All India Equality Forum vs M/o Railways on 31 December 2018

1. 1. All India Equality Forum,

2. 2. Amrt Saxena S/o Umesh Chander Saxena

3. 3. Prasad P. Kalviit

4. 4. Rajendra N. Patil Nivrutti Patil

5. 5. Nanaseb B. Bari

6. 6. Chanchal Ramesh Urbarkar ...Applicants **Vs.**

2. 2. The General Manager, Headquarters Office, Central Railway, CSTM, Mumbai-400001.

3. 3. The Divisional Railway Manager, Office of the Divisional Railway Manager, Central Railway, Bhusawal Division, Bhusawal, State of Maharashtra - 425201.

4. 4. Ashok Nana Kharat, Working as LP (Mail) under the Divisional Railway Manager, Office of the Divisional Railway Manager, Bhusawal Division of Central Railway, Bhusawal-425201.

5. 5. Prahard Kondiram Mhaske, Working as LP (Mail)

1. 1. Kiran Ramakant Dalvi

2. 2. Santosh Kumar Yadav

3. 3. Sandeep Gusain

4. 4. Smt.Prawara Nitin Patil. . .**Applicants.**

**Vs.**

1. 1. Union of India, through Secretary, Railway Board, Rail Bhawan, New Delhi-110001.

2. 2. The General Manager, Western Railway, Headquarter Office, Churchgate, Mumbai-400020.

3. 3. The Divisional Railway Manager, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

4. 4. Shri Omprakash N. Working as Ticket Examiner, Under the DRM's Office, Western Railway, Mumbai Central, Mumbai-400008.

5. 5. Shri Prakash Shantaram Tayade Working as Ticket Examiner, Under the DRM's Office, Western Railway, Mumbai Central, Mumbai-400008.

6. 6. Shri Roodmal Raiger, Working as Ticket Examiner, Under the DRM's Office, Western Railway, Mumbai Central, Mumbai-400008.

7. 7. Shri Ramchandra Meena, Working as Ticket Examiner, Under the DRM's Office, Western Railway, Mumbai Central, Mumbai-400008.

**. . .Respondents.**

Sudharshan Chintankar son of Jacob Gunjilappa

**. . .Applicant**

**Vs.**

1. 1. Union of India, through Secretary, Railway Board, Rail Bhawan, New Delhi-110001.

2. 2. The General Manager, Headquarters Office,

OA Nos/727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

- 7. Smt. Neeta Rahul Sawant, Working as Head Canteen Manager, Chief Workshop Manager, Central Railway, Matunga Workshops, Matunga, Mumbai-400019.

- 8. Shri Pankaj S. Dighe, Working as Head Canteen Manager, Chief Workshop Manager, Central Railway, Parel Workshops, Parel, Mumbai-400012.

- 9. Smt. Renika Nidgudi, Working as Head Canteen Manager, Chief Workshop Manager, Central Railway, Parel Workshops, Parel, Mumbai-400012.

- 10. Shri Manoj R. Devgiya, Working as Head Canteen Manager, Chief Workshop Manager, Central Railway, Matunga Workshops, Matunga, Mumbai-400019.

... Respondents

- 1. Dheerendra Singh son of Digvijay Singh

- 2. Girjesh Kumar Pandey son of Bhagwan din Pandey

- 3. Jayashree Naishadh Tejani W/o Naishadh

- 4. Tapan Mazumdar son of Shiv Prasad Mazumdar

- 5. Prabha Shankar Shukla, S/o. Manpuran Prasad Shukla.

... Applicants

vs.

- 1. Union of India, Through : The General Manager, Western Railway, Headquarters' Office, Churchgate, Mumbai-400020.

- 2. Divisional Railway Manager (DRM), DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 3. Roodmal Raiger, Working as Safaiwalas, under Station Superintendent, Valsad, Western Railway, Valsad, Gujarat.

Station, Western Railway, Mumbai Central, Mumbai- 400008.

8. Charudatta R.Kadam, Working as Platform Porter, under Station Superintendent, Santacruz Station, Western Railway, Santacruz, Mumbai- 400054.

...Respondents.

**5. Original Application No.457/2016**

1. 1. Rahul Murlidhar Tadas Son of Murlidhar D.Tadas

2. 2. Jagdish Padhi Son of Laxmi Narayan Padhi

3. 3. Santosh Mukund Bhat Son of Mukund D.Bhat

4. 4. Jitendra Kumar Singh Son of Om Prakash Singh

5. 5. Vikram Kumar Son of Shri Braj Kishor Prasad

6. 6. Chadrakant Ramdas Andhale Son of Ramdas Mahadu Andhale

7. 7. Rahul Arun Patil Son of Arun Sitaram Patil

8. 8. Gajanan Suresh Sonawane Son of Suresh Pandit Sonawane

9. 9. Anand Kumar Vishwakarma Son of Chhote Lal Vishwakarma

10. 10. Avinash Kumar Tiwari Son of Satya Dev Nath Tiwari

11. 11. Ramdhan Shaligram Dane Son of Shaligram Shivram Dane

12. 12. Kunal Dattaram Patil Son of Dattaram Pandurang Patil

13. 13. Kapil Singh Antar Singh Rajput Son of Antarsingh R.Rajput

14. 14. Ajay Sharma Son of Devendra Kumar Sharma.

15. 15. Kunal Kumar Son of Late Rajendra Prasad

OA Nos/727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

24. Chetan Shirish Patil Son of Shirish Shankar Patil. . . . **Applicants**

**Vs.**

- 1. Union of India, through Secretary, Railway Board, Rail Bhawan, New Delhi-110001.

- 2. The General Manager, Headquarters Office, Central Railway, CSTM, Mumbai-400001.

- 3. DRM (Divisional Railway Manager), DRM's Office, Central Railway, Mumbai Division, Headquarters Office, CST, Mumbai-400001.

- 4. Jaideep Kumar Working as Assistant Loco Pilot under the DRM's Office, Central Railway, Headquarters Office, CST, Mumbai-400001.

- 5. Taruna Gujre, Working as Assistant Loco Pilot under the DRM's Office, Headquarters Office, CST, Mumbai-400001.

- 6. Manoj Ishwarrao Kambale, Working as Assistant Loco Pilot under the DRM's Office, Headquarters Office, CST, Mumbai-400001.

- 7. Nilesb Vidhyadhar Sondole, Working as Assistant Loco Pilot under the DRM's Office, Headquarters Office, CST, Mumbai-400001.

- 8. Satish Ashok Hiwarale, Working as Assistant Loco Pilot under the DRM's Office, Headquarters Office, CST, Mumbai-400001.

- 9. Roshan T.Dive, Working as Assistant Loco Pilot under the DRM's Office, Headquarters Office, CST, Mumbai-400001.

- 10. Dinesh D.Linjewar, Working as Assistant Loco Pilot under the DRM's Office, Headquarters Office, CST, Mumbai-400001. . . . **Respondents.**

1. 11. Vijay Kumar Chandrabhan Pandey Son of Chandrabhan Pandey

2. 12. Krishnakant Upadhyay Son of Ramkripal Upadhyay

3. 13. Vijay Kumar Chauthi Pandey Son of Chauthi Pandey

4. 14. Sanjay Kumar Yadav Son of Rajkishor Yadav

5. 15. Jitendra Vilas Gaikwad Son of Vilas Dhondiram Gaikwad

6. 16. Ashish Anil Dalvi Son of Anil Damodar Dalvi

7. 17. Imran Ali A. Son of Ansar Ali

8. 18. Ravi Shankar Tiwari Son of Shri K.D.Narayan

9. 19. Samir Vinayak Parab Son of Vinayak Anant Parab

10. 20. Mohd. Javed Hasin Shaikh Son of Hasin Shaikh

11. 21. Krunal Shrikant Kandalgaonkar Son of Shrikant Pandurang Kandalgaonkar. **...Applicants**

Vs.

2. 2. The General Manager, Western Railway, Headquarter's Office, Churchgate, Mumbai-400020.

3. 3. DRM (Divisional Railway Manager), DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

4. 4. Ram Bahadur Working as Sr. Goods Guard under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

5. 5. Amresh Kumar Meena, Working as Sr. Goods Guard under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

6. 6. Rambas Meena Working as Sr. Goods Guard under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

OA Nos.727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

...Applicants

vs.

1. 1. Union of India, through Secretary, Railway Board, Rail Bhawan, Ratsina Road, Rafi Ahmed Kidwai Marg, New Delhi-110011.

2. 2. The General Manager, Western Railway, Headquarters's Office, Churchgate, Mumbai-400020.

4. 4. Namita Toppo, Working as Senior Ticket Examiner under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

5. 5. Lilima Minz, Working as Senior Ticket Examiner under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

6. 6. Kanti D.Baria, Working as Senior Ticket Examiner under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

7. 7. Ritesh R.Kamble, Working as Senior Ticket Examiner under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

8. Original Application No.193/2018

Vijay Moreshwar Kashelkar Son of Moreshwar Gopal Kashelkar.

...Applicant

vs.

1. Union of India through: General Manager,

OA Nos 727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016,

1. 1. Ashraf Abubakar Ansari Son of Abubakar Alimohammed Ansari.

2. 2. Gundigara Manish Kumar Son of Gundigara Kanayalal

3. 3. Mansuri Ismail Usmangani Son of Usmangani Yakubhai Mansuri

4. 4. Jagdish D.Rabari Son of DevrajBhai Jaymalbhai Rabari

5. 5. Ravesh Kumar Vishwakarma Son of Shankar Lal

6. 6. Jitendra Kumar Kishanlal Khichi Son of Kishanlal Khichi

7. 7. Rashmikant R.Modi Son of Rashmikant D.Modi

8. 8. Makavana Rajubhai R. Son of Ranchhodbhai T.Makawana

9. 9. Kevat Dharmeshkumar Bhogilal Son of Kevat Bhogilal Kalyanbhai

10. 10. Dinesh Kumar J.Goswami Son of Jayantiqiri P.Goswami.

11. 11. Sunilkumar Ratilal Patel Son of Ratilal Jaganbhai Patel

12. 12. Vinod Kumar Kababhai Rathod Son of Kababhai R.Rathod

13. 13. Momin Mukhtiyarahmed Son of Momin Abidusen M.

14. 14. Milan Patil Son of Chandrakant Patil

15. 15. Kujreshi Mustakahmed Son of Aminbhai

16. 16. Shaillesh Ahir Son of Mafan Bhai

17. 17. Arun Kumar M. Son of Shri Mahabir Prasad Singh

18. 18. Shaikh Fakhruddin M. Son of Shaikh Md. Yusuf A.

19. 19. Ramesh Chand Sharma Son of Rishi Dev Sharma

20. 20. Prakashkumar S.Balolia Son of Shankarbhai R.Balolia

OA Nos. 727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

- (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 5. Rajes Ramchandra Meena, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 6. Ramniwas Sanwaria Pd, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 7. Arvindbhai G. Patel, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 8. Rajeshkumar D. Patel, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 9. Anil Kumar, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 10. Vinod Kr Harswaroop, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 11. Charan Singh K., Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 12. Yogesh Kumar Patel, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 13. Devisingh F. Vasava, Working as Loco Pilot (Goods) under the DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

... Respondents

OA Nos.727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

400013.

...Respondents

11. Original Application No.672/2016

1. 1. Suresh Dahayabhai Patel Son of Dahayabhai Narsibhai Patel.

2. 2. Jayraj Anantkini Son of Anant Moru Kini.

3. 3. Rajendra Prasad Nautiyal Son of Pauphram Nautiyal

4. 4. Abdulla Usmankazi Son of Usman Umar Kazi

Vs.

1. 1. Union of India, through Secretary, Railway Board, Rail Bhawan, Raisina Road, Rafi Ahmed Kidwai Marg, New Delhi-110011.

2. 2. The General Manager, Western Railway, Headquarter's Office, Churchgate, Mumbai-400020.

3. 3. DRM (Divisional Railway Manager), DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

4. 4. Arunbhai G.Patel, Working as Hd. TE, under DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

5. 5. Bainwad Shivaji Ramji, Working as Hd. TE, under DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

6. 6. Janak Singh Harpalsingh, Working as Hd. TE, under DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

7. 7. Dineshchandra Solanki, Working as Hd. TE, under DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

8. 8. Hasmukh M.Patel, Working as Hd. TE, under

OA Nos.7272013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 142/2014, 165/2013, 689/2013, 629/2012

Vs.

1. 1. Union of India Through General Manager, Central Railway, Headquarters' Office, CST, Mumbai-400001.

2. 2. Chief Workshops Manager, Central Railway, Headquarters' Office, CST, Mumbai-400001.

3. 3. A.P.O. (Assistant Personnel Officer) CWM's Office, Matunga Workshop, Central Railway, Mumbai-400019.

4. 4. Yogesh S.Shirgaonkar, Technician-II under A.P.O. (Assistant Personnel Officer) at Matunga Workshop, Central Railway, Mumbai-400019.

5. 5. Medballi Jayesh Rajanna, Technician-II under A.P.O. (Assistant Personnel Officer) at Matunga Workshop, Central Railway, Mumbai-400019.

6. 6. Mayuresh V.Raul, Technician-II under A.P.O. (Assistant Personnel Officer) at Matunga Workshop, Central Railway, Mumbai-400019.

7. 7. Kishan Harisingh, Technician-II under A.P.O. (Assistant Personnel Officer) at Matunga Workshop, Central Railway, Mumbai-400019.

8. 8. Akhilesh M.Upadhyay, Technician-II under A.P.O. (Assistant Personnel Officer) at Matunga Workshop, Central Railway, Mumbai-400019.

... Respondents ...

1. 1. Aba Mohan Dhawale Son of Mohan Dinkar Dhawale

2. 2. Vijay Bapurao Gawade Son of Bapurao Sankar Gawade Ampllicants

OA Nos.727/2013, 127/2018, 608/2017, 73/2016, 457/2016, 521/2016,

1. 1. Manjeet S.Bhosale

2. 2. Khan Abdul Hai Son of Abdul Wahid Khan

...Applicant

vs.

1. 1. Union of India Through: The General Manager, Western Railway, Headquarter's Office, Churchgate, Mumbai-400020.

2. 2. Divisional Railway Manager (DRM) DRM's Office, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

3. 3. Roodman Raiger, Working as Safaiwala, under Station Superintendent, Valsad, Western Railway, Valsad, Gujarat.

4. 4. Ashutosh W.Bankar, Working as Platform Porter, under Station Superintendent, Vasai Road Station, Western Railway, Vasai, District- Palghar, Maharashtra.

5. 5. Lalji H.Waghela Working as Platform Porter, under Station Superintendent, B.D.T.S. Station, Western Railway, B.D.T.S.

6. 6. Anirudh Mishra, Working as Platform Porter, under Station Superintendent, Palghar Station, Western Railway, Palghar, District-Palghar, Maharashtra.

7. 7. N.Om Prakash, Working as Platform Porter, under Station Superintendent, Mumbai Central Station, Western Railway, Mumbai Central, Mumbai- 400008.

8. 8. Charudatta R.Kadam, Working as Platform Porter, under Station Superintendent, Santacruz Station, Western Railway, Santacruz, Mumbai- 400054.

OA Nos. 727/2013, 122018, 6082017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

...Applicants

Vs.

- 1. Union of India, through Secretary, Railway Board, Rail Bhawan, New Delhi-110001.

- 2. The General Manager, Headquarters Office, Central Railway, CSTM, Mumbai-400001.

- 3. DRM (Divisional Railway Manager), DRM's Office, Central Railway, Mumbai Division, Headquarters Office, CST, Mumbai-400001.

...Respondents.

- 1. Ankush Kashiram Parab Son of Kashiram Jayaram Parab

- 2. Atul Kesarinath Vedpathak Son of Kesarinath R. Vedpathak

...Applicants

Vs.

- 1. Union of India, through Secretary, Railway Board, Rail Bhawan, New Delhi-110001.

- 2. The General Manager, Western Railway, Headquarters Office, Churchgate, Mumbai-400020.

- 3. The Divisional Railway Manager, Western Railway, Mumbai Division, Mumbai Central, Mumbai-400008.

- 4. Chief Works Manager, Chief Works Manager's Office, Lower Parel Carriage Workshop, Mumbai-400013.

OA Nos.727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

Central Railway, CSTM, Mumbai-400001.

1. 3. DRM (Divisional Railway Manager), DRM's Office, Central Railway, Mumbai Division, Headquarters Office, CST, Mumbai-400001.

2. 4. Department of Personnel and Training (DOP&T), Through its Chairman, having address at : North Block, New Delhi, Pin Code : 110001.

3. 5. All India SC/ST Railway Employees Association, having Office at : 171-B, Basant Lane, Railway Colony, New Delhi-110055.

4. 6. Madhu Kant, Working as Loco Pilot, under the Divisional Railway Manager, Office of the Divisional Railway Manager, Central Railway, CSTM, Mumbai Division, Mumbai-400001.

1. 7. Nawal Kishore Meena, Working as Loco Pilot, under the Divisional Railway Manager, Office of the Divisional Railway Manager, Central Railway, CSTM, Mumbai Division, Mumbai-400001.

1. 1. All India Equality Forum,

2. 2. Amit Saxena S/o. Umesh Chander Saxena

3. 3. Jitendra Premchand Narkhade Son of Premchand Onker Narkhede

4. 4. Deepak Chhawla Son of Shri Ram Bhole Chhawla

...Applicants

**(By Advocates S/Shri R.G.Walia, R.Mehrotra)**

**Vs.**

1. 1. Union of India, through Secretary, Railway Board, Rail Bhawan, New Delhi-110001.

2. 2. The General Manager, Headquarters Office, Central Railway, CSTM, Mumbai-400001.

3. 3. The Divisional Railway Manager, Office of the Divisional Railway Manager, Central Railway.

OA Nos. 727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

**ORDER**

**PER R. VIJAYKUMAR, MEMBER (A)**

This application was filed on 22.10.2013 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

"a) This Hon'ble Tribunal may be pleased to call for the records and proceedings of the case which led to the passing of the impugned order dated 1.9.2010 and after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same;

b) The Respondents be directed to follow and implement the Railway Board's Letters dated 29.1.2009 and 6.4.2005 while granting promotions in the Loco Running Cadre;

c) This Hon'ble Tribunal will be hold and declare that in the promotional post i.e. **Loco Running Cadre** which are non-selection posts

OA Nos.727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

e) Any other and further orders as this Hon'ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case;

f) Cost of this Original Application is provided for".

2. The applicants have challenged the orders of the Railway Board RBE No.126/2010 dt. 1.9.2010 adopted and communicated the decision of the DOP&T issued in O.M. No.36028/17/2001-Estt. (Res) dated 10.8.2010 to state that SC/ST candidates appointed on promotion on their own merit and seniority and not owing 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. The orders were passed by the

OA Nos. 727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

fell within the normal zone of consideration as per seniority, should be granted promotion even in excess of reservation prescribed, but such candidates may be adjusted against reserved vacancies arising in future. In RBE No. 77/2005 dt. 6.5.2005 it was clarified that previous instructions issued by respondents in orders dt. 7.8.2002 and 20.6.2003 shall not be applicable to promotions made by non-selection method. In this regard, they also referred to the decision of the Hon'ble Apex Court in **K. Manorama v. Union of India (2010)**

**10 SCC 323** as below :

"In view of this position, there is no occasion to apply the instruction contained in Railway Board's letter dated 29.7.1993 nor the propositions in R.K. Sabharwal's judgment (supra) to the present case. Even otherwise

OA Nos.727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

the decision of the Hon'ble High Court of Punjab and Haryana At Chandigarh in CWP No.13218 of 2009 (O&M) - **LachhmiNarain Gupta and Others v. Jarnail Singh and Others** decided on 15.7.2011 which quashed the DOP&T instructions dt. 10.8.2010 on which these instructions of Respondents dated 1.9.2010 were based, with the result that the previous instructions of respondents in RBE No.19.2009 and RBE No.77/2005 were reinstated in regard to non-selection promotions. The said judgment made the following observations for quashing the DOP&T O.M. dt. 10.8.2010 :

"38. When the principles laid down in the case of M. Nagaraj (supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009

OA Nos. 727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffer from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagaraj's case (supra) as well as in Suraj Bhan Meena's case (supra).

39. The net result is that no reservation in promotion could be made in pursuance to office memorandum dated 2.7.1997. We are not dealing with many other contentions raised by the learned counsel for the petitioners for the reason that the

OA Nos.727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

the DOP&T orders, on which it was based, had itself been quashed. Applicants also assert support based on the following judgment of the Hon'ble Apex Court in **M.Nagaraj v. Union of India (2006) 8 SCC 212** which recorded its conclusions as below :

"CONCLUSION:

121. The impugned constitutional amendments by which Articles 16 (4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative

OA Nos. 727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

123. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as

OA Nos.727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

Bench in OA No.825/2012 dt. 7.6.2012 which noted the decision of the Hon'ble High Court of Punjab & Haryana cited above and the fact that that judgment had been challenged before the Hon'ble Apex Court and further, directed the respondents: "Having regard to the submissions made by counsel for the parties, it is felt that till the matter is heard in detailed by the appropriate Bench, it would be in the interest of justice that a direction is given to the respondents that any promotion process of Loco Pilot in the Jhansi Division is undertaken should be done by ignoring the RBE No.126/2010 dated 01.09.2010, which has been set aside by the Punjab and Haryana High Court and the Hon'ble Supreme Court. Hence it is directed

ANos.727/2013, 122/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

dt. 10.8.2010 governed only the period from 2.7.1997 to 11.7.2002 and that adjusting reserved category candidates promoted on their own merits and seniority against unreserved post had been in operation from 11.7.2002, but not from 1997 to 2002 for which the DOP&T OM was to be in place. They state that the orders of the Hon'ble High Court of Punjab and Haryana were oriented towards the larger issue of reservation in promotion and not about the accommodation of reserved candidates against unreserved posts in the non-selection method for which the decision of the Hon'ble High Court of Madras in **Kalugasalamoorthy v. Union of India** in W.P. No.15926/2007 was the relevant point of

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instructions dt. 1.9.2010 were issued based on the Judgment of the Hon'ble High Court of Madras in **S.Kalugasalamoorthy v. Union of India and Ors.** (supra) and the matter had become final. They also referred to the post-based roster system decided by the Hon'ble Apex Court in **R.K.Sabharwal v. State of Punjab (1995) 2 SCC 745.** Hence, they argued that that judgment allowed SC/ST candidates selected on their own merit to be accommodated against general vacancy and that they would not be counted against percentage of reservation. They stated that the judgment of the Hon'ble High Court of Punjab and Haryana had been challenged before the Hon'ble Apex Court.

7. Private respondents also filed their

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**R.K. Sabharwal** (supra) and was therefore, not the law on the subject.

8. An additional plea has been raised by applicants in OA No. 629/2012 on setting aside promotions w.e.f. 19.10.2006 based on the orders of the Hon'ble Apex Court in M.Nagaraj (supra). Their argument is that the Hon'ble Apex Court had declared that reservations could not be made without first carrying out the requisite exercise and since this exercise has not been carried out, any promotions made on or after 19.10.2006 are not in accordance with the provisions of the Constitution. The respondents contend that the applicants have not cited any specific orders that would be upset by such a decision

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to them DOP&T should also be impleaded, which has not been done.

9. We have heard the learned counsel for the applicant and the learned counsel for the respondents and have carefully considered the facts and circumstances, law points and rival contentions in the case.

10. Official respondents no.1 to 3 in OA No.727/2013 along with others represented by Shri V.D.Vadhavkar, learned counsel for respondents have filed preliminary objections on three aspects viz. (i) Relief has been prayed from the year 2006 and therefore, OA is time barred; (ii) Non-joinder of parties : Secretary DOP&T is not impleaded. Of five reserved community candidates, only two were

OA Nos. 727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

11. On the pleas raised by applicant in OA No. 629/2012 for declaring promotions from 19.10.2006 as illegal consequent upon the Judgment of the Hon'ble Apex Court in **M. Nagaraj** (supra), there appears to be nothing wrong in the argument given that the judgment was in respect of the manner in which constitutional provisions had been interpreted and implemented by respondents. However, in the absence of any specific reliefs or parties that have been impleaded in this matter, no relief is possible to be granted by this Tribunal. At this stage, it is also observed that in another case in OA No. 2131/2012, we had occasion to refer the decision of the Hon'ble High Court of Delhi

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period for reservations in promotions beyond 15.11.1997. In those circumstances, with the stamp of the Hon'ble Apex Court on this judgment of the Hon'ble High Court of Delhi, reservations after 1997 are themselves not in accordance with the provisions of the Constitution.

12. On the preliminary objections raised by learned counsel for official respondents, it is apparent that relief has been sought in this case because the respondents have not abided by the law as settled by the Hon'ble Apex Court in M.Nagaraj (supra). In such a case when illegal actions are taken by respondents, challenge can be raised at any point of time and when challenge is successfully made that will render the

OA Nos/727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

Punjab and Haryana. The instructions issued by the official respondents are incorporated in their own reference and is this OM of the DOP&T. This order of respondents has come under challenge in these proceedings and therefore, there is no necessity for the applicants to implead the Secretary, DOP&T whose OM has already been rendered non est. Therefore, this objection also has no substance. It is also evident that the applicants have taken effort to implead some of the beneficiaries of the impugned order and have also taken care in their amendment to include the All India SC and ST Railway Employees Association who are interveners in this application. Therefore, it is not

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law. For the same reason, the question of impleading any unreserved category employees also does not arise since the applicants have evidently no objection to their seniors in the open category getting promoted nor for that matter, do they have any objection to reserved category employees who are senior to them getting promoted subject to the principle that the rule of reservation is not followed in promotion.

13. At the time of the final hearing, the orders of the Hon'ble Apex Court on the batch of SLPs filed against the orders in various Writ Petitions including in **LachhmiNarain Gupta and Others v. Jarnail Singh and Others** decided by the Hon'ble High Court of Punjab &

Harvana were available with the lead case

OA Nos. 727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016, 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

before enforcing reservation in promotions, had not been carried out by the respondents, which was the Income-tax Department in that case. In those circumstances, that Hon'ble Court had held that the instructions of the DOP&T dt. 10.8.2010 were necessarily quashed because they were in direct conflict with the view taken by the Constitution Bench in *M.Nagaraj (supra)* and *Suraj Bhan Meena v. State of Rajasthan*, (2011) 1 SCC 467. That Court had further directed that seniority and promotions of the Income-tax Inspectors shall be made without any element of reservation in promotion.

14. The Hon'ble Apex Court in its judgment which considered the matter with the

OA Nos.727/2013, 12/2018, 608/2017, 73/2016, 457/2016, 521/2016, 606/2016, 193/2018, 488/2016, 615/2016, 672/2016, 770/2016 578/2015, 721/2015, 14/2014, 165/2013, 689/2013, 629/2012

Hon'ble Apex Court considered various aspects of the previous rulings in **M.Nagaraj** (supra) and upheld the validity of the pre-requisites laid down in **M.Nagaraj** (supra), except in respect of the requirement for collection of quantifiable data to determine backwardness.

Since this was held to be contrary to the decision of the nine-Judge Bench in **Indra Sawhney & Others v. Union of India AIR 1993 SC 477**, this particular pre-requisite was held to be invalid and it was deleted retaining the rest of the pre-requisites in addition to the aspects of creamy layer. On the issue of a test for determining adequacy of representation in promotional posts, the Hon'ble Apex Court observed that the Article

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portion held as invalid in the present judgment of the Hon'ble Apex Court, have been observed and followed in any manner by the respondents. Therefore, with the reliance on **M. Nagaraj** (supra) by the Hon'ble High Court of Punjab and Haryana having been upheld, the consequent quashing of DOP&T O.M. dt. 10.8.2010 becomes final. As already noted by the coordinate Benches of this Tribunal in Jaipur and Allahabad, with this order of the DOP&T having been quashed, the instructions issued by the respondents in RBE No. 126/2010 dt. 1.9.2010 cannot also survive. When reservations in promotions are themselves not available, the consequent issues will also not be relevant for any decision. The CPS

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all the promotions made by respondents in the present batch of cases by reference of these orders shall also stand rescinded. The M.A.s filed in the listed OAs also, accordingly, stand disposed. There shall be no order as to costs.

(RAVINDER KAUR) MEMBER (J)

(R. VIJAYKUMAR) MEMBER (A)

B.

3/11/16