At, Central Administrative Tribunal Chandigarh Bench
By, THE HONOURABLE MR. JUSTICE L.N. MITTAL
By, MEMBER (J) & THE HONOURABLE MRS. RAJWANT SANDHU
By, MEMBER (A)
For the Applicant: R.K. Sharma, Advocate. For the Respondents: D.R. Sharma, Advocate.
L.N. Mittal, Member (J).
1. Grievance of applicant Sukhwinder Singh in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, is against grant of reservation in promotion by official respondents no.2 & 3-Bharat Sanchar Nigam Limited (BSNL).
2. The applicant has alleged that he joined the erstwhile Department of Telecom (DOT) of Union of India (UOI)-respondent no.1 as Junior Telecom Officer (JTO) by way of direct recruitment in the year 1989. He was promoted to the post of Sub Divisional Engineer (SDE) on 07.12.2001. BSNL was incorporated w.e.f. 01.10.2000. The applicant was absorbed in BSNL w.e.f. 01.10.2000.
3. Next channel of promotion from SDE is to the post of AGM/Divisional Engineer (T), which is governed by BSNL Management Services Recruitment Rules, 2009 (Annexure A-6). BSNL follows the instructions of Government of India in the matter of reservation for Scheduled Castes and Scheduled Tribes. Hon’ble Supreme Court in the case of M. Nagaraj & Others Vs. Union of India and others 2006 (8) SCC 212 held that for making reservation in promotion for SCs and STs, State has to collect quantifiable data showing backwardness and inadequacy of representation of that class in public employment besides compliance with Article 335 of the Constitution. Catch up rule also has to be followed as held by Hon’ble Supreme Court in Union of India Versus Veerpal Singh Chauhan, JT 1995 (SC) 231 followed by Hon’ble Punjab and Haryana High Court in CWP No.13218 of 2009 decided on 15.07.2011 titled as Lachhmi Narayan Gupta Versus Jarnail Singh and reiterated by Hon’ble Supreme Court in judgment dated 27.08.2015 in Civil Appeal Nos.6631-6632 of 2015 in the case of S. Panneer Selvam and others Versus Government of Tamil Nadu and others. According to catch up rule, if junior employee is promoted on the basis of reservation and General Category senior employee is promoted later on, the senior general category employee catches up his seniority over the reserved category employee. The official respondents have not collected any quantifiable data as per M. Nagaraj (supra). Consequently, there can be no reservation in promotion. Respondents have promoted some junior employees from the post of SDE to the post of AGM/DE(T) without applying catch up rule, but the applicant shall file separate OA for the same.
4. Grievance of the applicant in the instant OA is that respondents no.2 & 3 have again initiated process to promote SDEs, who are juniors to the applicant as per latest seniority list, by granting reservation in promotion. For this purpose, letter dated 03.06.2015 (Annexure A-1) was issued calling for APARs of applicants junior SDEs of reserved category for promotion by way of reservation in promotion, followed by letters dated 22.07.2015 (Annexure A-2), 04.08.2015 (Annexure A-3), 24.08.2015 (Annexure A-4) and 18.09.2015 (Annexure A-5). This action is against the law declared by Hon’ble Supreme Court in M. Nagaraj (supra). It was also followed by this Tribunal in order dated 26.05.2015 (Annexure A-11) in OA No.060/01043/2014 Krishan Dutt and Others Versus Union of India and Others. The applicant has accordingly sought quashing of letters (Annexures A-1 to A-5) to the extent of following reservation in promotion from the post of SDE(T) to the post of AGM/DE(T). Consequent direction to respondents is also claimed to consider and promote the applicant and others on the basis of seniority without applying reservation in promotion from SDE(T) to the post of AGM/DE(T) and to initiate the process of promotion by considering all in the zone of consideration. Private respondents no.4 & 5 have been impleaded, who belong to reserved category and are juniors to the applicant.
5. Private respondents no.4 & 5 did not appear, inspite of service.
6. Official respondents no.1 to 3 in their written statement defended their action on the basis of DOPT OM dated 23.01.2014 regarding reservation for SCs, STs and OBCs in services. It has been pleaded that reservation in promotion is being granted as per DOPT instructions.
7. Applicant filed replication wherein he controverted the stand of the respondents and reiterated his own version.
8. We have heard counsel for the parties and perused the case file.
9. Counsel for the parties reiterated the respective stand. Counsel for the applicant contended that in view of judgment in the case of M. Nagaraj (supra), there can be no reservation in promotion as State has not collected quantifiable data to show backwardness and inadequacy of representation of the reserved categories in public employment. Counsel for the respondents submitted that reservation in promotion is being provided to SCs and STs to maintain their quota.
10. We have carefully considered the matter. Admittedly, as per judgment of Hon’ble Supreme Court in the case of M. Nagaraj (supra), official respondents have not collected any quantifiable data regarding backwardness and inadequacy of representation of SCs and STs in the promotional posts. Consequently, there can be no reservation in promotion. The official respondents have, however, started the process of promotion of reserved categories on the basis of reservation in promotion vide impugned letters (Annexures A-1 to A-5). This action of the official respondents is patently illegal and unsustainable in view of the law lay down by Hon’ble Supreme Court in M. Nagaraj (supra) which is law of the land.
11. Contention of counsel for the respondents that reservation in promotion is being granted to maintain quota for the reserved categories, is untenable. Even on pointed inquiry, counsel for the respondents could not even refer to any such plea raised in the written statement. Even otherwise, as already noticed, admittedly official respondents have not collected any quantifiable data as per requi
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rement of M. Nagaraj (supra) and other judgments and, therefore, there can be no reservation in promotion. 12. Resultantly, the instant OA is allowed. Letters (Annexures A-1 to A-5) are quashed to the extent of following reservation in promotion from the post of SDE(T) to the post of AGM/DE(T). Official respondents are directed to consider the applicant and others within the zone of consideration for promotion from SDE(T) to the post of AGM/DE(T) without applying the principle of reservation in promotion. Official respondents are restrained from effecting promotion in the aforesaid cadre by applying reservation in promotion. No costs.