Author: Abhishek Varshney

Edited by: Sulesh Choudhary

ABSTRACT / HEADNOTE 

Some of the questions that have dominated Indian reservation jurisprudence for more than half a century are whether the State could make a provision for reservation in promotion under Article 16(4)? If yes, then in what manner? The answers to these questions remain unresolved, in several respects, till date.

In Union of India and Ors vs. Virpal Singh Chauhan and Ors, it was held that SCs/STs who were given the benefit of promotion would not get consequential seniority. Hence, Article 16(4-A) was further amended by the Constitution (Eighty-Fifth Amendment) Act, 2001 giving them the benefit of consequential seniority.

Keywords (Minimum 5): Constitution, Reservation, Service Law, Scheduled Castes, Scheduled Tribes

CASE DETAILS

INTRODUCTION AND BACKGROUND OF JUDGEMENT

These appeals/writ petitions raise an important but difficult question concerning the nature of rule or reservation in promotions obtaining in the Railway service and the rule concerning the determination of seniority between general candidates and candidates belonging to reserved classes in the promoted category. The issue is best illustrated by taking the facts in the first of these matters, viz., Union of India and Ors. v. Virpal Singh Chauhan – civil appeal No.9272/95 arising from Special Leave Petition (C) No.6468 of 1987. The appeal is preferred against the judgment of the Central Administrative Tribunal (Allahabad Bench) disposing of Original Application No.647 of 1986 with certain directions. [It was originally filed as a writ petition in the Allahabad High Court which, on the constitution of the Central Administrative Tribunal (Allahabad Bench), was transferred to the Tribunal.] It was filed by, what may be called for the sake of convenience, employees not belonging to any of the reserved categories (hereinafter referred to as “general candidates” – which means open competition candidates). The railway Administration as well as the employees belonging to reserved categories, i.e., Scheduled Castes and Scheduled Tribes were impleaded as respondents. The writ petition/original application came to be filed in the following circumstances:

Sri Altaf Ahmed, learned Additional Solicitor General questioned the correctness and validity of the principles enunciated by the Tribunal in Para-26 of its judgment. He submitted that according to the Indian Railway Establishment Manual, seniority is determined by the date of promotion/appointment to the concerned grade and that the said principle cannot be altered or departed from in the name of ensuring equality. Once the rule of reservation is remembered that in the higher echelons of administration, representation of Scheduled Castes/Scheduled Tribes has been inadequate all these years, there is nothing surprising if the members of Scheduled Castes/Scheduled Tribes get promotions sooner and earlier than the general candidates. This is the natural consequence of applying the rule of reservation in promotions – and not an unintended one. The said consequence cannot, therefore, be a basis for evolving a rule which partially off-sets the very purpose and meaning of the rule of reservation. Sri Altaf Ahmed further submitted that effecting promotions in accordance with the roster vacancies are not and cannot be called “fortuitous promotions”. They are regular vacancies and promotion to them is a regular promotion. He relied upon the decision of the Central Administrative Tribunal in Durga Charan Haldar v. Union of India (Original Application No.854 of 1990) wherein it has been held that the date of promotion, effected following the forty-point roster/hundred-point roster, is determinative of seniority. He submitted that the decision of the Central Administrative Tribunal (Patna Bench) to the contrary is the subject matter of appeal in this batch. The Patna Tribunal has followed the decision of the Allahabad Tribunal in Virpal Singh Chauhan.

It may be noticed that of the five grades in the Station Masters’ category, two are non-selection posts while the remaining three are selection posts. While in the case of non-selection posts the rule enunciated in the main opinion (Virpal Singh Chauhan) would be applicable, in the case of selection posts, the rule explained herein has to be followed. We may clarify that Rules (i) and (ii) in Para 28 of Virpal Singh Chauhan apply to both selection and non- selection posts. Rule (iii) also applies to both but subject to the above rider. As explained in the main opinion, while there is no question of a “panel” being prepared at the time of promotion to non-selection posts, a panel has to be prepared for promotion to selection posts.

FACTS OF THE CASE

Procedural Background of the Case

1. The case was initially adjudicated by summary court martial, which was directed to reconsider the punishment in the light of petitioners claims regarding its severity.
2. The rules governing the proceeding stipulated that the defence nominee must be in the form the same division as the petitioner which was a point of contention.
3. The petitioner waste concern regarding the vagueness of charges, specifically noting that the offensive language was not explicitly detailed in the statement of allegations.
4. Subsequently, the revision petition filed by the rotational was dismissed, and the original order of removal from service was confirmed.
5. The petitioner short release under Article 226 of the constitution of India which allows for judicial review of administrative action.

Factual Background of the Case

1. The petitioner faced removal from service based on three allegations of misconduct.
2. The specific allegations included the use of filthy language and an attempted assault on assistant sub inspector Gopi Singh when confronted about his behaviour.
3. The petitioner contended that the penalty imposed was disproportionate to the alleged misconduct arguing that the punishment was not commensurate with the offences charged.

LEGAL ISSUES RAISED

1. Was the punishment of removal from service disproportionate to the alleged commit misconduct?
2. Were the charges against the traditional work and lacking sufficient details?
3. Did the process real rules regarding the appointment of defence nominee violet the petitioner’s right?

PETITIONER / APPELLANT’S ARGUMENTS

1. The counsels for Petitioner / Appellant submitted that they are considering the seniormost candidates for the vacancies arising in the category of Superintendents and, therefore, no objection can be taken with the said course by anyone.

RESPONDENT’S ARGUMENTS

1. The counsels for Respondent submitted that the petitioner joined the Railway as a clerk and was later promoted as Head Clerk and later as Assistant Superintendent.
2. They said that now the juniors (who are Scheduled Castes/Scheduled Tribes) are given more preference in comparison to him, who is more senior, for the post of superintendent.
3. They also provided three instances for the same and also provided details for the same.
4. They said that that the total sanctioned strength is thirteen and three vacancies are present. Of the total, eight are Scheduled Castes/Scheduled Tribes while only two are of general category. Now, they want to fill those vacancies with Scheduled Castes only, thereby reserving the post for them only.

RELATED LEGAL PROVISIONS

Article 14: – “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[1]

Article 16(4): – “Equality of opportunity in matters of public employment. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”[2]

JUDGEMENT

RATIO DECIDENDI

The court upheld the dismissal of the revision petition and confirm the order of removal from the service it concluded that the circumstances does not warrant interference with Article 226 of the constitution.

CONCLUSION & COMMENTS

In the light of the above considerations, the court dismissed the writ petition, affirming the decision of the lower court and the summary court-martial.

The removal from service was deemed justified based on the evidence presented and the procedural compliance observed throughout the proceedings.

REFERENCES

Important Cases Referred

• Indra Sawhney v. Union of India, [1992] Suppl. 3 SCC 217
• National Federation of State Bank of India v. Union of India and Ors., [1995] 3 SCC 432
• R.K. Sabharwal v. State of Punjab (1995 (2) S.C.C.745).

Important Statutes Referred

• Constitution of India, 1950

ENDNOTES:

[1] Article 14, Constitution of India (1950).

[2] Article 16(4), ibid