Supreme Court: In three appeals against an order directing separate zone of consideration for promotion of Scheduled Caste (SC)/Scheduled Tribe (ST) candidates to the post of Superintendent in Customs and Central Excise Commissionerate (CEC) from the post of Inspector, the division bench of Hemant Gupta* and Vikram Nath, JJ. has observed that the Tribunal and the High Court answered a question that did not arise. Therefore, the Court finds their orders clearly erroneous and not sustainable in law as the orders passed for regular promotion by extending the zone of consideration did not arise.
In this case three appeals were filed by the Government arising out of an order passed by the Central Administrative Tribunal (CAT), affirmed by the High Court of Delhi and High Court of Punjab & Haryana, directing separate zone of consideration for promotion of SC/ST candidates to the post of Superintendent in Customs and CEC from the post of Inspector and further for a similar direction by the High Court of Delhi but in respect of Indo-Tibetan Border Police for promotion to the post of Assistant Commandant from the post of Subedar Major Stenographer.
The respondents were aggrieved that there is a backlog of vacancies for the post of Superintendent which have not been filled up, because the candidates are not available within the zone of consideration. Therefore, to fill up the 29 posts of Superintendent, it was prayed that a separate zone of consideration be created for the ST candidates so that the vacancies in the cadre of Superintendent meant for them could be filled up.
The Court took note of the Office Memorandum dated 24.12.1980 which contemplated that the zone of consideration can be extended to five times the number of vacancies and the ST candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them. It is, thereafter, an Office Memorandum was issued on 30.4.1983 for regulating ad-hoc promotions for consideration of cases for SC and ST candidates with reference to an earlier Office Memorandum dated 6.4.1979. Moreover, another Office Memorandum was issued on 30.9.1983 pertaining to ad-hoc promotion by the Department of Personnel and Administrative Reforms, wherein the zone of consideration for SC and ST candidates was restricted up to five times.
The Court further took note of the ruling in Basudeo Anil v. Union of India, 2000 SCC OnLine SC 106, wherein the Court dealt with Office Memorandum dated 30.4.1983 and 30.9.1983 and it was held that the condition of restricting the number of SC and ST candidates to five times of the total number of such vacancies as provided in Office Memorandum dated 30.9.1983 is illegal Thus, the Office Memorandum dated 30.9.1983 was withdrawn on 15.3.2002 in view of the judgment of this Court in Basudeo Anil (supra) and it was held that ad-hoc promotions would be regulated as per instructions dated 30.4.1983.
The Court viewed that the Tribunal and the High Courts have missed the real controversy. The Government had issued an Office Memorandum dated 26.8.2004 to fill backlog vacancies reserved for SC and ST in promotion quota as a special drive and it was not relating to the Customs and Central Excise Commissionerate(C&CEC) or the Indo Tibetan Border Police (ITBP) but to all the employees of the Central Government.
Further, the candidates in the Office of C&CEC submitted representations for consideration for promotion to the grade of Superintendents, which were rejected on 4.2.2005 as the officers had joined Central Excise (Delhi Zone) as Inspectors on inter-Commissionerate on transfer basis in 2003 and were too juniors to be included even in the extended zone of consideration. Thus, the Tribunal has not examined the question of seniority on account of the Inter Commissionerate transfer, and the order dated 4.2.2005 was set aside, and a direction was issued to grant same treatment to SC/ST candidates in ad hoc promotions as well as in regular promotions. Further, after this decision of the Tribunal, Department of Personnel and Training (DoPT) issued a revised guideline for optimizing the size of zone of consideration.
The Court observed that there are three situations of promotion required to be examined. One is backlog vacancies for which a memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which a Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Third is for regular promotions wherethe Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up.
The Court further observed that the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in the Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. Further, the grievance of the candidates was only filling up of backlog vacancies and not regular or ad hoc promotions and the Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through the Departmental Promotion Committee (DPC).
The Court viewed that the validity of Office Memorandum dated 24.12.1980 has been upheld in P. Sheshadri v. Union of India, (1995) 3 SCC 552 and since its validity has been upheld, the validity cannot be put to test again based on the memorandum for filling up the backlog vacancies or ad hoc promotion.
The Court observed that the distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious, while filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared, but in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant, as all candidates who will be considered for promotion in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive. Similarly, the exercise undertaken to fill vacancies on an ad hoc basis stands on a different footing from the exercise undertaken for the grant of regular promotions.
Moreover, the Court held that “the High Court as well as the Tribunal fell into error on two aspects, by not addressing the issues that, whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents”, and applied the standard meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise. Therefore, the Court viewed that the orders of the High Courts are clearly erroneous and not sustainable in law, as the orders passed for regular promotion by extending the zone of consideration did not arise.
[Union of India v. Gopal Meena, 2022 SCC OnLine SC 995, decided on 10.08.2022]
*Judgment by: Justice Hemant Gupta.
