Back
2019 Supreme(Guj) 1124
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, ALPESH Y. KOGJE, JJ.
F. Roy Choudhary and Ors. – Appellants
Versus
Union of India and Ors. – Respondents
R/Special Civil Application No. 3099 of 2005
Decided On : 16-09-2019
Advocate Appeared:
For the Appellant :G.M. Joshi, Senior Advocate
For the Respondents:Niral R. Mehta, Nilay A. Thaker and Shalin N. Mehta, Senior Advocate assisted by Vidhi J. Bhatt
Point of Law: Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date
Headnote:
Constitution of India - Articles 226 and 227- Promotion – Services rendered by reserved category candidates in respective cadre since 17 years interest of justice will be served if directions contained made with prospective effect
Facts of the Case:
It was the case of the petitioners that the petitioners who were discharging their duties as Inspectors in the Customs and Central Excise Department as direct recruits or by promotion between 1991 to 1995, belonging to general category, formed feeder cadre for the post of Superintendent.
Finding of the Court:
Department has not undertaken the exercise of finding out a candidate of reserved category, scheduled caste or scheduled tribe, who has entered into the feeder cadre as a reserved category candidate upon availing benefit available to the reserved candidate and thereafter treating them to be as such at the time of promotion to the cadre of superintendent. In the opinion of this Court, such exercise was contemplated at the time of preparation of the seniority list, which is the subject matter of the present case
Result:Allowed
JUDGMENT :
Alpesh Y. Kogje, J.
1. This petition under Articles 226 and 227 of the Constitution of India is filed challenging the judgment and order dated 09.09.2004 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No. 529 of 2002. Under the impugned judgment and order, the Tribunal dismissed the application of the petitioners which was challenging promotions of respondent Nos. 4 to 116.
2. Before the Tribunal, it was the case of the petitioners that the petitioners who were discharging their duties as Inspectors in the Customs and Central Excise Department as direct recruits or by promotion between 1991 to 1995, belonging to general category, formed feeder cadre for the post of Superintendent.
2.1. Before the tribunal, it was the case of petitioners that the respondent no. 2 appears to have ignored this important principle laid down by the Hon'ble Supreme Court of India and has granted promotion to the SC/ST candidates far in excess to their quota and their entitlement. From the promotion order Annexure A/2 it can be seen that what appears to have been done is that 166 SC/ST candidates have been given promotion considering their seniority in the lower grade of Inspectors and they are given promotion along with their colleagues in general category. The last 113 promotions are en bloc in favour of reserved categories of SC/ST after giving regular promotions to all candidates including reserved candidates is bad in law. Firstly it violates the ratio laid down by the Hon'ble Supreme Court and permits the reserved category candidates who are inducted in the feeder cadre by availing of accelerated promotion/appointment by virtue of their belonging to reserved categories to compete with general category candidates on general category vacancy. Secondly this procedure completely gives a go by to the roster and makes it completely redundant. By this strange method of giving promotions to the reserved candidates the percentage of their representation has actually come up to 43% as against 22.5% reserved for them.
2.2. That all the reserved category candidates have already availed of preferential treatment at the lower level by virtue of availing of reservation for entry as inspector either by promotion or direct appointment. To further promote such reserved class candidates to the post of Superintendent by permitting them to compete with the general category candidates and to grant them promotion simply on the basis of their seniority over general candidates achieved through accelerated promotion/appointment would amount to great injustice to the applicants and other general category candidates. Not just this, but to further provide for full quota of reservation for SC/ST over and above the SC/ST promotions granted in violation of the Supreme Court decision amounts to double reservation and complete denial of rights to the general category candidates.
2.3. That the reservation to the post of Superintendent for Scheduled Caste category was 15% and for Scheduled Tribe, 7.5%. Accordingly, when 642 Inspectors were promoted to the post of Superintendent by order dated 23.09.2002, 279 persons were belonging to Scheduled Caste and Scheduled Tribe category. As a result, percentage of reserved category candidates in the post of Superintendent was at 43%, which was far exceeding the percentage reserved for both the categories.
2.4. In view of this fact situation, the petitioners challenged the order of promotion to the extent of granting promotion to the persons belonging to Scheduled Caste and Scheduled Tribe category in excess to the quota reserved for these categories and with a direction to the respondent authorities to grant promotion by following roster system by considering 22.5% reservation for these two categories. The application also prayed for due date of seniority.
2.5. It was also the case of the petitioners that the respondents, who have been appointed in the post of Inspector (feeder cadre)
