UNION OF INDIA & ORS. versus GOPAL MEENA & ORS. on 10 August 2022

1. The present three appeals have been preferred by the Union ofIndia; two appeals viz. Civil Appeal No. 3314 of 2010 and Civil AppealDNo. 5933 of 2010 arise out of an order passed by the CentralAdministrative Tribunal[1], affirmed by the High Court of Delhi and HighCourt of Punjab & Haryana, directing separate zone of considerationfor promotion of Scheduled Caste/Scheduled Tribe candidates to thepost of Superintendent in the Customs and Central ExciseCommissionerate from the post of Inspector, whereas the Civil AppealENo. 9436 of 2010 is directed against a similar direction by the HighCourt of Delhi but in respect of Indo-Tibetan Border Police for promotionto the post of Assistant Commandant from the post of Subedar MajorStenographer.

2. For the sake of brevity, the facts are quoted from the CivilFAppeal No. 3314 of 2010. The grievance of the applicants[2], belonging tothe Scheduled Tribes, was that there is backlog of vacancies for the postof Superintendent which have not been filled up for the reason that thecandidates are not available within the zone of consideration. Therefore,to fill up the 29 posts of Superintendent, it was prayed that a separateGzone of consideration be created for the Scheduled Tribe candidates sothat the vacancies in the cadre of Superintendent meant for them couldbe filled up.

1 For short, the ‘Tribunal’

2 For short, the ‘candidates’

3. The Tribunal found that the Office Memorandum dated30.9.1983 which restricted the zone of consideration to five times of theposts to be illegal. Reliance was placed upon the orders passed by thisCourt in U.P. Rajya Vidyut Parishad SC/ST Karamchari KalyanSangh v. U.P. State Electricity Board & Ors.[3]; C.D. Bhatia & Ors.v. Union of India & Ors.[4]; and, Basudeo Anil & Ors. v. Union ofIndia & Ors.[5]wherein the Office Memorandum dated 30.9.1983restricting the zone of consideration was found to be illegal.

4. The attention of the Court was drawn to the earlier OfficeMemorandum dated 24.12.1980 which contemplated that the zone ofconsideration can be extended to five times the number of vacanciesand the Scheduled Tribe candidates (and not any other) coming withinthe extended field of choice, should also be considered against thevacancies reserved for them. The relevant extract reads thus:

“(a) The Department Promotion Committee (DPC) shall for ‘thepurpose of determining the number of officers who should beconsidered from out of those eligible officers in the feeder grade(s)restrict the field of choice as under, with reference to the number of clear regular vacancies proposed to be filled in the year.

No. of vacanciesNo. of officers to be considered(1)(2)15283104 or morethree times the number of vacancies (b) Where, however, the number of eligible officer in the feedergrade(s) is less than the number in Col. (2) above, all the officersso eligible should be considered.

(c) Where adequate number of SC/ST candidates are not availablewithin the normal field of choice as above, the field of choice maybe extended to 5 times the number of vacancies and the SC/STcandidates (and not any other) coming within the extended fieldof choice, should also be considered against the vacancies reservedfor them.

3 Civil Appeal No. 4026 of 1988 decided on 23.11.1994

4 Petition for Special Leave to Appeal (Civil) No. 14566 of 1995 decided on 20.10.1995

5 Civil Appeal No. 1194 of 1992 decided on 7.9.2000

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AOfficers belonging to SC/ST selected for promotion againstvacancies reserved for them from out of the extended field ofchoice under sub para (e) above, would however be placed enbloc below all the other officers selected from within the normalfield of choice.”

B5. It is thereafter, an Office Memorandum was issued on 30.4.1983for regulating ad-hoc promotions for consideration of cases for ScheduledCaste and Scheduled Tribe candidates with reference to an earlier OfficeMemorandum dated 6.4.1979. The relevant clauses read thus:

“3. Since ad hoc promotions are made on the basis of seniority-Ccum-fitness, all the Scheduled Castes/Scheduled Tribes candidatescovered in the relevant seniority list within the total number ofsuch vacancies against which ad hoc promotions are to be made,should be considered in the order of their general seniority as perthe gradation list, on the principle of seniority-cum-fitness and ifthey are not adjudged unfit, they should all be promoted on adhocDbasis.

4. If, however, the number of SC/ST candidates found fit withinthe range of actual vacancies is less than the number of vacanciesidentified as falling to their share if the vacancies were filled on aregular basis vide (2) above then additional SC/ST candidates toEthe extent requested should be located by going down the senioritylist, provided they are eligible and found fit for such ad hocappointment. This procedure should be adopted on every occasionon which ad hoc appointment is resorted to.

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7. For regular promotions when eventually made the proceduresand instructions laid down in the Brochure will continue to apply.”

6. Another Office Memorandum was issued on 30.9.1983pertaining to ad-hoc promotion by the Department of Personnel andAdministrative Reforms wherein the zone of consideration for ScheduledGCaste and Scheduled Tribe candidates was restricted up to five times.The relevant clause reads thus:

“2. It has not been decided that the Scheduled Castes/ScheduledTribes candidates who are within the number of actual vacanciesshould be considered in accordance with their general seniority H

on the principle of seniority cum fitness and if they are not adjudgedunfit, they should all be promoted on ad hoc basis. If, however,the number of Scheduled Castes/Scheduled Tribes candidates foundfit within the range of actual vacancies is less than the number ofvacancies identified as falling to their share, than additionalScheduled Castes/Scheduled Tribes candidates to the extentrequired should be located by going down the seniority list butwithin 5 times the number of vacancies being filled on a particularoccasion, subject, of course, to their eligibility and fitness.”

7. The order in Basudeo Anil dealt with Office Memorandumsdated 30.4.1983 and 30.9.1983 wherein the appeal was allowed and itwas held that the condition of restricting the number of Scheduled Casteand Scheduled Tribe candidates to five times of the total number of suchvacancies as provided in Office Memorandum dated 30.9.1983 is notlegal. It was observed as under:

“In the aforesaid premises, the question for consideration iswhether by the subsequent Office Memorandum dated 30[th]September, 1983 can it be said that the rights of the reservedcategory candidates to get their due has been taken away. It isundisputed that in the service in question there has been a specifiedpercentage of reservation, and in fact that was reflected also inthe Office Memorandum of April, 1983, which provided for theprocedure to be adopted for appointment of the Vice-Principal onad-hoc basis. We see no reason for issuance of the secondMemorandum of the 30[th] September, 1983, which in fact takenaway the rights conferred upon the reserved category candidatesunder the Office Memorandum of the 30[th] April, 1983, and whichis also in accordance with the constitutional mandate. In that viewof the matter, we quash the subsequent Office memorandum dated30th September, 1983 issued by the Ministry of Home Affairs inthe Department of Personnel and allow this appeal.”

8. The Office Memorandum dated 30.9.1983 was thus withdrawnon 15.3.2002 in view of the judgment of this Court in Basudeo Anil andit was held that ad-hoc promotions would be regulated as per instructionsdated 30.4.1983. The relevant clause of Office Memorandum dated15.3.2002 reads thus:

“2. The Supreme Court in its judgement dated 7.9.2000 in thecase of Union of India and others Vs. Shri. Basudeo Anil and AB

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Aothers (Civil Appeal No.1194/1992) has quashed the Departmentof Personnel and Administrative Reforms O.M. No.36011/14/83-Estt.(SCT) dated 30.9.1983. It has, therefore, been decided towithdraw the Department of Personnel and AdministrativeReforms’ O,M. No.36011/14/83- Estt.(SCT) dated 30.9.1983 withimmediate effect. Thus claims of the Scheduled Castes/ScheduledBTribe candidates in the matter of ad hoc promotions wouldhenceforth be regulated as per instructions contained in Departmentof Personnel and Administrative Reforms’ O.M.No.36011/14/83-Estt.(SCT) dated 30.4.1983.”

9. An Office Memorandum was issued on 22.4.1992 wherein zoneCof consideration of officers for promotion by selection was prescribed incontinuation of Office Memorandum dated 24.12.1980. The relevantextract reads thus:

“In this Department’s O.M. No. 2201 1/3/76-Estt. (D) dated the24th December, 1980 the zone of consideration of officers forDpromotion by selection was prescribed as under:- E

It was also laid down that where adequate number of SC/STcandidates are not available within the normal field of choice asindicated above, the field of choice may be extended to five timesthe number of vacancies and the SC/ST (and not any other) comingwithin me extended field of choice be considered against theFvacancies reserved for them. This provision relating to an extendedzone of five times the number of vacancies in respect of SC/SThas been retained in O.M. No, 22011/5/86-Estt. (D) dated 10.3.89and 10.4.89 and also in O.M No 22011/1/90-Estt. (D) dated12.10.90 in which the normal zone of consideration for generalGcategory was reduced for vacancies numbering 5 and above, G

2. It is hereby clarified that the intention is to have an extendedzone of five times the number of vacancies in all cases whereadequate number of SC/ST candidates are not available in thenormal zone of a smaller size. For a single vacancy, since thenormal zone itself is 5 i.e. five times the number of vacancies H

UNION OF INDIA & ORS.v. GOPAL MEENA & ORS.[HEMANT GUPTA, J.]

there is no intention to extend the zone. The normal zone and theextended zone for vacancies will accordingly be as follows :

10. Subsequently, another Office Memorandum was issued on6.1.2006. It was communicated after review of the size of zone ofconsideration as under:

“The size of zone of consideration for, promotion by ‘selection’ asprescribed vide DoPT O.M. No. 22011/1/90- Estt.D dated 12[th]October 1990 read with O.M. No. 22011 / 1/90-Estt- (D) dated22nd April 1992 is as under:

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2. ...............Accordingly, a need has arisen for review of the sizeof zone of consideration. Having a size of zone of considerationlarger than is necessary in the revised context would lead tounnecessary paper work, which may also lead to delay in conveningDPCs. However, the zone of consideration has still to be wideenough to cater to the needs of the Department/cadre authoritiesfor giving an extended panel against empanelled officers who areon deputation or are expected to proceed shortly; who have retiredor will be retiring in the course of the vacancy year or who haverefused promotion and are under debarment. The size should also A

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Abe sufficient to take care of officers in the feeder grade whosecases are to be placed in ‘sealed cover’ and also of those who donot meet the prescribed benchmark. Thus, there is a need foroptimizing the size of zone of consideration.

3. The matter has been considered carefully. Keeping in view theBconsiderations in para-2 above, it has been decided to modify theexisting provisions relating to size of zone of consideration asunder:”

11. The argument of Ms. Bhati is that the order in U.P. RajyaVidyut Parishad SC/ST Karamchari Kalyan Sangh is a consent order,Cwhich cannot be treated as precedent, which is evident from the followingoperative part of the order:

“In view of the averments made in the affidavit quoted above, it isnot necessary for us to go into the various questions canvassedbefore us. The contentions of the appellants before us have beenDsubstantially met with by the Board. In view of the stand taken bythe Board in its aforesaid affidavit, the judgement of the HighCourt was become redundant and it shall not be operative. Theappeal is disposed of with no order as to costs.”

12. In C.D. Bhatia, this Court had passed an order based upon Ethe order in U.P. Rajya Vidyut Parishad SC/ST Karamchari KalyanSangh giving liberty to the petitioner to approach the Government inorder to seek enforcement of the law laid down. The operative part ofthe said order is as under:

“We are, however, of the view that the law laid down by thisFCourt in U.P. Rajya Vidyut Parishad’s Case is binding on all theauthorities including the Union of India. The petitioner may, if soadvised, approach the Government seeking enforcement of thelaw laid by this Court. Special leave petitions are disposed of.”

13. It is contended that the order in C.D. Bhatia is an order in aSpecial Leave Petition affirming an order passed by the Tribunal, thusGcannot be treated to be a precedent. Reliance is placed upon an orderpassed by this Court in Kunhayammed v. State of Kerala[6], and KhodayDistilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare KarkhaneLtd.[7]. It was further argued that both orders, as referred above, were 6 (2000) 6 SCC 359H7 (2019) 4 SCC 376

referred to in Basudeo Anil, but the fact that order in U.P. Rajya VidyutParishad SC/ST Karamchari Kalyan Sangh was based upon aconcession and the order in C.D. Bhatia was an order in Special LeavePetition was not brought to the notice of the Court. Moreover, the OfficeMemorandums dated 24.12.1980, and dated 22.4.1992 dealing withsubstantive promotion by the Departmental Promotion Committee werenot brought to the notice of the Court.

14. It has been further contended that there cannot be a separatezone of consideration for each category of the officials. The zone ofconsideration is in respect of the candidates falling in the seniority list.The candidates belonging to Scheduled Caste and Scheduled Tribe weregiven relaxation to extend zone of consideration up to five times of thevacancies. It is argued that the effect of the order passed by the HighCourt would be that all eligible candidates, at whatever position in theseniority list, would fall within the zone of consideration, though theymay be lowest in the list. Such creation of zone of consideration is not inconsonance with the efficiency in the service. Still further, enlarging thezone of consideration for Scheduled Caste and Scheduled Tribe to fivetimes cannot be said to be arbitrary, irrational or illegal, which could bestruck down in exercise of power of judicial review.

15. The issue in Basudeo Anil was restricted to the OfficeMemorandum dated 30.9.1983 which was a clarification to the OfficeMemorandum dated 30.4.1983 in respect of ad-hoc promotions. Theregular or substantive promotions have to be carried by OfficeMemorandum dated 24.12.1980 or other Office Memorandums issuedfrom time to time.

16. The Office Memorandum dated 30.4.1983 was not to amendthe Office Memorandum dated 24.12.1980. This OM was in referenceto Office Memorandum dated 16.4.1979 asking the Departments to resortto ad-hoc promotions, when it becomes inescapable in public interest.For regular promotions, the procedural instructions laid down in thebrochure was to apply (Clause 7 of the OM dated 30.4.1983). Therefore,the Office Memorandum dated 30.4.1983 was only dealing with ad-hocpromotions and not with substantive promotions. Hence, the officeMemorandum dated 24.12.1980 would continue to apply in respect ofsubstantive promotions.

17. On the other hand, Dr. M.P. Raju, learned counsel for thecandidates quoted the order passed by the High Court and contended AB

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Athat there are about 29 posts of Superintendent in the Custom and CentralExcise Commissionerate which are required to be filled up by ScheduledTribe candidates. The said posts have not been filled up only for thereason that reasonable number of Scheduled Tribe candidates do notcome within the zone of consideration. Therefore, the order of the HighCourt is fair and reasonable so as to give effective meaning to the policyBof reservation for the Scheduled Caste and Scheduled Tribe. Reliance isbased upon the three orders, as mentioned above. In addition thereto,reliance has been placed upon a judgment of this Court reported as R.K.Sabharwal & Ors. v. State of Punjab & Ors.[8]to contend that filling ofposts or vacancies through reservation has to be post-based and that theCroster points meant for Scheduled Tribes should only be filled by theScheduled Tribes alone. Thus, applying the principle of reservation, generalcategory and reserved category have to be treated separately and withoutclubbing. It was thus argued that there has to be a separate zone foreach category i.e., for general, Scheduled Caste and Scheduled Tribe,rather than the common seniority list which is prevalent for determiningDzone of consideration for promotion. Accordingly, a separate zone ofconsideration for the Scheduled Tribe candidates is in fact the only wayto give effect to the reservation policy.

18. It is also contended that after the year 2002, if the backlogvacancies are not filled up, the Union can de-reserve those vacancies,Ethus, jeopardizing the interests of the reserved category candidates. It isargued that a joint zone of consideration is thus a gross violation of Article16 (4A) of the Constitution. The basic reason for non-filing of backlogvacancies in promotion quota is the application of a common zone ofconsideration which is prepared as field of choice for promotion. It isFalso averred that present matter is a case of a special drive to fill thebacklog vacancies reserved for Scheduled Caste and Scheduled Tribecandidates in promotion quota, therefore, the inclusion of general categorycandidates while preparing zone of consideration for promotion seemsto be illogical and against the very purpose of reservation. Therefore, separate non-joint zone of consideration should be prepared for eachGScheduled Caste and Scheduled Tribe category without including generalcategory candidates. Reliance is placed upon Chebrolu Leela PrasadRao & Ors. v. State of Andhra Pradesh & Ors.[9]wherein theclassification limiting the zone of consideration was found to be illegal, 8 (1995) 2 SCC 745H9 (2021) 11 SCC 401

unreasonable and arbitrary. Reference was also made to Ajit Singh &AOrs. (II) v. State of Punjab & Ors.[10], S.B. Mathur & Ors. v. ChiefJustice of Delhi High Court & Ors.[11]and Duddilla Srinivasa Sharma& Ors. v. V. Chrysolite[12]to contend that limiting the zone ofconsideration and shortlisting the candidates has to be reasonable, non-arbitrary, rational and having a nexus with the objective sought to beBachieved. Dr. Raju has also placed reliance upon P. Sheshadri v. Unionof India & Anr.[13]to contend that joint select lists for Scheduled Caste/Scheduled Tribe and general category would defeat the purpose ofreservation by pushing the eligible Scheduled Tribe candidate out of thezone of consideration.

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19. We have heard learned counsel for the parties and find thatthe entire case of the candidates has been projected in untenable manner.

20. In P. Sheshadri, the Office Memorandum dated 24.12.1980,referred to by the learned counsel for the appellant, along with the otherOffice Memorandums were the subject matter of consideration. ThisCourt held as under:

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“11. …..Further clause (ii) of para 2.3.2. of OM dated 10-3- 1989contemplates that selection against vacancies reserved forScheduled Castes and Scheduled Tribes will be made only fromthose Scheduled Caste/Scheduled Tribe officers who are withinthe normal zone of consideration prescribed by the Departmentof Personnel and AR vide OM No. 22011 dated 24-12-1980. Itfurther contemplates that where (sic adequate) number ofScheduled Caste/Scheduled Tribe candidates are not availablewithin the normal field of choice, it may be extended to five timesthe number of vacancies and Scheduled Caste/Scheduled Tribecandidates (and not any other) coming within the extended fieldof choice, should also be considered against the vacancies reservedfor them. If candidates from Scheduled Castes and ScheduledTribes obtained on the basis of merit with due regard to seniority,on the same basis as others, are less than the number of vacanciesreserved for them, the difference should be made up by selectingcandidates of these communities, who are in the zone of EF

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Aconsideration, irrespective of merit and benchmark but who areconsidered for promotion and officers belonging to ScheduledCastes and Scheduled Tribes selected for promotion againstvacancies reserved for them from within the extended field ofchoice would however be placed en bloc below all the other officersselected from within the normal field of choice….”B21. We find that the Tribunal and the High Courts have missedthe real controversy. The Government of India had issued an OfficeMemorandum dated 26.8.2004 to fill backlog vacancies reserved forScheduled Caste and Scheduled Tribe in promotion quota as a specialdrive. Such Office Memorandum was not relating to the Customs andCCentral Excise Commissionerate or the Indo Tibetan Border Police butto all the employees of the Central Government. The candidates in theOffice of Customs and Central Excise Commissionerate submittedrepresentations for consideration for promotion to the grade ofSuperintendents. Such representations were rejected on 4.2.2005. The Dreason for rejection of the representation was that the officers had joinedCentral Excise Delhi Zone as Inspectors on inter-Commissionerate ontransfer basis in 2003. Therefore, they are too juniors to be includedeven in the extended zone of consideration.

22. Such communication was challenged by the candidates by anapplication under Section 19 of the Administrative Tribunal Act, 1985.

EThe reliance was placed upon the three orders in U.P. Rajya VidyutParishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and,Basudeo Anil. Considering the said orders, the Tribunal returned thefollowing findings:

“27. However, we find that DoPT is not made as a party beforeFus. Be that as it may, the fact remains that applicants who had notbeen in the zone of consideration, yet in the wake of unfilled quotafor ST de-reservation or thereafter backlog vacancies is not acorrect procedure followed by respondents.

28. We have also in mind the law laid down by the Apex CourtGthat total reservation should not exceed 50%. Accordingly, whenthe requisite percentage of quota of each reserved category issatisfied then post-based roster shall come into effect. The abovemethodology shall also hold good while filling up the quota for ST.29. In the result, for the foregoing reasons, this OA is partly allowed.Impugned order is set aside. Respondents are directed to take upH

the matter of extension of same treatment which has been metedout to SC/ST candidates in ad hoc promotions vide DoPT OMdated 15.3.2002 to be extended in regular promotions as well andon forwarding a copy of this order to the DoPT after considerationof our observations and decisions of the Apex Court and on adecision taken by the DoPT respondents shall consider applicantsfor promotion to the posts of Superintendents in their reservedquota and till then, if not already done, shall neither de-reserve thebacklog vacancies meant for ST categories nor fill up these postsin any manner whatsoever. No costs.”

23. The order impugned in the Original Application was the orderdated 4.2.2005 rejecting the representations of some of the candidatesfor promotion that the candidates have joined Central Excise (Delhi Zone)as Inspector on Inter Commissionerate transfer basis in the year 2003.The Tribunal has not examined the question of seniority on account ofInter Commissionerate transfer. The order dated 4.2.2005 was set asideand a direction was issued to grant same treatment to SC/ST candidatesin ad hoc promotions as well as in regular promotions.

24. After the said decision of the Tribunal, DoPT issued revisedguidelines for optimizing the size of zone of consideration on 6.1.2006independent of the order of the Tribunal dated 19.10.2005, which hasbeen adversely commented upon by the Tribunal.

25. We find that there are three situation of promotion which arerequired to be examined. One is backlog vacancies for which an OfficeMemorandum dated 26.8.2004 was issued. Second is ad hoc promotionsfor which an Office Memorandum dated 30.4.1983 was issued followedby 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of30.4.1983, as reproduced above, specifically states that, for regularpromotions, procedures and instructions laid down in the Brochure willcontinue to apply. For regular promotions, Office Memorandum has beenissued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone ofconsideration was prescribed keeping in view the number of vacancieswhich are to be filled up.

26. In the Original Application later filed, the candidates challengedthe Office Memorandum dated 6.1.2006 which is in relation to regularpromotions. There is no parity between backlog vacancies covered inOffice Memorandum dated 26.8.2004 and the regular promotion covered AB

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Ain Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore,the Tribunal as well as the High Court have completely missed the issueinvolved in the subsequent applications filed by the candidates. Thegrievance of the candidates, first in Original Application No. 688 of 2005was only filling up of backlog vacancies and not regular or ad hocpromotions. The Tribunal and the High Court had missed the distinctionBbetween ad hoc promotions and the regular promotions to be made throughDepartmental Promotion Committee (DPC).

27. The validity of Office Memorandum dated 24.12.1980 hasbeen upheld by this Court in P. Sheshadri. Since the validity of theCOffice Memorandum has been upheld, the validity cannot be put to testagain on the basis of Office Memorandum for filling up the backlogvacancies or ad hoc promotion.

28. The distinction between a special drive for filling up backlogvacancies and regular promotion to candidates both from the reservedDand the unreserved categories, is too obvious. While filling up vacanciesby way of promotion on regular basis, a DPC is constituted and theprofile of the candidates coming within the zone of consideration isprepared. But in a special drive for filling up the backlog vacancies meantfor reserved category candidates, such an exercise become redundant.This is because all candidates who will be considered for promotion, in aEspecial drive, will invariably belong to the same reserved category, asotherwise it will cease to be a special drive.

29. Similarly, the exercise undertaken for filling up vacancies onad hoc basis, stands on a different footing from the exercise undertakenfor the grant of regular promotions. The High Court as well as the TribunalFfell into error on two aspects namely: -

(i) They did not address the issue whether there was a specialrecruitment drive for filling up of backlog vacancies andwhether there was a failure to consider the case of therespondents; and G

(ii) They applied the yardstick meant for ad hoc promotions tothe case of regular promotions, though the case of thecandidates was for unfilled backlog vacancies. Thisfundamental error of focus has resulted in the Tribunal andthe High Court answering a question that did not arise.H

Therefore, we find the orders of the High Courts are clearlyerroneous and not sustainable in law. Consequently, the orders passedfor regular promotion by extending the zone of consideration do not arise.The same are set aside and the appeals are allowed.

Divya Pandey and Amarendra Kumar(Assisted by : Pragya Samal, LCRA)

Appeals allowed.

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