Hon’ble Mr. R.N. Singh, Member (J)

1. In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants, 15 in number, who are working as Loco Pilot Goods, are aggrieved by the order dated 6.12.2016 (Annexure A/1) to the extent that the official respondents have applied the reservation in promotions in violation of the judgments of the Hon’ble Supreme Court in the cases of U.P. Power Corporation Limited vs. Rajesh Kumar and others, reported in (2012) 7 SCC 1 , and M. Nagaraj and others vs. Union of India and others, reported in (2006) 8 SCC 212 , by ignoring the senior General category candidates for their promotion from the post of Loco Pilot Goods to the post of Loco Pilot Passenger, Pay Band Rs.9300-34800 with Grade Pay Rs.4200.

2. The applicants have prayed for quashing of the impugned order dated 6.12.2016 only to the extent by which reservation has been applied in promotion to the posts of Loco Pilot Passenger and consequently, a direction to the respondents to fill up all the vacant post of Loco Pilot Passenger on the basis of seniority without applying reservation keeping in view the law laid down by the Hon’ble Supreme Court in the case of M. Nagaraj (supra).

3. Pursuant to notice to the respondents, they have filed their counter replies and the applicants have filed their rejoinders.

4. We have heard the learned counsels for the parties and have also perused the pleadings on record.

5. The undisputed facts are that a panel has been prepared vide impugned communication dated 6.12.2016 for the purpose of filling up 285 posts (UR-208, SC-55 & ST-22). The selection has been conducted on the basis of suitability-cum-bench marking and the names have been taken from the seniority of Loco Pilot Goods. The channel of promotion of all the applicants from the post of Loco Pilot Goods is to the post of Loco Pilot Passenger in Pay Band-II Rs.9300-34800 with Grade Pay Rs.4200. Though it has been contended in the counter reply filed by the official respondents, that five applicants, namely, Shri B.N. Durg Pal (Applicant No.3), Mohd. Akram (Applicant No.6), Pramod Kumar (Applicant No.5), Sumant Lal Santoshi (Applicant No.13), and Sunil Kumar Verma (Applicant No.8) have already been included in the panel, the same is subject to final outcome of SLP, lying pending vigilance clearance, any appointment etc.

6. Learned counsel for the applicants has referred to and relied upon various judgments of the Hon’ble Apex Court in the body of the OA, including the judgments of the Hon’ble Supreme Court in the cases of U.P. Power Corporation Limited (supra), M. Nagaraj (supra), Suraj Bhan Meena and another vs. State of Rajasthan and others, reported in (2011) 1 SCC 467 , Jarnail Singh vs. Lachhmi Narain Gupta, reported in 14 (2018) 10 SCC 396 , etc.

7. Similarly the private respondents while opposing the present OA have referred to and relied upon the various judgments of the Hon’ble Apex Court in their counter reply as well as by filing the compilation of judgments, including the judgments of the Hon’ble Apex Court in the cases of Indira Sawhney vs. Union of India, reported in 1992 Supp. (3) SCC 217, R.K. Sabharwal vs. State of Punjab, reported in 1995 (2) SCC 745 , Sudhakar Baburao Nangnure vs. Noreshwar Raghunathrao Shende, 2019 (4) SCALE 417 , etc.

8. However, Shri Yogesh Sharma, learned counsel for the applicants has submitted that the issue involved in the present OA is as to whether the respondents are legally correct in applying the reservation in promotion without complying with the directions of the Hon’ble Apex Court in M. Nagaraj (supra). Shri Yogesh Sharma, learned counsel for the applicants, has also submitted that the issue involved in the present OA is no more res integra in view of the latest order/judgment dated 18.2.2020 of a coordinate Bench consisting of one of us namely, Hon’ble Shri A.K. Bishnoi, Member (A), of this Tribunal in OA 2047/2014, titled Prakash Chandra & Ors. Vs. Secretary, Railway Board & Ors. He has further submitted that the same issue has also been considered by another coordinate Bench of this Tribunal in a common order/judgment dated 22.01.2018 in OA No.3476/2013 with a batch of 40 other cases, including OA No.4209/2015, titled Manoj Kumar Singh vs. All India Institute of Medical Science (AIIMS) & Anr., which has been affirmed by the Hon’ble Apex Court by dismissing the Special Leave to Appeal (Civil) No.27300/2019 arising out of order/judgment dated 22.01.2018 of this Tribunal in OA No.4209/2015 under reference, vide judgement dated 25.10.2021.

9. On the other hand, Dr. Chauhan, learned senior counsel and Sh. Krishna, learned counsel appearing for the respondents have vehemently argued that in view of order/judgment dated 26.10.2021 of the Hon’ble High Court of Delhi in WP (C) No.2633/2021, titled Gyan Singh & Ors. vs. Union of India & Ors., the present OA is liable to be rejected.

10. Sh. Krishna, learned counsel for official respondents has further argued that the present OA is liable to be rejected also keeping in view the order/judgment dated 17.12.2020 of a coordinate Bench of this Tribunal, consisting of one of us, namely, Hon’ble Sh. R.N. Singh, Member (J), in OA No.571/2019, titled Anita Rai Saxena vs. All India Institute of Medical Sciences. Sh. Krishna has also argued that the applicants have prayed for a direction to the respondents not to resort to reservation in promotion, and such prayer, being in contradiction with the provisions of the Constitution, the OA is not maintainable. Shri Krishna has further submitted that the order/judgment of this Tribunal in the case of Prakash Chandra (supra) relied upon by the learned counsel for the applicants has not attained finality as a review application has been filed by the respondents against the said order/judgment. He has also submitted that the applicants have not challenge the OM dated 21.01.2002 in the instant OA.

11. We have perused the pleadings on record and considered the submissions made by the learned counsels for the parties carefully.

12. We are of the view that the issue involved in the present OA is regarding as to whether reservation in promotion is to be applied while passing the impugned order dated 06.12.2019 or not. In this view of the matter, we may revert to, refer to and rely upon the judgments heavily by the learned counsels for the parties.

13. In OA No.3476/2013 and other connected 40 cases, the Tribunal vide Order/Judgment dated 22.1.2018 has recorded its findings in para no.1 thereof, as under:-

“All these batch of OAs are pertaining to the issue of reservations in promotions and hence are being disposed of by way of this common order.”

In the said common order/judgment, this Tribunal has considered the law laid down by the Constitutional Bench of the Hon’ble Apex Court in the case of M. Nagaraj (supra), the judgments of the Hon’ble Apex Court in Suresh Chand Gautam vs. State of Uttar Pradesh & Ors., reported in AIR 2016 SC 1321 , The State of Tripura & Ors. Vs. Jayanta Chakraborty & Ors. in Civil Appeal Nos.4562-4564 of 2017 & batch, decided on 14.11.2017, and Ashok Sadarangani & Anr. Vs. Union of India, reported in (2012) 11 SCC 321 , and held in paras 11 and 15, as under:-

“11. Coming to the facts of the individual cases, it is seen that certain OAs were filed questioning the orders of the respondents wherein the rule of reservation was followed in promotions and that certain OAs were filed seeking to restrain the respondents from following the reservations in promotions. Similarly in certain OAs, as an interim measure, the respondents were restrained from proceeding further to give effect to the rule of reservation in promotions and whereas in certain OAs their action in following reservations in promotions was made subject to the result of the OAs. In any event, in view of the above referred categorical declaration of the law by the Hon’ble Apex Court in M. Nagaraj (supra) unless the mandatory exercise of collecting the quantifiable data is conducted, no authority or Government can follow the rule of reservation in promotions. Since admittedly in Railways or in any other respondent department, no such exercise is conducted, their action in following the rule of reservation in promotions is unsustainable.

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15. In the circumstances and for the aforesaid reasons, the respondents are directed to act in terms of M. Nagaraj (supra), i.e. without following the rule of reservation in promotions and to redraw the promotional lists/panels, if already issued, with all consequential benefits, however, without any back wages in the circumstances. This exercise shall be completed within 90 days from the date of receipt of a copy of this order. Accordingly, all the O.As. are disposed of.”

14. The judgment dated 25.10.2021 passed in Special Leave Appeal (Civil) No.27300/2019, wherein the aforesaid order/judgment dated 22.10.2018 in OA No.4209/2015 (supra) was challenged before the Hon’ble Supreme Court, reads as under:-

“No Additional documents have been filed by the petitioners.

Learned counsel for the petitioners submits that, that exercise has not been based on a quantifiable data and that is the reason the material qua quantifiable data has not been filed before this court, as requested vide order dated 10.02.2020.

The aforesaid being the position, as per the law prevalent for the time being, we cannot fault the impugned judgment.

The special leave petition is, accordingly, dismissed.”

15. Paras 1, 6 and 7 of the order/judgment dated 18.02.2020 of this Tribunal in Prakash Chandra’s case (supra) read as under:-

“In this OA, the applicants challenge an order dated 05.06.2014 through which the promotions were effected to the post of Master Craftsmen (MCM) in the Northern Railway, by applying the rule of reservation in the category of SC/ST candidates.”

“6. In the recent past, the Hon’ble Supreme Court in the case of Mukesh & Anr. vs. State of Uttarakhand & Ors., Civil Appeal No. 1226/2020, explained the various principles, governing this very issue.

7. Therefore, we allow this OA and issue the same directions as were issued in OA No. 1128/2011, namely, that

1. The Northern Railway or the Railway administration, in general shall take a policy decision indicating the parameters for introduction and implementation of the reservation in promotions, which shall include:

(i) the verification of the representation of the category of Scheduled Castes & Scheduled Tribe employees in the post or cadre for promotion to which, reservation is sought to be effected and the resultant effect of any on the efficiency of the administration;

(ii) the manner in which the concept of creamy layer shall be applied in enforcing such reservation in promotions; and

(iii) the duration up to which the promotion shall be in force. 2. The view of the Association of Scheduled Caste & Scheduled Tribe employees on the one hand and the Association of employees in general on the other hand, shall be taken into account before such parameters are identified.

3. Unless and until a decision at the level of Ministry of Railways & Railway Board is taken as regards the implementation of the reservation in promotions, the same shall not be effected at the lower levels.

4. If such guidelines already exist in respect of any post or cadre, reservations in promotion can be made to such posts or cadre, duly referring to the relevant guidelines and administrative orders.

5. If any promotions have taken place contrary to the law as it exists now, it shall be open to the Railway administration to take corrective steps. Pending such action, the promotions so made shall be treated as provisional, without giving rise to any right to seniority in the promoted post.

6. The entire exercise indicated above shall be completed within a period of six months from the date of receipt of a copy of this order.”

16. In Writ Petition (Civil) No.2633/2021, titled Gyan Singh (supra) before the Hon’ble High Court of Delhi, the order/judgment dated 03.02.2021 passed by this Tribunal in OA No.4016/2016 was under challenge, and in paras 3 to 3.2 of the order/judgment dated 26.10.2021 passed by the Hon’ble High Court in the said Writ Petition, read as under:-

“3. The core issue which arises for consideration is: whether the petitioners should get the benefit of consequential seniority on having been promoted to the post of Cameraman Grade-I, having regard to the fact that most of them were promoted to the said post on date(s) earlier to respondent nos. 4 and 5.

3.1. This issue arises in the backdrop of an accepted position that respondent nos. 4 and 5 were appointed to the feeder post [i.e., the post of Cameraman Grade–II] earlier in point of time than the petitioners.

3.2. The Tribunal, via the impugned judgment, has ruled in favour of respondent nos. 4 and 5 by applying the “catch-up rule”. Being aggrieved, the petitioners have approached this court and assailed the impugned order of the Tribunal, on various grounds.”

The Hon’ble High Court had considered the facts of the case as well as OM dated 21.01.2002 issued by the Department of Personnel & Training. The Hon’ble High Court, after considering the judgments of Hon’ble Supreme Court in Sudhakar Babu Rao Nangure (supra), M. Nagaraj (supra), Jarnail Singh (supra) etc., held in paras 13.2(a) and 14 to 15.1, as under:-

“13.2(a) Thus, it is quite clear that respondent nos. 4 and 5 only assailed the impugned seniority list i.e., seniority list dated 01.11.2016. There was no challenge laid to the OM dated 21.01.2002. Had OM dated 21.01.2002 been challenged, the official respondents would have had the opportunity to demonstrate as to, how it was on facts and in law, tenable.

Conclusion:-

14. Thus, for the foregoing reasons, we are of the view that, since the impugned order dated 03.02.2021, passed by the Tribunal, is not in line with the judgment of the Supreme Court rendered in the Sudhakar Babu Rao case, it deserves to be set aside.

14.1. It is ordered accordingly.

15. The result would be that the impugned seniority list dated 01.11.2016, in its original form, would get revived.

15.1. Resultantly, the petitioners would be entitled to consequential seniority, as contended by them before the Tribunal.”

17. In Anita Rai Saxena (supra), the applicant belonged to Scheduled Caste (SC) community and she was appointed as Junior Hindi Translator in the pay scale of Rs.1400-2300 on direct recruitment basis in the year 1994 and joined AIIMS, New Delhi on 01.10.1994. She was promoted as Senior Hindi Translator in pay scale PB2 + Grade Pay Rs.4600 on 14.01.2015 on her turn and on her own merit, and as per the recruitment rules, the next promotion lies to the post of Hindi Officer in pay scale PB3 + Grade Pay Rs.5400, after completion of three years of service a Senior Hindi Translator. Accordingly, her promotion was due w.e.f. 14.01.2018 and a draft seniority list of Senior Hindi Translator was published on 19.04.2018 vide which objections were called. Since no such objections were received, the said list became final. The applicant stood at serial no.1 in this seniority list. When DPC was held in August, 2018 for the post of Hindi Officer, the applicant was ignored and two of her juniors, both from unreserved category, were considered and promoted vide order dated 29.01.2019, and one post remained vacant. The applicant made her representation and when her grievances were not redressed, the applicant had approached this Tribunal by way of the said OA. Paragraphs 15 to 18 of the order/judgment of this Tribunal dated 17.12.2020 in the case of Anita Rai Saxena (supra), read as under:-

“15. The controversy, raised in the instant OA, lies in a narrow compass: whether a reserved category candidate who is next in turn for promotion on his/her own merit, can be promoted on an unreserved vacant post.

The issue was deliberated in R.K. Sabharwal (para-6.1 supra) and was settled wherein it was held that it is incumbent on State to reach a conclusion that backward classes, for whom reservation is made, are not adequately represented in State Services. Thereafter, post based roster needs to be followed especially for initial recruitment, wherein certain roster points need to be earmarked to the intended reserved community, to the extent of reservation to be achieved on running basis, wherein the roster point, which is not meant for a reserved community, can be occupied by a General as well as a reserved community candidate depending upon his/her turn in the select panel prepared as per the method of appointment by promotion i.e. whether senioritycum-suitability method or as per merit based method. As against this, the roster point for reserved community must necessarily be filled by a candidate belonging to that community only.

This position has remained unchanged.

16. The interim directions dated 17.05.2018 by Hon‟ble Apex Court in Jarnail Singh case (para-7 supra), which has been relied upon by the respondents, are also to the effect that promotion for ‘reserved to reserved’ and ‘unreserved to unreserved’ as well as on merit can be continued. Thereafter, detailed order was also passed by Hon‟ble Apex Court in this Jarnail Singh case on 26.9.2018 wherein this position remained unchanged. The order dated 15.04.2019 (para 10.1 supra) to maintain status quo, therefore, does not alter the directives, which were given in R.K. Sabharwal (para-6.1 supra).

17. The respondents have referred the issue of promotion of applicant, for clarification to DoPT as well as Ministry of Health & Family Welfare, who in turn have also consulted Ministry of Law & Justice for clarity. They had clarified to act as per DoPT directives. The DoPT directives were issued on 11.07.2002, 31.01.2005, 10.08.2010 and 15.06.2018 (para-8 supra).

In none of these directives there is any prohibition that a reserved category candidate cannot be promoted in his/her turn on merit for a vacancy which may be earmarked for unreserved category.

Therefore, while an unreserved category candidate can be promoted against an unreserved vacancy only, a reserved category candidate can be promoted to a reserved vacancy as per reservation as well as he/she can be considered for promotion against an unreserved vacancy if he/she happens to be the next candidate in line for promotion on merit.

18. In view of the foregoing, there is merit in the OA and it needs to be allowed. Accordingly, OA is allowed.”

18. On careful perusal of the order/judgment of this Tribunal in Prakash Chandra’s case (supra), it is evident that the issue of reservation in promotion was considered by this Tribunal and after considering the judgment of the Hon’ble Supreme Court in M. Nagaraj (supra), Jarnail Singh (supra) and Mukesh & Anr. Vs. State of Uttarakhand & Ors. [Civil Appeal No.122/2020], this Tribunal, while allowing the said OA, had given certain directions and the same are evident from para 7 of the said order/judgment. Similarly, the issue of reservation in promotion has been answered by the coordinate Bench of this Tribunal in OA No.3476/2013 with a batch of 40 other cases, vide its common order/judgment dated 22.01.2018 and the same has been affirmed by the Hon’ble Supreme Court, vide its judgment dated 25.10.2021 passed in All India Institute of Medical Science (AIIMS) & Anr. vs. Manoj Kumar Singh & Ors. (supra).

19. On the other hand, on perusal of paragraphs 3 and 13.2 of the order/judgment dated 26.10.2021 of the Hon’ble High Court of Delhi in Gyan Singh (supra), it is evident that the issue before this Tribunal as well as before the Hon’ble High Court was with regard to consequential seniority on having been promoted to the post of Cameramen Grade-I and keeping in view the law laid down by the Hon’ble Apex Court in S. Panneer Selvam & Ors. vs. State of Tamil Nadu & Ors., reported in (2015) 10 SCC 292 by applying the catch up rule and further the issue before this Tribunal in Anita Rai Saxena (supra) was whether the reserved category candidate, who is next in turn for promotion on his/her merit, can be promoted on unreserved vacant post or not. The issue of reservation in promotion without complying with the directions of the Hon’ble Apex Court in M. Nagaraj (supra) was neither before this Tribunal in Anita Rai Saxena (supra) nor before the Hon’ble High Court in the case of Gyan Singh (supra) and on the other hand, this issue has been considered and decided by the coordinate Bench of this Tribunal vide common Order/Judgment dated 22.1.2018 in OA No.3476/2013 and other 40 cases, including OA No.4209/2015, titled Manoj Kumar Singh (supra), which was affirmed by the Hon’ble Apex Court vide judgment dated 25.10.2021 passed in Special Leave to Appeal (C) No.27300/2019 (All India Institute of Medical Science (AIIMS) and another vs. Manoj Kumar Singh and others).

20. Moreover, the OM referred to by the learned counsel for the respondents has been provisional in nature and further even if the order/judgment of this Tribunal in Prakash Chandra (supra) though challenged under review, the aforesaid common order/judgment dated 21.1.2018 of the coordinate Bench of this Tribunal has been affirmed by the Hon’ble Supreme Court vide aforesaid judgment dated 25.10.2021 and is on the issue involved in the instant OA. In this view of the matter, we respectfully follow the same.

21. In view of the above facts and circumstances and for the foregoing reasons, we are of the considered view that impugned order dated 6.12.2016 (Annexure A/1) to the extent the same has been issued by applying reservation in promotion without complying with the directions of the Hon’ble Supreme Court in M. Nagaraj (supra) is set aside. The respondents are directed to act in terms of the directions of the Hon’ble Apex Court in M. Nagaraj (supra) and redraw the promotional list/panel without following the rule of reservation in promotions and grant all consequential benefits to the eligible candidates, however, without any back wages in the circumstances. This exercise shall be completed within 90 days from the date of receipt of a certified copy of this Order.

22. The OA is partly allowed in the aforesaid terms.

23. Pending MAs stand disposed of accordingly. However, in the facts and circumstances, there shall be no order as to costs.