniority was the question under consideration.  There as to how to fix the seniority of persons entering any service from different sources?  That is by a process of direct recruitment and promotion.”

 

2.40     The representative further stated,  “so that the issue.  It was a different issue which was under consideration in the case which you have referred now.  Ajit Singh Januja’s case has referred to that.  They had reiterated the principles enunciated in the Virpal Chauhan’s case.”

 

2.41     The Committee desired to know that there was a three judge bench of Supreme Court which gave its judgement in “Jagdish Lal’s case.  When there was a subsequent judgement by the Supreme Court (three judges bench) why did the Ministry not opt to implement that judgement.  Thereafter, there was a Central Administrative Tribunal’s Principal Bench’s  Judgement in Delhi in between Harbhajan Singh Vs Union of India.  In the judgement dated 24th July, 1997 it said that, Jagdish  Lal’s case have lapsed after  the judgement by three bench judge of the Supreme Court which also states that Since the original application was originally filed to claim relief on the basis of Virpal Chauhan’s and Harbhajan Singh’s cases we find that ratio has undergone a  change in view of Jagdish Lal’s case.  We find it not necessary to adjudicate the matter any further and we dismiss this application  on the basis of the latest Judgement of the Supreme Court in Jagdish Lal’s case”.

 

2.42     When the Committee desired to know that since all the judicial forum, including the CAT and various High Courts have been following the latest judgement of the Supreme Court, why did the DOPT not choose to implement the subsequent judgements given by a higher bench of Supreme Court in Jagdish Lal case and CAT Judgement in Harbhajan Singh Vs UOI.  In reply the Secretary, DOPT stated that, if a subsequent judgement of the Supreme Court of a larger bench or of the same strength bench subsequently over-rules the earlier judgement, then we are bound to obey under Article 141 of the Constitution.  He further stated that Virpal Chauhan’s Judgement was the first judgement of a two-judge bench.  Then in Ajit Singh Januja case reiterated the decision of three-judge bench.  This was again reiterated in Akhil Bharatiya Shoshit Karamchari Sangh’s case, the judgement was delivered by a two judge bench.  Then came Jagdish Lal’s case of 5th May, 1997, and the CAT judgement.  Subsequently, there is another judgement in the case of Swaran Singh and others of 15th January, 1998 where the same principle of Virpal Chauhan’s and Ajit Singh’s judgement were reiterated so, there are so many judgements coming up.

 

2.43     Now, as to why we are not following Jagdish Lal’s case.  There are two issues, Ajit Singh’s and Jagdish Lal’s cases are three bench judgements.  The Supreme Court, in the case of Shah versus the State of Gujarat, it had been clearly stated that the decision of the larger bench prevails over the decision of a smaller bench.  And mere expression of disapproval by another bench does not over rule the earlier decision unless it subsequently over rules.  That is one position.  The second position is the Government had already filed a clarificatory petition before the Hon’ble  Supreme Court and they have referred it to the Constitution Bench and the matter rests there.  The matter is sub judice.  Now, whether the Supreme Court decides, or the Constitution Bench decides, the Government of India have to abide by it.  The representative also stated “upon the Government’s move, a petition before the Supreme Court for clarification on this point was filed.  This was filed before the constitution Bench of the Supreme Court on 15th September, 1997 and the matter is before the Constitution Bench”.

 

2.44     Not satisfied with the above explanation of the Secretary, DOPT the Committee pointed out to the following relevant paragraph at page 46 from the Jagdish Lal’s case which deals directly with the “seniority”.

 

“…………We, therefore, hold that the reserve candidates become senior to the general candidates in each successive cadre / grade from Assistant to Superintendent in Class III services and fifth respondent in Class I services.  Their seniority is not and cannot have the effect of getting wiped out after the promotion of general candidates from their respective dates of promotion.  The general candidates remain junior in higher echelons to the reserve candidates as was held by the High Court.”

 

2.45     The Committee observe that what was mentioned by the Secretary, DOPT as the concluding observation of the Supreme Court relates to future promotions.  This observation and the finding given by the Supreme Court which is the Committee’s view also should have been the basis for issuing the Office Memorandum.

 

2.46     The Committee desired to know whether the Ministry of Law had advised DOPT to amend the Office Memorandum after the Supreme Court judgement in Jagdish Lal case, the Secretary DOPT stated during evidence as under:-

 

“We had referred it to the Ministry of Law and they did not advise on the lines which the Committee are indicating.  On the contrary, they advised that Jagdish Lal’s   judgement lends support to the earlier principle laid down in Virpal Singh Chauhan and Shri Ajit Singh Januja’s cases.”

 

2.47     On being asked whether before issuing these Office Memoranda, had DOPT consulted the National Commission for SC/ST?  The Ministry in a written reply stated :

 

“As per the advice of  the Law Ministry, in matters like this where there is no option but to implement the decision of the Supreme Court there is no need to consult the National Commission for SC/ST as no useful purpose would be served by engaging in any such consultation.”

 

2.48     Article 338 of the Constitution says, The Union and every State Government shall consult the National Commission for SCs and STs on all major policy matters affecting Scheduled Castes and Scheduled Tribes.  The Committee desired to know whether the Ministry of Law had stated in unequivocal terms that DOPT need not consult the National Commission for SC/ST.  In reply the Secretary DOPT stated during evidence, “When the Supreme Court has laid down the principle in law, we have to obey that.  We have no option.  We have to obey the Supreme Court order.  This is not a matter on which we required a policy direction.”

 

2.49     When the Committee specifically asked, “Did the Ministry of Law advise DOPT not to consult the National Commission for SC/ST because it would have no useful purpose?”  The Secretary replied, during evidence “Sir, if you permit me, I will just read out.  We may agree with the view expressed by the DOPT in its note dated so and so to the extent that no useful purpose will be served by engaging in consultation with the National Commission for SCs/STs  in a matter like this where there is no option but to implement the Supreme Court decision.  This is their advice.

 

2.50     When the Committee asked a pointed question.  Whether referring this matter to the Ministry of Law did DOPT point out that it is obligatory on the part of the Department under Article 338(9) to refer it to the National Commission for SCs/Scheduled Tribes.  The Secretary DOPT could not give any satisfactory reply.

 

2.51     The Committee note that as per the DOPT Office Memorandum dated 30.1.1997 issued to give effect to the judgement of the Supreme Court in the case of Union of India Vs. Virpal Singh Chauhan, etc., if a SC/ST candidate is promoted earlier by virtue of reservation / roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted SC/ST candidate.  The judgement was only meant for Railway guards of the particular department and has nothing to do with other departments as is categorically enunciated in the judgement, the Committee feel that this OM should not have been made applicable to all the departments snatching the seniority of an earlier promoted SC/ST candidate.  The Committee observe that DOPT has wilfully and maliciously ignored paras 45, 46 and 47 of the same judgement wherein the Supreme Court has laid down that seniority of the SCs/STs will be regulated as per the practice/position in selection posts and those SC/ST selected in earlier panels would rank senior to those selected in later panels.

 

2.52     The Committee further note that in Jagdish Lal & Others Vs State of Haryana and Others the Supreme Court on 7.5.97 had observed that on promotion to the higher grade reserved candidates steal a march over general candidates and become a member of the service in the higher cadre or grade earlier to the general candidates.  Therefore, their seniority can not get reopened after the general candidates got promoted to the higher cadre or grade, though he was his erstwhile senior in the feeder cadre/grade”.  Central Administrative Tribunal Principal Bench in Harbajan Singh Vs. Union of India had also supported and accepted the above judgement of the Supreme Court.

 

2.53     Under Article 338 of the Constitution “the Union and every State Government” are required to consult the National Commission for SCs and STs on all major policy matters affecting Scheduled Castes and Scheduled Tribes”.  The Committee note that DOPT, before issuing the O.M. dated 30.1.97, instead of consulting the National Commission for SC/ST, sought the advice of Ministry of Law (Department. Of Legal Affairs) who in turn advised that “in matters like this there is no need to consult the National Commission for SCs and STs as no useful purpose would be served by engaging in any such consultation.  The Committee are constrained to observe the malafide intention of the Department of Personnel and Training in issuing  the OM without considering the constitutional safeguards for SCs and Scheduled Tribes.  The Committee, therefore, strongly recommend that the Ministry of Personnel, Public Grievances and Pensions (Department of  Personnel and Training)  (DOPT) should withdraw its Office Memorandum dated 30.1.97 and issue a fresh OM on the basis of the judgement of Jagdishlal’s case.

 

2.54     On being asked how the seniority of the reserved candidates should be determined in selection posts, the Secretary, Legal Affairs has replied to the Committee on the matter as under:-

 

“In Virpal Singh Chauhas’s case the question of fixation of inter-se seniority between reserved candidates and general candidates on promotion to the following posts was under consideration.

                        (a)        Non-selection posts,

                        (b)        Selection posts.

            Non-Selection Posts:- The question pertained to fixation of inter-se-seniority between reserved candidates and general candidates on promotion relating to the category of guards in the Railway Service.  Amongst the category of guards, there are four categories, namely, Grade`C’ Grade `B’ Grade `A’ and grade`A’ Special.  They are non-selection posts.  The promotion from one grade to another in this category is by seniority-cum-suitability.  The rule of reservation is applied not only at the initial stage of appointment to Grade `C’, but at every stage of promotion.  The reservation policy regarding fixation of inter-se-seniority between reserved candidates and general candidates on promotion is contained in para 4 of Railway Board’s letter dated August 31, 1982 which reads as follows:-

           

2.55     “Against the above background, the matter has been reviewed by the Board.  It has been decided that posting of Scheduled Caste/Scheduled Tribes on promotion in non-selection posts should also be done as per the reservation points on the roster subject, however, to the condition that seniority of the Scheduled Caste/Scheduled Tribe candidates in comparison to other candidates will continue to be governed by the panel position in the case of categories where training is not provided and in accordance with the merit position in the examination where training is provided”

           

2.56     “Since the posts of Railway Guards were non-selection posts, no panel was prepared for promotion from one grade to the other  grade.  In view there of, the question arose as to what did the letter dated August 31, 1982 mean when it spoke of seniority being governed by the panel position.  In the opinion of the Supreme Court, it should mean the panel prepared by the selecting authority at the time of selection for Grade`C’ (initial grade).  The court further held that it is the seniority in this panel which should be reflected in each of the higher grades as the rule of reservation in the Railways gives accelerated promotion, but it does not give the consequential seniority on promotion in non-selection posts.  In other words, as regards Guards in Railways the seniority in the promoted category as between reserved candidates and general candidates shall be the same as their inter-se-seniority position in Grade`C’.  Therefore, the court held that if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted reserved candidate.  The Court further clarified that if the reserved candidate gets further promotion to higher grade in the meanwhile, then the above principle will not apply as there is no question of any seniority between a person in Grade `B’ and a person in Grade `A’”.

           

2.57     “The reservation policy of the Railways contained in the said letter dated August 31, 1982 regarding fixation of inter-se-seniority amongst reserved candidates and general candidates was held to be constitutionally permissible in Virpal Singh’s case.”

           

“Selection Posts: As regards selection posts, the Supreme Court in Virpal Singh Chauhan’s case held that since the selection for promotions are made on the basis of selection panels, the seniority gained by the reserved candidate will not be lost on subsequent promotion of his senior general candidate in the lower grade, because the seniority has to be determined by the position in the selection panel and not be the panel of selection prepared at the time of entry into the initial grade, as the members in one panel take precedence over the members in the next panel.”

 

2.58     The Committee have also examined the Government of India’s allocation of Business Rules 1961 (Govt. of India’s publication) given at page 56 and at item (I) the Allocation of business to the Ministry of Law and Justice (Department of Legal Affairs) as under:

“Advice to the Ministries on legal matter including the interpretation of the constitution and the laws.”

 

2.59     The Committee note that Secretary Legal Affairs clearly brought out the scope of Virpal Singh Chauhan judgement and  established that the court has made a distinction between the selection and non-selection posts, but Secretary/DOP&T conveniently ignored this distinction with a view to benefit general category people to have a favourable position in the seniority.  This is clearly to favour  his  own class to which he belongs.  The Committee are of considered view that such erroneous understanding of the Virpal Singh Chauhan judgement was glaringly and obviously intentional and wilful and misleading to ensure the benefits to the general caste people.

           

2.60     The Committee have also considered the judgement of Hon’ble CAT’s Principal Bench, New Delhi.  In the case of Mukul Saxena Vs. Union of India in which the implementation of Supreme Court judgement by Railway’s was challanged particularly the five lines of the Railway Board’s letter dated 28.2.1997 which are reproduced:-

                       

“This will, however, be subject  to the condition that in

respect of Selection Posts, the overriding principle

            that a Railway servant borne in an earlier panel will

            rank senior to a Railway servant borne in a later panel,

            will be observed”.

           

2.61     The Hon’ble Tribunal has laid down in para 13 as under:

“Therefore, having regard to the aforesaid judgements of the Supreme Court, the 5 impunged lines of the Explanatory Note referred to in paragraph 8 above do not appear to be contrary to the judgements.  The preparation of a panel for promotion to selection posts has been recognized and, therefore, a person promoted in an earlier panel will rank senior to another person who is borne in a later panel which is according to the Railway Rules.  We, therefore, find no justification to delete the impunged 5 lines in the note and this argument is also rejected.”

           

2.62     The Committee note that there was a difference of opinion between the Ministry of Railways and DOP&T about the implementation of the Hon’ble Supreme Court’s judgement as the understanding of the two  Ministries differ from each other.  This difference of opinion has been brought out very clearly as referred  in the memorandum submitted by Confederation of All India SCs/STs Organisations in which the copies of the DO letters exchanged between by the then Secretary/DOP&T, Shri Arvind Verma on 9.2.98 and replies thereof given by Shri K. Balakesari, Member Staff on 27.2.98.  Thereafter again the reply of Shri Arvind Verma to Shri K. Balakesari given on 10th March, 98.  The Committee feel that it is necessary to refer to these correspondence in brief to establish how adamant and obstinate was the then Secretary (DOPT) about the non-implementation of the portions of judgement which were in favour of SCs/STs but just to favour his own class of people and deny the benefit of the judgement of Virpal Singh Chauhan which was as laid down under rules of Railway Board, to the SCs/STs.

           

2.63     The then Secretary/DOP&T vide his DO Letter dated 9.2.98 asked the Chairman, Railway Board that Railway Ministry should review the instructions contained in the letter dated 28.2.97 (which is detailed in para 5.8) to bring it in line with the DOP&T instructions of 30.1.97.  The personnel policies/guidelines framed by the DOP&T (which has the nodal role in such matter) are meant for general application and all Ministries/Departments are as such required to observe the same for the uniformity and to avoid complications.

           

2.64     Member Staff, ex-officio Secretary to the Government of India Ministry of Railway replied to the Secretary (DOPT) vide his D.O. letter dated 27.2.98 stating that traditionally the principle of seniority being followed in respect of Railway (other than Railway employees in RBSS) are not identical with the principle being followed on the civil side.  Broadly the date of enty in the grade on regular basis determines the seniority of Railway employees subject to the condition that panel position of promotee and merit order of direct recruit is not disturbed.  The Hon’ble Supreme Court’s judgement in Virpal Singh Chauhan’s case was in respect of  Railway employees.  The instructions contained in Department of Personnel & Training’s OM dated 30.1.97 were adopted in the present form as per Ministry’s letter dated 28.2.97 after critical examination by Ministry of Railway in consultation with their Legal Adviser, having regard to the Hon’ble Apex Court’s judgement in question with particular reference to what court has observed in paragraph 28, 32, 45 and 46 of the judgement.  The Member Staff advised that as per para 46 IRDP is held that the principle will apply in selection posts subject to the rider indicated in para 45 to the effect that members in one panel take precedence over the members of the next panel.  In view of 28.2.97 making a distinction between selection and non-selection posts.  Any  course of action other than one directed by Hon’ble Apex Court in their judgement of Virpal Singh Chauhan case would involve this Ministry in contempt of court and there would appear to be no need at this stage to review instructions contained in the letter dated 28.2.97.

             

2.65     Shri Arvind Verma, Secretary (DOPT) again had written a D.O.letter 10.3.98 to Member staff that it would have been appropriate for the Ministry of Railways to have consulted his department in making distinction betweeen the selection and non-seslection posts and emphasised that instructions contained in O.M. dated 30.1.97 were issued in consultation with Ministry of Law and with the approval of cabinet.Therefore, it is necessary to revise the instructions of Railways bringing them in line with DOP&T’s O.M. dated 30.1.97.  Further Shri Verma stated that ruling in paras 46 and 47 in Chauhan’s judgement specifically did not lay down a general principle which was enunciated in para 29 therein.  He mentioned that revised instructions issued by Ministry of Railways are required to be urgently communicated to the Prime Minister Office for placing the matter before the Prime Minister and that revised orders should be issued at an early date and DOP&T should be apprised of the same immediately.

           

2.66     The Ministry of Railways, seeing no alternative except to revise the instructions as directed by Shri Arvind Verma, revised the same by letter No.E(NG)-1/97/SR6/3 dated 15.5.1998 as under:

“The instructions contained in this Ministry’s letter of even number dated 28.2.97 vide para 3 thereof make a distinction between selection posts, General/OBC Railway servant promoted later to a higher grade/post over a junior SC/ST. Railway servant promoted earlier to such a higher grade/post against a reserved vacancy.  These instructions have been reviewed at the instance of and in consultation with Department of Personnel and Training.  It has been decided in partial modification of this Ministry’s letter dated 28.2.97, that there will be no distinction between selection posts and non-selection posts.”

           

2.67     The Committee are constrained to note that DOP&T has adopted duality in the matter of consultation. On one side they have taken the view that consultation is not required with the National Commission for SCs and STs   because it is the duty of all the Organisations and Departments to comply with the Supreme Court’s judgement, whereas they have insisted that the Ministry of Railways should have consulted the DOP&T while making distinction between selection and non selection posts.  This duality obviously maintained by the apex bureaucracy of the DOP&T so that nobody could detect the patent illegalty of their action which were intended for deprivation and denial of the lawful limited rights to SCs/STs.

 

2.68     It is observed  from Shri Arvind Verma’s letter dated 10.3.1998 to the Ministry of Railways that apex bureaucracy was working in liaison with the Apex level official of the Prime Minister’s Office as is evident that Shri Verma threatened the Ministry of Railways that matter is required to be sent urgently to the Prime Minister’s Office for submission to the Prime Minister, Naturally any Prime Minister has to rely on the bureaucracy who is supposed to be independent, fair and just and impartial to all but they were working in partisan manner and acted as representatives or the defenders of the right of their own class/clan.  Thus such partisan bureaucracy cannot be trusted in any manner for the impartiality in the matter of SCs and STs.

 

2.69     The Committee observe that the deliberations that took place in the Lok Sabha on 4.8.1998 throw the light of the working of the DOP&T bureaucrats.  Shri Ram Vilas Paswan who happens to be a former Minister for Railways in the Cabinet headed by PM, Shri Devegowda and Shri Inder Kumar Gujral had mentioned in  Lok Sabha on 4.8.98 that he knew when he was in the Government, how the permanent bureaucracy dilutes the things and when the Government become weak, bureaucracy become stronger and as a result, any step proposed by the Government remains undecided. He further mentioned very specifically that the then Cabinet Secretary was against the Scheduled Castes and Scheduled Tribes.  The Committee are aware that the then Cabinet Secretary Shri Subramaniam belongs to the U.P. Cadre  of IAS and he was not preferred as a Chief Secretary of  U.P. by the then Chief Minister Ms.Mayavati who kept Shri Mata Prasad, an SC, as Chief Secretary.  Therefore, he had some grudge against the Dalit community as a whole.  The same is adequatley reflected in the observation made by Shri Ram Vilas Paswan in his statement made on the floor of the Lok Sabha and quoted in detail above.

 

2.70     Thus the Committee observe that the bureaucratic atmoshpere prevailing at that time was totally against the principle of justice to SCs & STs. The Committee, therefore, recommend that the then Secretary, DOP&T should be prosecuted under Section 4 of Chapter-II of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 apart from taking appropriate departmental penal action against him.

 

2.71     The next issue which has been examined by the Committee is whether it is prudent/obligatory on the part of DOP&T to consult in such an important matter of  SCs/STs seniority the National Commission for SCs/STs, the constitutional body as envisaged under the constitutional provisions and created after the enactment of the constitution (Sixty sixth Amendment) Act,1990.  The Commission has been assigned the constitutional responsibility to investigate and monitor all the matters relating to safeguards provided to SCs/STs under the constitution or other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards.  The consultation with the National Commission of  SCs/STs  was not resorted to by DOP&T authorities on alibi that such consultation is not needed with the Commission due to the fact that some court’s orders are required to be implemented.  It is lamented that the spirit of the constitutional provisions was ignored wilfully and knowingly as the then Chairman of the National Commission while submitting the Special Report had shown his helplessness while forwarding the same through his Demi Official letter addressed to His Excellency the President of India Shri K.R. Narayanan.  The relevant text is reproduced below:-

 

“Before  invoking this provision, the Commission has exhausted all the efforts by calling the Secretary of Department of Personnel & Training together with the officers and discussing the issue but the Department was not amenable to the reasoning.  Commission has taken up the matter with the Hon’ble Prime Minister requesting him to intervene to stop the wheel of reversal which has been set in motion by the O.M. dated 30.1.97, 2.8.97,  22.7.97, 13.8.97 and 29.8.97.”

           

2.72     The Committee feel there may be many more occasions in future that  the necessary consultation with the National Commission for SCs & STs may be wilfully avoided by the partisan bureaucracy just to cut short the constitutional safeguards of the Dalits and Tribes.  The Committee, therefore, strongly recommend that such consultation even in court matters should be made obligatory even in those cases where they involve the implementation of Court’s judgements which have a repercussion on the policies and the programmes laid down for the welfare of the SCs/STs and those who ignore this consultation have to be prosecuted under the relevant provision of the prevention of Atrocities Act 1989 for their wilful disobedience  of their assigned duties & responsibilities towards the Commission so that the Institution of National Commission for SCs/STs may not remain show piece without authority of State.  The power and functions of the National Commission be made more effective for the safeguard of the interest of SCs/STs  under the Constitution.

           

2.73     The Committee after going through the powers conferred on the National Commission for Scheduled Castes  and Scheduled Tribes through the constitution (Sixty Sixth Amendment) Act 1990 has taken a view that the Commission is fully competent to call the officials of the Government of India or any Public Sector Undertakings or any Institution directly or indirectly getting a fund from the Consolidated Fund of India to be examined by them on the matters relating to SCs/STs. The Commission wanted to have a consultation as is evident from the  then Chairman’s  Special Report but the top bureaucrats of DOPT i.e.  the Secretary, Joint Secretary of that time avoided the Commission. Thus, they are required to be handed  up and prosecuted under Section 4 of Chapter-II the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for not discharging their assigned duties towards the Commission.

           

2.74     The Secretary/DOP&T in his written reply as well as oral deposition before the Committee very often quoted from the Hon’ble Supreme Court’s judgement given in the case of Ajit Singh Januja & others Vs. State of Punjab & others decided on 1.3.96 after Virpal Singh Chauhan Case.  The Committee note, as is evident from the case title, that the above said judgement was between the petitioner Shri Ajit Singh Januja and the State of Punjab.  Apparently it involves the rules of seniority as laid down by the State of Punjab for determining seniority of SCs/STs  vis-à-vis general candidates.  The Hon’ble court has laid down in para 17 of the case that the applicants situated by the similar situations should be considered in the light of the judgement. 

 

2.75     Before going into the details of the judgement of Ajit Singh Januja case given on 1.3.96, the Committee feel it will be desirable and necessary to look into the relevant rules laid down by State of Punjab in connection with the fixing of the seniority of SCs/STs  vis a vis general categories.  The State of Punjab rules provided 9% & 1% reservation in promotion for SCs  & Backward classes respectively on the basis of 100 point roster in which Roster points No.1, 11,21, 31, 41, 51, 61, 71, 81 & 91 were reserved for SCs  & Backward Classes w.e.f. 12th Sept. 1963.

 

2.76     It was also clarified that in the seniority cum suitability post, the seniority of SCs/STs  will be counted from the date of promotion which means roster points becomes the seniority points.  The candidates belonging to SCs & Backward class may be junior in the suitability list but after getting their promotion earlier,they also get seniority.  This was laid down vide Punjab Govt. letter No.7219-4WG II/64/10670.

 

2.77     This reservation of 10% in promotion for SCs  & Backward classes was enhanced from 10% to 22% from 23rd August, 1966 and effect  of reservation was required to be given on the basis of 100 point  roster in which points No.1, 6, 11, 16, 21, 26, 31, 36, 41, 46, 51, 56, 61, 66, 71, 76, 81, 86, 91 & 96 reserved for the SCs and roster points No.15 & 75 for Backward Classes (letter No. 3180-SW1-70/893 dated 11.1.71).

 

2.78     State Govt. of Punjab further clarified vide letter  (letter No. 71.OSD(W)-69/18194 dated 19.7.69 that seniority of general category people in recruitment grade is to be determined according to the merit list prepared/recommended  by Punjab Service Commission/Selection Committee whereas SCs/Backward classes candidates, irrespective of their position in the merit list, should be appointed on the reserved points. However, it should be kept in mind if their position in general merit list is higher than the position obtained by them as per roster point, it should not be changed i.e. they should be placed on the higher position. Thus, this rule also shows that reserved roster points become seniority points for the SC & Backward class candidates in the recruitment categories too. Thus, it is obvious that State of Punjab rules in the recruitment posts as well as promotional posts filled up on the basis of seniority cum merit, SC/STs  were getting promotion as per roster points as well as getting seniority from the date of promotion though they may be placed at lower position in the merit list or the suitability list or the select list as the case may be.

 

2.79     These  rules became the subject matter of Court case and the matter was decided by Hon’ble Supreme Court in the case of State of Punjab Vs. Hira Lal & others. (AIR 1971 Supreme Court 1777).  The Hon’ble Supreme Court has observed as under:-

“It is true that every reservation under Article 16(4) does introduce an element of discrimination particularly  when the question of promotion arises.  It is an inevitable consequences of any reservation of posts that junior officers are allowed to take a march over their seniors.  This circumstance is bound to displease the senior officers.  It may also be that some of them will get frustrated but then the constitution makers have thought fit in the interests of the society as a whole that the backward class citizens of this country should be afforded certain protection as observed by this court in Writ Petition  No.285 and 314 of 1970, D/-23.9.1970 – A. Peeriakapruppan etc. Vs. State of Tamil Nadu.

 

2.80     The Committee also note that the Divisional Bench of Punjab and Haryana High Court in the case of Shri Jaswant Singh Vs. Secretary to Government  of Punjab, Education Department decided on 23.8.1989 laid down the following principle of the law. (1989) 4 Service Law Reporter257).

“(1)      Scheduled Castes/Backward Classes, candidates who are appointed or promoted on the basis of appropriate reservation  under the prescribed roster point shall be assigned seniority as per the point reserved for them in the relevant roster irrespective of their position in the general merit list (in case of direct recruitment in Class I, II, III and IV services).  In other words, roster points are the seniority points in respect of Scheduled Castes/Backward classes.  In the case of Scheduled Castes/Backward Classes candidate getting selected or promoted on his own merit/seniority, he will attain his original higher seniority position secured by him.  The seniority cannot be ambivalent and fluctuating.

(2)        We are also unable to agree with the learned counsel on the second point raised by him that the inter-se-seniority between the Scheduled Caste candidate who was promoted out of turn on the basis of the roster point to be filled by promotion in a reserved post and the non-scheduled caste candidate who was promoted to that cadre subsequently shall be the inter-se-seniority between them in the cadre in which they were originally recruited or in the previous cadre before promotion.  In other words, the seniority of the Scheduled Caste in the cadre to which he was promoted would be ambivalent and fluctuating so that his seniority will be going up and down during his entire tenure depending upon the seniority of general category candidates in the previous cadre who were subsequently promoted.  Whatever source from which the recruitment is made, the seniority is normally to be determined with reference to the appointment or promotion to that particular cadre as once they are recruited or promoted, they form one class and the length of service in that class alone would be the basis for determining the seniority.”(para 17)

 

2.81     Aggrieved by the judgement of the State of Punjab and Haryana High Court decision in the case of Shri Jaswant Singh, the petitioner Shri Ajit Singh Januja preferred an appeal in the Supreme Court and same was considered by the Hon’ble Apex Court and decided on 1.3.96 in which court has brought out the various phases of the reservation policy of the State of Punjab as detailed below.

 

Date of the order          Percentage of Reservation  for SCs/Backward Classes

19.10.1949                  15% for Scheduled Castes

19.8.1952                                19%

14.1.1964                    Reservation introduced in Class I,II and III service in all classes of the posts.

23.8.1966                    Reservation withdrawn from Class I and II posts and increased in respect of Class III and IV posts to 20%

4.5.1974                      Reservation reintroduced in Class I and II posts 14% for SCs  and 2% for Backward Class.

16.3.1974                    Reservation was increased to 25% for SCs  and 5% for Backward classes.

 

2.82     State Government of Punjab issued the clarification on 19.7.1968 saying that in direct recruitment Roster points shall be taken seniority point for SCs.  Hon’ble Apex Court considered the State Government of Punjab circular dated 4.5.1974 which laid down. 14% and 2% reservation in favour of SCs  and Backward Classes respectively in promotional posts of Class I and II services subject to the following conditions.

(i)         they should have satisfactory record of service.

(ii)        Reservation shall be given effect in accordance with the Roster maintained by each Department and Roster Point 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, 94 reserved for SCs  and 26, 76 reserved for OBCs.

 

2.83     The Hon’ble Court held that,

“It cannot be disputed that the first promotion to such candidates was given without judging him on principle either seniority-cum-merit or merit-cum-seniority  in the lower grade.  It was given by applying principle of reservation and roster.  The impunged circular dated 4.5.1974 quoted above itself says that it had been decided that the 16% of the posts are to be filled up by promotion to Class-I and Class-II services under the State Government have been reserved for members  of the Scheduled Castes and Backward Classes subject to the conditions (a) the persons to be considered must possess the minimum necessary qualifications, and  (b) they should have a satisfactory record of service.  Thereafter the roster has been fixed in different grades for their accelerated promotions.  In this background, while considering them for promotion to general  category posts in still higher grade posts, the fact that they had been promoted earlier on basis of the policy of reservation and applying the roster system cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for purpose of their promotion.  The only requirement prescribed is that they should possess the minimum necessary qualifications and they should have satisfactory record of service.

           

2.84     In this background, the Hon’ble Supreme Court has laid down the principle for deciding the seniority for the employees of State Government of Punjab that when the general candidate is promoted later from the lower grade to higher grade, he will be considered senior to a candidate belonging to Scheduled Caste category who has been given accelerated promotion against the post reserved for them on the roster though they may be much lower in the select list/suitability test.

           

2.85     The Committee considered it relevant to compare the rules as laid down by State of Punjab and those laid down Railways :-

(1)        As per Railway’s rule no relaxation in qualifying marks was permitted in any of  the Safety category post filled up through promotion, whereas in State of Punjab, satisfactory record of service was the requirement.

(2)        In Railways in posts other than the safety posts, only those SC/ST candidates who are getting promotion without relaxation are preferred for the reserved posts and in case of their non-availability, the candidates with relaxed standard are considered.  Thus, every promotion which is made against the reserved post is not necessarily obtained by a candidate based on the relaxation of qualifying marks.

(3)        In Railways the seniority of the SCs/STs  is allowed  on promotion as per the panel position where training is not prescribed  where such training is prescribed and followed by examination, the merit position secured by general and reserve candidates determines their inter seniority both in selection and non-selection grades.  So, contrary to the Punjab State rules, the roster points were never the seniority points as per rules of the Railways.

 

2.86     The Committee have observed that the Railway rules are quite different from  the Punjab State rules.  Thus comparison of Railway rules with the principle laid down by the Supreme Court in Ajit Singh Januja’s  case is not correct.  Therefore, the Committee are of considered view that secretary/DOP&T has unfairly and incorrectly quoted and drawn the strength from the Supreme Court’s  judgement in Ajit Singh Januja’s case which is not at all relevent.

 

2.87     In this context, the Committee also considered relevant to have a comparison of the DOP&T rules laid down by State of Punjab as well as Railway’s rules of promotion and seniority.

 

2.88     The DOP&T rules as  detailed at pages No.138 to 140 of Brochure on Reservation for SCs  & STs  in services 8th Edition 1993 are reproduced below:

“1.        (a)        Scheduled Caste and Scheduled Tribe Officers who are within the normal zone of consideration should be considered for promotion along with others and adjusted on the same basis as others and those Scheduled Castes and Scheduled Tribes amongst them who are selected on that basis may be included in the general select list in addition to their being considered for separate select lists for SCs and  STs.

(b)        If candidates from Scheduled Castes and Scheduled Tribes obtain on the basis of their positions in the aforesaid general select list less vacancies than are reserved for them, the difference should be made up by selected candidates of these communities who are in the separate select lists for Scheduled Castes and Scheduled Tribes respectively.

2.         In the separate select lists drawn up for (I) Scheduled Castes and (ii) Scheduled Tribes, officers belonging to Scheduled Castes and Scheduled Tribes, as the case may be, will be adjudged separately amongst themselves and not along with other officers, and, if selected, they  should be included in the concerned separate select list, irrespective of their merit as compared to other officers.  It is needless to mention that officers not belonging to Scheduled Castes and Scheduled Tribes will not be considered whilst drawing up separate select list for Scheduled Castes and Scheduled Tribes for being considered for inclusion in the aforesaid separate select lists, the zone of consideration for Scheduled Castes or Scheduled Tribes, as the case may be, would be of the same size as that for the general select list, that is, if for the general select list, the zone of consideration is 5 times the number of vacancies likely to be filled, the zone for consideration for the separate list for Scheduled Castes will also be 5 times the number of reserved vacancies for them, and likewise for Scheduled Tribes, subject of course to the condition that officer coming within such zone are eligible, by length of service etc. as prescribed, for being considered for promotion.

 

2.89     Non Selection Posts

The principle of zone of consideration is not applicable to promotions by seniority subject to fitness.  While referring proposals to the Departmental  Promotion Committee for promotion on the basis of seniority subject to fitness in respect of vacancies expected to arise during a year, the following procedure should be followed to give effect to the reservations mentioned above.

(i)         A separate 40 point roster to determine the number of reserved vacancies in a year should be followed on the lines of the roster prescribed in Annexure 1 to the Ministry of Home Affairs O.M. No.1/11/69 Estt.(SCT), dated the 22nd April, 1970, in which points 1,8,14,22,28 and 36 are reserved for Scheduled Castes and 4,17 and 31 for Scheduled Tribes.

(ii)        Wherever, according to the points in the roster there are any vacancies reserved for Scheduled Castes and Scheduled Tribes lists should be drawn up of the eligible Scheduled Castes or the Scheduled Tribes Officers as the case may be, arranged in order of their inter-se seniority in the main list.

(iii)       The Scheduled Castes and Scheduled Tribes officers should be adjudged by the Departmental Promotion Committee separately in regard to their fitness.

(iv)       When the Select Lists of Officers in the general category and those belonging to Scheduled Castes and Scheduled Tribes have been prepared by the Departmental Promotion Committee, these should be merged into a combined Select list in which the names of all the select officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, are arranged in the order of their inter-se seniority in the original seniority list of the category or grade from which promotion is being made.  This combined select list should thereafter be followed for making promotions in vacancies as and when they arise during the year.

 

2.90     The Committee note that State of Punjab and DOP&T’s promotion rules for both  selection and non selection are not identical at all.  The DOP&T’s rules did not provide for the roster points becoming seniority points as was in the case of State of Punjab.

 

2.91     The Committee consider it necessary that to go into the third and most important judgement of the Supreme Court which was decided on 7.5.97 by the Bench consisting of 3 judges and laying down the law as to how the inter-se-seniority between the SCs/STs  and general candidates on promotion to be determined.  This is a case of Jagdish Lal and others Vs. State of Haryana and others (JT 1997(5) Scheduled Caste 387).  The important principle of the law laid down by the Hon’ble Supreme Court are as under:-

(a)        On promotion to higher cadre the reserved candidate steals a march and longer service  in promoted cadre gives him seniority over general candidate who is promoted later.

(b)        Thus, it is settled  principle in the service jurisprudence that mere chances of promotion are not conditions of service and a candidate appointed in accordance with the rules can steal a march over his erstwhile seniors in the feeder/lower cadre.  On his having satisfactorily completed probation and declaration thereof he is given seniority in the higher cadre.  He becomes a member of the higher cadre from the date starting discharging duty of the post to which he is promoted unless otherwise determined in accordance with the rules.  From that date, he ceases to be member of feeder cadre/grade from which he was promoted.

(c)        On promotion to the higher cadre, the reserved candidate steals march over general candidates and becomes a member of the service in the higher cadre/grade earlier to the general candidates.

(d)       Therefore, seniority cannot get reopened, after general candidate gets promoted to the higher cadre/grade, though he as erstwhile senior in the feeder cadre/grade.  Would a dual principle of seniority of Dalits and Tribes and general candidates be valid and constitutionally permissible?  If a positive finding in that behalf is recorded, it would run contrary to the bed roll of judicial precedents and it would be fraught with irrecoverable incongruities in matters of integrating employees drawn from different streams to forge into common seniority or promoted according to rules which hitherto in well trenched.

(e)        Thus, we hold that the euphoria had by the general candidates from the ratios in Virpal Singh Chauhan and Ajit Singh Januja’s case is short lived; and it does not help in so realising the correct implications arising from the aforesaid ratios.  It is settled law that administrative instructions supplement the law but do not supplant the laws.  It fills only yawning gap.”

 

2.92     The Committee are aware that from all the corners of the country individuals as well as organisations approached DOP&T through various means such as writing letters, submitting the memorandum or raising the parliament questions to implement the latest law of the land which is obligatory, under article 141 of the Constitution of India, to be followed.  But DOP&T has not taken any action in this regard on the plea that DOP&T as a nodal agency for framing the personnel policies adopts balanced approach while formulating the policies relating to service matters.  The Committee observe that in respect of point No.8 (Preliminary Material) the Secretary, Legal Affairs advised the Committee as under:

“On a reference made by the Department of Personnel and Training, the decision of the Supreme Court in Jagdish Lal’s case was explained vide our note dated 11.9.1997  in which we advised the Department of Personnel and Training to have a fresh look at their proposal in view of Jagdish Lal’s case.  However, the Department of Personnel & Training made a second reference to this Department on the same issue and Department of Legal Affairs vide its opinion dated 7.11.97 opined that there is no legal objection to the instructions dated 30.1.97.  The legal position regarding legality or otherwise of the OM dated 30.1.97 has also been examined by the Department of Legal Affairs vide its written opinion already submitted to the Hon’ble Committee on 4.1.99.”

 

2.93     The Committee note that Secretary Legal Affairs has given an opinion that they do not see any legal lacuna in DOP&T instructions of 30.1.97 because ratio decidende (logic of the judgement) in earlier judgement has not been over ruled  in Jagdish Lal case but it does not mean that the DOP&T can not restore the original position which was prevailing prior to 30.1.1997 meaning thereby that the seniority SCs/STs and General candidates have to be determined with reference to the earlier rules or can initiate the action for modification of the OM thereby laying down a balanced approach.

 

2.94     The Committee enquired very specifically and pin pointedly from the Secretary, DOP&T on 5.1.1999 as to why Hon’ble Supreme Court’s decision given in case of Jagdish Lal which had drawn the support from 5 judges Bench judgement given in Direct Recruitment Class II Engineers’ Association’s case was not implemented.  The Committee also enquired from Secretary DOP&T why Central Administrative Tribunal, (CAT) Principal Bench, Delhi’s judgement in the case of Harbhajan Singh Vs. Union of India was not implemented in which CAT held as under:-

 

“Since the Original Application was filed to claim relief on the basis of Virpal Singh Chauha and Harbhajan Singh’s cases, we find that ratio has undergone a change in view of Jagdish Lal’s case.  We find it not necessary to adjudicate the matter any further and we dismiss this application on the basis of the latest judgement of the Supreme Court in Jagdish Lal’s case.”

 

2.95     The Committee pointed out to Secretary DOP&T that all judicial forums including the CAT and various High Courts have been following the latest judgement of Supreme Court and wanted to know why the DOP&T did not choose to implement this judgement either by modifying or withdrawing the OM dated 30.1.97.

 

2.96     The Secretary/DOP&T replied that in the case of Shah Vs. State of Gujarat, it has been clearly laid down by Hon’ble Supreme Court that the decision of larger Bench prevail over the smaller bench and mere expression of disapproval by another bench does not overrule the earlier decision unless it specifically overruled.  The Secretary also mentioned that the Government had already filed a clarification petition before the Supreme Court which have referred it to the Constitutional Bench and the matter rests there.  The matter is sub-judice.

 

2.97     The Committee further enquired from Secretary/DOP&T whether the Hon’ble Supreme Court stayed operation of Jagdish Lal judgement which was replied in negative but he did not agree for implementation of the law laid down by the Hon’ble Supreme Court in Jagdish Lal case . The Committee also pointed out to the Secretary that the aims and objectives of the agreement entered between the Father of the Nation Mahatama Gandhi and the Father of the Constitution Dr. B.R. Ambedkar in Pune was intended to bring SCs  to the level of others but under the garb of various judgements DOP&T is denying the fundamental rights to Dalits. Thus  the Committee find that whichever is favourable to SCs/STs  is not implemented but  whichever is unfavourable,  is implemented immediately and promptly by DOPT.  It is very clear to the Committee that the Secretary (DOPT) adopted  a negative attitude to the causes of the SCs   and STs and even assumed a  judicial role and patently ignored the decision  of the Principal Bench of CAT, Delhi which was given in case of Harbhajan Singh Vs. Union of India. For this attitude and action of the Secretary DOPT the Committee recommend that the concerned officer should be handed  up under the relevant provisions of the SCs  and STs (Prevention of Atrocities) Act, 1989.

 

2.98     The Committee suggested  that it was open to DOP&T to have a fresh look into the matter of seniority in view of Hon’ble Supreme Court judgement given in Jagdish Lal case either by modifying the OM or cancelling the same but the Department did not act in positive manner because  they had already decided not to honour the latest law laid down by the Supreme Court.  It  is evident that the Department of Legal Affairs had left the decision to the nodal Ministry to take an action if they want to do so  but their minds were already preset and they were not ready to attach any importance to the earlier advice of Deptt. of Legal Affairs.  Therefore, nothing was done in this regard.

 

2.99     When   the Committee wanted for its record the copies of note which Secretary (DOPT) had referred to the Ministry of Law and their comments but DOPT had not sent the note(s) and comments of Ministry of Law because they wanted to conceal the real facts from the Committee. The Committee are fully competent to call for any records but the records as promised were not furnished which shows that the DOP&T officials have not co-operated and helped the Committee in understanding the truth and appreciating the magnitude of the problem.  For this non-cooperation and unhelpful attitude displayed by the Secretary DOP&T towards the Committee, the Committee recommend that he should be prosecuted under Section 4 of Chapter II of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 apart from taking appropriate departmental penal action against him.

 

2.100   The Committee have also gone into the reply of the DOP&T furnished in response of the point No.15 (pre.mat.) in which it was  stated as under:

“Representation were being received by DOP&T raising controversy as to   the interpretation of the judgement of the Supreme Court in Jagdish Lal’s case  Although DOP&T was clearly of the opinion that the judgement in Jagdish Lal’s case only lends support to the principles enunciated in the judgements in Chauhan’s case and Januja’s case, with a view to set at rest the controversy so raised in the representations, opportunity was taken to intervene in the clarificatory petition filed by the Government of Punjab before the five judge Constitution bench of the Supreme Court by filing Intervention Application in the matter.  The advice of the Ministry of Law the then Additional Solicitor General of India were also obtained before doing so.  Thus, the question of there being any prejudice in filing the IA does not arise.  On the contrary, a clarification in the matter by the Constitution bench was considered to be in the interest of all concerned to set at rest once for all controversy in the matter.”

 

2.101   The contents of the memeorandum submitted by the Confederation of All India SCs/STs Employees Organisations are as under:-

“Alas! It is once more regretfully mentioned that officials like R.K. Tandon, and Harinder Singh, Joint Secretaries and K.K. Jha, Director who all deal with SCs/STs seniority are of the general community and with all vigour trying to fortify the interest of their own class i.e. the general community candidates.  They have filed an Intervener Application in the Supreme Court stated to have been done in consultation with the Solicitor General in which they have not prayed that the Hon’ble Court may confirm the principle on seniority laid down by the Hon’ble Supreme Court in the case of Union of India Vs. Virpal Singh Chauhan but for  upholding the judgement of Ajit Singh Juneja Vs. State of Punjab on which DOP&T instructions dated 30.1.97 are really based which runs contrary to the judgement of Jagdish Lal’s case.  We are deeply concerned at these motivated acts/decisions of above named officials and request that the Committee may recommend for the withdrawal of Intervener’s Application of DOP&T       besides punishing the erring officials.

           

2.102   During evidence the Secretary/DOP&T on 5.1.99 mentioned that  the Intervener Application has been filed by the DOP&T with the approval of Additional Solicitor General, Shri Reddy.  The Committee enquired about the necessity of filing of the application when  the Union of India was not the party to it.

           

2.103   In this background the Committee considered it necessary to go into the details of Intervener Application filed by various parties in this case before the Supreme Court.

           

2.104   Interlocutory Application No.1 to 3 of 97 in Civil Appeal No.3792-94 of 1989 in the case of Ajit Singh Januja and others Vs. State of Punjab and others was filed in the Hon’ble Supreme Court by the State of Punjab for the direction that the State of Punjab is in utter quandary relating to principle of law to be followed and implemented while making the promotions.   Because the Hon’ble Divisional Bench of the Punjab and Haryana High Court by order dated 8.10.98 passed Civil Writ Petition No. 10756 of 1997 – Gurcharan Kaur and others Vs. State of Punjab and others as under:-

“Since the Jagdish Lal’s  case (supra) reference has been made to the judgement in Ajit Singh Januja’s case (supra).  We are of the view that the State Government should follow the ratio as can be called out from Jagdish Lal’s case and make necessary promotion to the further rank as per the seniority by applying the ratio of Jagdish Lal’s case.  As a matter of abundant caution, they may mention in the orders of promotions so made that the promotions would be subject to the reshuffling of the seniority, if it becomes necessary after the clarification is given by the apex court regarding the true import of the aforesaid judgements.

“Consequently, the writ petitions are allowed and the official respondents are directed to frame the seniority in the cadre as per the ratio of Jagdish Lal’s case (Supra) and then make promotions in accordance with law w.e.f. the date any of the juniors might have been promoted subject to the rider already mentioned above.  These directios will be in consonance with the another division Bench judgement of this Court in C.W.P. No.8497 of 1997 rendered on June 11, 1997.  Let these directions be carried out within a period of three months.”

           

2.105   ALL INDIA CONFERERATION OF SC/ST  ORGANISATIONS ENCLOSED COPY OF INTERVENER APPLICATION Nos.4 TO 6 OF 1997 OF DOP&T’S IN INTERLOCUTORY APPLICATION Nos.1-3 OF 1997 IN CIVIL APPEAL NO. 3792-3794.

 

2.106   The Committee persued the relevant paras of I.A. which are reproduced below:-

 

Para 4:             Faced with the judgement of this Hon’ble Court in Jagdish lal’s case doubts have been raised about the legal validity of the instructions contained in this Department. O.M., dated 30.1.1997 which have been issued in pursuance of the judgement of this Hon’ble Court in Virpal Singh Chauhan’s case.  Hence, this petition is for clarification of the stand that the principle on seniority laid down  by this Hon’ble court on 10.10.1995 in the case of Union of India and Ors. Vs. Virpal Singh Chauhan etc. in CA No.9272 of 1995 and reiterated by this Hon’ble court on 1.3.1996 in the case of A.B.S.K. Sangh Vs. Union of India in Special Leave Petition (Civil) No.16812 of 1996 has not been over-ruled by the ruling of this Hon’ble Court in its judgement dated 7.5.1997 in Jagdish Lal’s case in CA No.3449 of 1997 and consequently  the legal validity of the instructions in this department O.M. of 30.1.97.”

2.107   DOP&T has made prayer in the above said I.A. as under:-

“Pass appropriate directons/order confirming that the principle on seniority laid down by this court in the case of Union of India Vs. Virpal Singh Chauhan etc. and reiterated by this Hon’ble Court in the case of Ajit Singh Januja, Vs. State of Punjab as also in A.B.S.K. Sangh’s  case has not been over-ruled by the ruling of this Hon’ble court in its judgement in Jagdish Lal’s case and, therefore, the instructions contained in this department O.M. 20011/1/96-Estt(D) dated 30.1.1997 are valid in law.”

 

2.108   Thus, from the above act of the DOP&T  filing IA (Intervener Application)  in support Ajit Singh case the Committee have to conclude that the bureaucracy of DOP&T was fully determined to see that the latest law laid down by Hon’ble Supreme Court in Jagdish Lal’s case may not be allowed to prevail and pursuance of this design/scheme they have, left no stone unturned and made every endeavour to achieve this objective.  They filed this I.A. contrary to the commitment to the cause of down trodden, who had suffered for centuries to put again a handicap in advancement of the people of this class.

 

2.109   It has also been brought to Committee’s notice through the representations received from the various SCs/STs Organisations that Railway has also filed the Intervener Application Nos. 10-12 of 1998 in Hon’ble Supreme Court.  In interlocutory Application No.1-3 of 1997 in Civil Appeal No.3792-3794 of 1989 of State of Punjab.

The relevant paras of I.A. are  reproduced below:

 

2.110   Para1:  I.A.. Numbers 1 to 3 of 1997 has been filed by the State of Punjab inter alia for a direction/clarification from this Hon’ble Court as to which of the two judgements, namely Ajit Singh Januja (1996-2 SCC 727) or Jagdish Lal Vs. State of Haryana (1997 6 SCC 538) is to be followed by the State of Punjab in regard to fixation of inter-se seniority between the Scheduled Caste and General category candidates in promotional posts. Any directions/clarifications that may be given by the Constitutional Bench in above matter, would have implications not only in regard to the State of Punjab but also other States and also the Union of India and its various departments including the Railways.  It has, therefore, become necessary for the applicants herein to file the present application for impleadment/intervention so that all relevant aspects could be placed before this Hon’ble Court when the matter is being considered as to which of the two judgements is to be followed.

 

2.111   In this context, it is relevant to mention that Hon’ble Courts’ Judgement in Ajit Singh Januja case is based on the Judgement of the case of Virpal Singh Chauhan on the basis of this Hon’ble Court’s understanding  of certain circulars of the Railways, has been fitted in Ajit Singh Januja’s case for general application. Subsequently this Hon’ble Court in Jagdish Lal’s case has clarified that the ratio in the case of Virpal Singh Chauhan and Ajit Singh Januja are not of general application.  This Court further clarified that the statutory rules will govern the inter-se-seniority between the reserved candidates and general category candidates.”

 

2.112   2:         In this context, it is submitted that this Hon’ble Court in Virpal Singh Chauhan’s case gave certain directions by interpreting a portion of letter dated 31.8.82 printed at page 512 of the Brochure of Reservation for Scheduled Castes Castes and Scheduled Tribes in the Railway Services Third Edition 1985 without having the full text of the said letter before this Hon’ble Court.  The applicant states and submits that constructions placed on a certain portion of the letter dated 31.8.82 without referring to the full text and to the context in which said letter was issued and the categories  to which the same applied, has resulted in certain erroneous directions being given in Virpal Singh Chauhan’s case which have been followed in Ajit Singh’s case and Jagdish Lal’s case is to be determined by the Constitutional Bench of this Hon’ble Court it is submitted that the judgement of this Hon’ble Court in Virpal Singh Chauhan’s case also would fall for consideration, the applicant Railways are approaching this Hon’ble Court with the present application for implementation/intervention so that all the relevant facts can be placed before this Hon’ble Court so that Constitutional Bench is fully apprised of all the relevant circulars/rules etc.  in order to enable this Hon’ble Court in examining the correctness of the judgement of this Hon’ble Court in the case of Virpal Singh Chauhan/”

 

2.113   Para 6

The perusal of the full text of the letter dated 31.8.82 would clearly show that it applies to non-selection  posts as well as to selection posts.  Further, that inter-se-seniority as per the panel position is applicable only in regard to persons who are promoted from the subsequent panel will rank junior to persons promoted from an earlier panel irrespective of their seniority in the lower grade, that it applied to non-selection as well as to selection posts.

 

2.114   This Hon’ble Court, however, has an erroneous impression that the panel means panels prepared at the initial entry grade for appointment or panels of selection posts and that seniority reflected in the panel prepared for initial recruitment at the lowest grade or selection post panel would govern inter-se-seniority among the general category candidates and the reserved category candidates in promoted posts.  It is submitted that the said erroneous impression is totally incorrect and arose on account of the full text of the letter dated 31.8.82 and other related documents being not brought before Hon’ble Court while deciding Virpal Singh Chauhan’s case.”

 

            Para 9

In the I.A. No. 1-3  of 1997 which is before the Constitution Bench be considering the correctness of two judgements and consequently the judgement in Virpal Singh Chauhan’s case also, the department has considered it its duty to place all the relevant facts correctly before this Hon’ble Court so that this Hon’ble Court is able to be  apprised the facts correctly and rectify the error in Virpal Singh Chauhan’s case and lay down the law  in regard to its application.”

 

2.115   The Committee have also gone through the Additional Affidavit filed in the Railways I.A. Nos. 10-12 of 1998 which was allowed by Hon’ble Supreme Court and in  pursuance of what liberty granted by Supreme Court and giving details of Railway Board circulars letter/relevant decision of above case.

 

2.116   The relevant paras are reproduced below:-

 

It is further submitted that this Hon’ble Court in Virpal Singh Chauhan’s case proceeded on erroneous assumption that all posts of Guards are non-selection posts.  It is stated that there are different categories of guards in different pay scales of Rs. 330-560 subsequently re-designated as goods guard in the pay scale of Rs. 1200-2040, is a selection post.  Similarly, guards grade A in the scale of Rs. 425-600 and guards in Grade A special in the pay scale of Rs. 425-640 subsequently re-designated as passenger guards in the pay scale of Rs. 1350-2200 is a selection post.  Certain categories of grade A special in the pay scale of 425-640 and grade A Special in the Super Fast Train in the pay scale of Rs. 425-700 subsequently re-designated as Mail Guard in the pay scale of 1400-2600, is non-selection post.  This Hon’ble Court, without examining the correct details in this regard, erroneously assumed that all the higher grade post in the category of Guards are non-selection posts.  Further Hon’ble Court erroneously assumed that in regard to guard Grade C appointment is made by way of direct recruitment.  It is stated that it is factually incorrect.  Appointment to Guard C is made on the basis of 85% by promotion by selection from the following categories:-

1.         Training Clerk

2.         Ticket Collectors

3.         Commercial Clerks

4.         Shunting Jamadar

5.         Switchman

6.         Assistant Guards

 

And the remaining 15% is filled by way of Limited Departmental Competitive Examination from persons working on the above said six categories whose educational qualification is at least graduation and are below 40 years of age in the general category, and 45 years of age in the SC/ST  categories.  As such there was no direct recruitment in Guard Grade C.  This Hon’ble Court however, erroneously assumed that appointment in the said grade is made on the basis of direct recruitment.

 

2.117   “It is stated and submitted that the judgement of this Hon’ble Court in Virpal Singh Chauhan’s case to the extent it holds that seniority of the persons in the lowest grade shall be carried over to all higher posts requires reconsideration therefore, it is humbly prayed that the said judgement be reopened and reviewed.”

 

2.118   The Committee regret to note that DOP&T have gone beyond their limit to pray  that the directions may be given to confirm the earlier judgement of Virpal Singh Chauhan and thereby approving the judgement given in Ajit Singh Januja’s case without taking note of the factual mistakes in deciding Virpal Singh Chauhan case such as that all the posts of the guards were not classified as non selectin posts which were assumed by the court and not taking into consideration the full text of the Railway Board's letter dated 31.8.82.  The Committee agree with the Confederation’s observations that this was done to safeguard the interest of general candidates and ignoring the interest of reserved community candidates.

 

2.119   Hon’ble Supreme Court constituted a Constitutional Bench consisting of the following judges;

            1.         Hon’ble Justice Dr. A.S. Anand, Chief Justice

            2.         Hon’ble justice Shri K. Venkataswamy

            3.         Hon’ble Justice Shri G.B. Patnaik

            4.         Hon’ble Justice Shri S.P. Kurdukar

            5.         Hon’ble Justice M. Jagannadha Rao

 

2.120   In the above said case following Advocate appeared for petitioner/respondent. S/Shri C.S. Vaidyanathan, Additional Solicitor General, Harish N. Salve, Dr. Rajeev Dhavan, Hardev Singh, D.D. Thakur, L.G. Havanur, K. Parasaran and M.N. Rao, Senior Advocates  (Rajiv Kr. Garg, Preetesh Kapur, Atul Sharma, N.D. Garg, Rajiv Dutta, Ms. Enakashi Kulshreshtha, Uday Kumar, Kapil Sharma, Hemant Sharm, K.C. Kaushik, D.S. Mehra, Ms. Anil Katiyar, Chand Kiran, Dr. K.S. Chauhan, E.C. Vidya Sagar, Muqbal Chand, Prof. D.N. Sadashiv, A. Raghunath, A.Subba Rao, Anurag Mathur, Pradeep R. Tiwary, A. Mariaputham, Ms. Aruna Mathur, A.D.N. Rao, R.S. Suri and Ms. Sushma Suri, Advocates, with them) for the appearing parties.

 

2.121   The Committee find it  evident that on behalf of the DOP&T as well as for Railway Shri C.S. Vaidyanathan the then Additional Solicitor General defended the position for both the Departments in which the two I.A.’s were running in a different directions meaning thereby Railways wanted correction of the factual mistake and re-opening of the issue decided in Virpal Singh Chauhan case whereas DOP&T wanted a confirmation of the principle laid down by the Virpal Singh Chauhan case.  Thus in fact nobody defended the position as brought out in the Railways IA No. 10 to 12.  In the absence of proper pleading the Committee can guess very well the  outcome of the case.  In the opinion of the Committee it should be the duty of all officers concerned to prepare a ‘brief’ for the  Attorney General, Solicitor General etc.  appearing before courts to plead for retention of existing benefits enjoyed by the Scheduled Caste/Scheduled Tribes and not for taking away those benefits.

 

2.122   It was also brought to The notice of the Committee that the then Railway Minister (Shri Nitish Kumar) approved the engagement of Shri V.R.  Reddy, Sr. Advocate and  ex-Additional Solicitor General of India for appearing on behalf of the Railways  before the Supreme Court in IA No. 10 to 12 of 1998.  But he was not allowed to appear on behalf of the Railways because Secretary/DOP&T spoke to the Chairman, Railway Board in this regard and questioned the Railway’s right to file the IA in this case.  He also objected for the engagement of Shri V.R. Reddy and as a result of which the appearance of Shri V.R. Reddy was dropped on the basis of telephonic request to Shri V.R. Reddy made by Shri K. Balakesari, Mamber Staff, Railway Board without bringing it on records.  Thus it is evident how carelessly reservation policies are defended in the court of law.

 

2.123   Thus, in the opinion of the Committee it goes without saying that people are encouraged by top bureaucracy to file cases before court to challenge the reservation policies.  Thereafter, the counter affidavit of the replies are filed in a perfunctory manner and the appearance of all those Advocates is made who are either not fully conversant with the case or having no expertise in the reservation rules.  They take little care to defend the cases due to lack of interest as well as lack of financial incentives to them and as and when these cases are lost the judgement is implemented by partisan bureaucracy saying that if judgement is not implemented, there may be contempt case against them.  This vicious cycle goes on repeating and will continue to recur in future also unless and until the system is not overhauled.  The  SCs/STs  as individual and their Organisations are not in a better financial position to undertake these litigation and afford fees of well renowned Advocates whose fees are very exorbitant beyond their reach which run into Rs. 10,000/- to Rs. 1,00,000 per appearance per day.  In the absence of the best available legal talents the Dalits cannot get justice.   The Committee strongly recommend that only Attorney General/Advocate General or a Private Lawyer of eminance should be engaged at all stages of hearing to defend cases in Supreme Court/High Courts whenever reservation principle beneficial to the Scheduled Castes/Scheduled Tribes are challenged.

 

2.124   The Committee, therefore, recommend that whenever due to any judgement of the Hon’ble Supreme Court any change in the existing rules of reservation for the SCs/STs is required to be made which will result in taking away some benefits enjoyed by them, it should be the duty of the officers concerned.

1.         to consult the National Commission for SCs and STs to ascertain their opinion on the judgement;

2.         to clearly point out to the Minister/Cabinet that the judgement take away some service benefits enjoyed by the SCs/STs  and

3.         to suggest to the Cabinet if the effect of the judgement could be nullified by an amendment of the Constitution.