UOI & Anr. v. Bhagwan Dass & Ors.

1. Whether reporters of Local papers be allowed to see the judgment? No

2. To be referred to reporter or not? No

3. Whether the judgment should be reported in the Digest? No A.K.SIKRI, J. (ORAL) *

1. The respondent herein was promoted as Section Officer (SO) with the UOI in the office of Directorate of Accounts, Cabinet Secretariat on 01.03.1994. He belongs to Scheduled 2011:DHC:3951-DB Caste (SC) Category. Next promotion was to the post of Sr. Section Officer (Sr.SO) and as per the extant rules, a person with three years regular service as SO becomes eligible for consideration to the post of Sr. SO. The rules further provide that there should be a ratio of 80:20 for Sr. SOs and SOs of the Cabined strength of Sr. SOs. It is not in dispute that at the relevant time, there were 37 posts in the combined cadre of Sr. SOs/SOs. Thus, 80% of these posts came to the share of Sr. SOs.

2. The DPC for promotion to the post of Sr. SOs met on 7.03.1997. However, on that day the respondent had not become eligible. The DPC was again held in September 1998. This time, case of the respondent was considered for the said post. But, he was not promoted as according to the petitioner, no posts in the SC category was available. The respondent challenged the aforesaid non-promotion by filing an Application before the Tribunal under Section 19 of the Administrative Tribunal Act. It was primarily on two counts. One ground taken by the respondent was that there were five posts meant for SC candidates and since only 4 persons belonging to this category were working as Sr. SOs, the stand of the petitioner/ Union of India that there was no post for SC category was incorrect. On this basis, he pleaded that being a SC candidate and one post in that category still available, he should have been promoted against that post. Since the Tribunal has accepted this plea of the respondent and decided the OA only on this ground, we would like to deal with this ground in the first instance and would refer to the other ground taken by the respondent later at the appropriate stage.

3. Coming to the vacancy position, it is not in dispute that there were 37 posts in the combined cadre of Sr.SOs/SOs. It is also not in dispute that 80% of these posts were meant for Sr. SOs. Further, it is also not in dispute that 15% of the posts are to be reserved for SC category candidates and 7.5% for ST category candidates. The entire dispute relates to the manner in which that 80% posts meant for Sr. SOs and out of these 80%, 15% meant for SC category are to be calculated. The exercise done by the Tribunal in arriving at a conclusion that 5 posts in the aforesaid cadre are to be allocated to SC category can be traced in para 5 of the impugned order which reads as under: “The DPC which met on 7.3.1997 considered vacancies prior to 1.3.1997 on which date applicant was not eligible for promotion, but in the subsequent DPC held in September 1998, applicant‟s claim for promotion should have been considered as an SC candidate on postbased roster basis, such that all the 5 vacancies available for SC candidates were filled up by them”.

4. It is clear from the above that, while calculating 80% of 37, the Tribunal has arrived at a figure of 29.[6] which taken upwardly by rounded off to 30. Thereafter 15% of this (which is meant for SC category) is calculated which comes to 4.[5] and it is again rounded off to the next higher level i.e. 5.

5. Mr. Maninder Singh, learned Sr. Counsel appearing for the Union of India/ petitioner has challenged the aforesaid manner of calculation. His submission is that no such rounding off of 29.[6] into 30 and thereafter rounding off of 4.[5] into 5 was permissible as per the rules. Alternatively, he submitted that when 80% of 37 comes to 29.6, 15% of this 29.[6] should have been taken into consideration instead of 30. If that is done, then 25% of 29.[6] comes to 4.44. According to him, after applying the relevant instructions, one will have to omit the fraction and in this manner there would be four posts meant for SC category this purpose, our attention is drawn to OM No.36012/2/96-Estt.(Res.), dated the 2nd July, 1997 which was issued to implement the judgment of the Supreme Court in R.K. Sabharwal v State of Punjab (AIR 1995 (2) SCC 745) holding that for reservation of job for the backward classes, the Government should apply post-based-roster instead vacancybased-roster. Main reason was to ensure that the total reservations do not exceed 50%. Paragraph 8 of the aforesaid instructions/circular in Explanatory Notes reads as under: “8.It would noted that at the end of the roster, “squeezing” has been done for the reserved categories to reach the number of posts to be reserved for them without violating the 50% limit laid down by the Courts. While drawing up rosters, the cadre controlling authorities should similarly “squeeze” the last point of the roaster. Such squeezing may not, however, be done where it would violate the rule of 50%.”

6. The basis of above submission was that instead of rounding off to the next level, what is permitted is “squeezing” to ensure that the overall percentage of reservation is not exceeded. His submission was that if 5 posts are to be treated as meant for SC candidates against total post of 37, then the percentage would exceed 15% meant for SC category which is against the spirit of R.K. Sabharwal (supra). He also drew out attention to the model roster of reservation with reference to posts prepared keeping in view the mandate of R.K. Sabharwal (supra). As per this roster posts at S.No.7, 15, 20, 27 and 35 are meant for SC category. He thus submitted that fifth post under SC category comes at Sr. No.35 whereas total posts in this category are only 29.3/30 and on this reckoning also, there cannot be 5 posts for SC category as against 29.[6] posts available for Sr. SOs. He also referred to clarification which were issued by the C&AG vide Circular No. 9/NGE/98 No.108/NGE (App.)/3-97 dated 23.01.1998 regarding postbased-reservation roster wherein it was, inter alia, clarified that if there is a fraction of less than 0.[5] then while preparing the roster, the squeezing of the last reserved point is to be done. Thus, his submission was that the Tribunal committed an error in arriving at the figure of 5 for the purpose of allocation of quota to the SC category.

7. As against the above, submissions of learned counsel for the respondent was that the rounding off done by CAT in the aforesaid manner was permissible having regard to the law laid down by the Supreme Court in the case of State of Uttar Pradesh and another v Pawan Kumar Tiwari and others[(2005) 2 SCC 10]. Learned counsel specifically referred to the following passage from the said judgment:

8. We are of the opinion that even if rounding off is permissible in the manner stated by the Supreme Court and as clarified by C&AG, the calculations as per simple arithmetic would clearly demonstrate that the posts which could be earmarked for SC category would be 4 and not 5. The mistake which the Tribunal has committed is to first rounding off 29.[6] into 30 and on that basis arriving at a figure of 4.[5] while calculating 15% thereof for SC category and then rounding off of the same to 5. This rounding off on both occasions in an upward manner has led to an error and would defy the simple arithmetic calculation. The Tribunal should have taken 80% of 37 which was coming to 29.6% and should have calculated 15% thereof. In this manner, exact figure would be 4.44. Since it is less than 4.5, the fraction is to be ignored and the exact figure which has to be arrived at in this manner would be 4 and not 5. If the rounding off is done at both these places and that too in a upward manner and not by ignoring fraction, then the percentage meant for SC category is inflated from 15% to 16.66%, though such a result is clearly impermissible. We are, therefore, of the opinion that the post meant for SC category would be 4 and not 5. Otherwise, as rightly pointed out by learned counsel for the petitioner, if 5 posts are taken into consideration then it exceeds the quota of 15% meant for SC category candidates.

9. We may point out here that this very case was forwarded by the petitioner to Department of Personnel & Training and they had also given the opinion that the exercise undertaken by the Tribunal was incorrect. The position is explained in the following manner: