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27.08.2010

W.P.C.T. 261 of 2008

C.A.N. 3238 of 2010

Mr. Joydeep Kar,

Mr. Nilay Sengupta,
… For the petitioners.

Mr. Farook M. Razack, A.S.G,

Mr. Pratip Kumar Chatterjee,
Mr. Swapan Dutta
… For the Union of
India.
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Heard the learned Advocates appearing for the parties.

A recent office memorandum issued from the Ministry of

Personnel, Public Grievances and Pensions Department of Personnel

and Training, Government of India dated 10th August, 2010 has been

placed before us. In terms of the said circular, the judgment passed in

the case R.K. Sabharwal and others vs. State of Punjab and others

reported in (1995) 2 SCC 745, which earlier was intended to be

implemented by O.M. No. 36028/17/2001-Estt. (Res.) dated 31st

January, 2005, stood modified by withdrawing the said circular letter

and clarifying the issue that implementation of the said judgment of

R.K. Sabharwal and others vs. State of Punjab and others should be

done with effect from 2nd July, 1997 by giving effect of the office

memorandum effective from 2nd July, 1997. This office memorandum

reads such:-

“Subject: Reservation in promotion – Treatment of SC/ST

candidates promoted on their own merit.
------------

The undersigned is directed to refer to this Department’s

O.M. No. 36028/17/2001-Estt. (Res.) dated 11th July, 2002 which
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clarified that SC/ST candidates appointed by promotion on their

own merit and not owing to reservation or relaxation of
qualifications will be adjusted against un-reserved points of the
reservation roster and not against reserved points. It was
subsequently clarified by this Department’s O.M. No.
36028/17/2001-Estt. (Res.) dated 31.1.2005 that the above referred
O.M. took effect from 11.7.2002 and that concept of own merit did
not apply to the promotions made by non-selection method.

2. Central Administration Tribunal, Madras

Bench in O.A. NO. 900/2005 (S. Kalugasalamoorthy
v/s. Union of India & Others) has set aside the O.M.
No. 36028/17/2001-Estt. (Res.) dated 31.1.2005 and
held that when a person is selected on the basis of his
own seniority, the scope of consideration and counting
him against quota reserved for SCs does not arise. The
High Court of judicature at Madras in the matter of
UOI v/s. S. Kalugasalamoorthy (W.P. No. 15926/2007)
has upheld the decision of the Central Administrative
Tribunal.

3. The matter has been examined in the light of

the above referred judgments and it has been decided
to withdraw O.M. No. 36028/17/2001-Estt. (Res.)
dated 31.1.2005 referred to above. It is clarified that
SC/ST candidates appointed by promotion on their
own merit and seniority and not owning to reservation
or relaxation of qualifications will be adjusted against
unreserved points of reservation roster, irrespective of
the fact whether the promotion is made by selection
method or non-selection method. These orders will
take effect from 2.7.1997, the date on which post
based reservation was introduced.

4. These instructions may be brought to the notice of all

concerned.”

Having regard to said office memorandum the learned

Additional Solicitor General very frankly has submitted that the

respondent in the instant case is agreeable to implement office

memorandum dated 10th August, 2010, in respect of the present case is

concerned. The present lis was brought by the writ petitioners before

the learned Central Administrative Tribunal below seeking

implementation of the review DPC as held on 9th September, 2004

giving effect of the judgment delivered in R.K. Sabharwal (supra) on

considering the effective date of implementation as 2nd July, 1997 and

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praying order/direction to withdraw, rescind, cancel and set aside the

subsequent review DPC dated 7th October, 2005.

The learned Advocate for the writ petitioner, however, has

contended before us by filing a supplementary affidavit wherein a

judgment of Central Administrative Tribunal has been annexed

including the order passed by the Delhi High Court allowing

withdrawal of the writ application, to this effect that the judgment

delivered in R.K. Sabharwal (supra) is a judgment in rem and a

judgment under Article 141 of the Constitution of India being the law

of the land was required to be implemented by the respondents herein

by giving effect of implementation memo from 10th February, 1995, the

date of judgment passed in R.K. Sabharwal (supra). In fact, it is the

contention of the learned Advocate for the writ petitioner for the first

time in this writ Court that the effective date of the judgment passed in

R.K. Subharwal (supra) cannot be modified, changed and varied by any

executive decision as that would be nothing but an action to sit over the

views expressed in the R.K. Sabharwal (supra) which is a judgment

under Article 141 of the Constitution of India, a binding order and

judgment upon all the Courts, Tribunals and the statutory authorities all

over India. Learned Advocate for the writ petitioner, accordingly, prays

leave by filing an application seeking amendment of the original writ

application to incorporate a prayer so that the writ petitioner would be

given benefit of the judgment of Apex Court by making a fresh review

DPC in the angle of issue as finalised in R.K. Sabharwal (supra) by

giving its effect from 10th February, 1995. This submission of the

learned Advocate has been opposed by the learned Additional Solicitor

General by contending inter alia that in the present writ application

which is an outcome of the jurisdictional contour detailed and confined

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in terms of the judgment passed in the case L. Chandra Kumar vs.

Union of India reported in AIR 1997 SC page 1125 adjudicatory field

cannot be extended further incorporating any new prayer with new

pleadings which were not taken before the learned Tribunal below. This

issue is a contentious issue. This point to be heard, if any, application

for amendment is filed by the writ petitioner. Since at the present

moment respondents are facing problem to provide the promotional

berth to many candidates who may retire very soon and on that fact a

prayer has been made to allow implementation of the decision of

review DPC dated 9.09.2004 by giving its effect from 2nd July, 1997,

on the basis of the office memorandum dated 10th August, 2010 as

already quoted above.

Considering the prayer, in modification of our earlier interim

order as passed, we are passing the interim order to this effect that the

respondents would be at liberty to implement the office memorandum

dated 10th August, 2010 which means to decide the promotional issue

by implementing the decision of the review DPC held on 9th

September, 2004 by giving its effect from 2nd July, 1997 and thereby to

provide respective promotional berth to the respective candidates who

would come within the zone of consideration on the basis of review

DPC decision dated 9th September, 2004 without prejudice to the writ

petitioner’s contention as urged today and for which appropriate

amendment application would be filed by them as submitted by the

learned Advocate for the writ petitioner.

It is made clear that in terms of the interim order any

promotion or adjustment of the staff as to be made will abide by the

result of this writ application.

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It is made clear that the decision of the review DPC of 9th

September, 2004 should be given effect to by considering the effect of

such DPC from 2nd July, 1997 and on that basis promotion orders to be

issued and further promotion could be dealt with.

It is further made clear to avoid any confusion that first

promotion order to be made on the basis of review DPC of 9th

September, 2004 and thereafter further promotion of candidates under

all India zones would be considered.

Let this matter appear two weeks hence in the list.

Let xerox plain copy of this order duly countersigned by the

Assistant Registrar (Court) be given to the learned Advocates appearing

for the parties on usual undertaking.

(Pratap Kumar Ray, J.)

(Mrinal Kanti Sinha, J.)