1997 JTR(SC) 617
1997 AIR(SC) 2419 ; 1997 AIR(SCW) 2332 ; 1997 4 JT 452 ; 1997 LIC 2343 ; 1997 2 LLN 651 ; 1997 3 Scale 403 ; 1997 4 SCC 342 ; 1997 SCC(L&S) 949 ; 1997 3 SCR 504 ; 1997 2 SCT 627 ; 1997 2 SLR 521 ; 1997 2 UPLBEC 1007 ; 1997 KHC 838 ; 1997 1 KLT(Online) 1122 ; 1997 3 Supreme 544
1997(3) Supreme 544
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
K. Manickaraj -Appellant
versus
Union of India -Respondent
Civil Appeal No. 2578 of 1997
(Arising out of SLP (C) No. 14110 of 1996)
Decided on 2-4-1997
Counsel for the Parties :
For the Appellant : Mrs. Pushpa Rajan and K.B. Sounder Rajan, Advocates.
For the Respondent : S.W.A. Qadri and A.K. Sharma, Advocates.
IMPORTANT POINT
While computing the number of post available for reserved category, there is no justification to exclude the upgraded post which had continued from 1988 till date.
Act Referred :SERVICE LAW : .
(A) The relevant Service Law governs the present appeal where a permanent civil servant belonging to the Scheduled Caste challenges the non-appointment to a promoted post. The impugned decision of the Central Administrative Tribunal, Madras Bench, dated 19.9.1995 in OA No. 267 of 1994, has been called in question on the ground that while computing the 15% reservation for Scheduled Caste in the cadre of Welfare Inspectors Grade-II, the Tribunal excluded three posts that had been upgraded from Grade-III to Grade-II for sports personnel. Under the Service Law, posts are classified into categories and cadres, and any restructuring or upgrading of posts within the cadre must be considered for reservation calculations unless expressly excluded by rules. The Tribunal erred in treating the upgraded posts as temporary and in ignoring them for the computation of the reserved quota.
(B) Key legal principles include: (i) posts upgraded from one category to another within the same cadre become part of the cadre strength and must be counted for determining reserved posts; (ii) temporary sports personnel upgradation, if continued over a long period, cannot be excluded from the calculation of reserved category posts; (iii) 15% reservation for Scheduled Caste must be computed on the actual, effective cadre strength; and (iv) an appellant in the Scheduled Caste is entitled to claim promotion if vacancies exist within the reserved quota.
Facts of the case:
The appellant, belonging to Scheduled Caste, was promoted to Welfare Inspector Grade-III on 27.12.1991. The cadre originally had 23 posts in Grade-II. Three posts were upgraded from Grade-III to Grade-II as early as August 1987 and continued thereafter, raising the effective Grade-II strength to 26. The Tribunal held that the upgraded posts could not be counted for 15% reservation, leading to only 3 Scheduled Caste incumbents and denying the appellant promotion. The appellant contended that the total posts should be taken as 26, allowing 4 reserved posts, and thus he was entitled to the promotion.
Findings of Court:
The Court found that the upgraded posts, though originally meant for sports personnel, continued in existence and must be included for computing the reserved quota. It held that excluding them was erroneous because their long continuance made them a permanent part of the Grade-II cadre. Consequently, the effective Grade-II strength was 26, allowing 4 posts for 15% reservation, with one reserved post remaining vacant, entitling the appellant to promotion.
Issues:
(1) Whether posts upgraded from Grade-III to Grade-II for sports personnel can be excluded while computing reserved posts for Scheduled Caste? (2) Whether the long continuance of such upgraded posts affects the cadre strength for reservation purposes?
Ratio Decidendi:
Posts upgraded within the same cadre and continued over time must be counted for determining reserved category posts; temporary upgradation that has effectively become permanent cannot be excluded; therefore, the 15% reservation must be calculated on the enhanced cadre strength, and the appellant was entitled to promotion.
Result:
The impugned judgment is set aside. The appeal is allowed, and the respondents are directed to consider the appellant's promotion to Welfare Inspector Grade-II with effect from 1993.
(A) The relevant Service Law governs the present appeal where a permanent civil servant belonging to the Scheduled Caste challenges the non-appointment to a promoted post. The impugned decision of the Central Administrative Tribunal, Madras Bench, dated 19.9.1995 in OA No. 267 of 1994, has been called in question on the ground that while computing the 15% reservation for Scheduled Caste in the cadre of Welfare Inspectors Grade-II, the Tribunal excluded three posts that had been upgraded from Grade-III to Grade-II for sports personnel. Under the Service Law, posts are classified into categories and cadres, and any restructuring or upgrading of posts within the cadre must be considered for reservation calculations unless expressly excluded by rules. The Tribunal erred in treating the upgraded posts as temporary and in ignoring them for the computation of the reserved quota.
(B) Key legal principles include: (i) posts upgraded from one category to another within the same cadre become part of the cadre strength and must be counted for determining reserved posts; (ii) temporary sports personnel upgradation, if continued over a long period, cannot be excluded from the calculation of reserved category posts; (iii) 15% reservation for Scheduled Caste must be computed on the actual, effective cadre strength; and (iv) an appellant in the Scheduled Caste is entitled to claim promotion if vacancies exist within the reserved quota.
Facts of the case:
The appellant, belonging to Scheduled Caste, was promoted to Welfare Inspector Grade-III on 27.12.1991. The cadre originally had 23 posts in Grade-II. Three posts were upgraded from Grade-III to Grade-II as early as August 1987 and continued thereafter, raising the effective Grade-II strength to 26. The Tribunal held that the upgraded posts could not be counted for 15% reservation, leading to only 3 Scheduled Caste incumbents and denying the appellant promotion. The appellant contended that the total posts should be taken as 26, allowing 4 reserved posts, and thus he was entitled to the promotion.
Findings of Court:
The Court found that the upgraded posts, though originally meant for sports personnel, continued in existence and must be included for computing the reserved quota. It held that excluding them was erroneous because their long continuance made them a permanent part of the Grade-II cadre. Consequently, the effective Grade-II strength was 26, allowing 4 posts for 15% reservation, with one reserved post remaining vacant, entitling the appellant to promotion.
Issues:
(1) Whether posts upgraded from Grade-III to Grade-II for sports personnel can be excluded while computing reserved posts for Scheduled Caste? (2) Whether the long continuance of such upgraded posts affects the cadre strength for reservation purposes?
Ratio Decidendi:
Posts upgraded within the same cadre and continued over time must be counted for determining reserved category posts; temporary upgradation that has effectively become permanent cannot be excluded; therefore, the 15% reservation must be calculated on the enhanced cadre strength, and the appellant was entitled to promotion.
Result:
The impugned judgment is set aside. The appeal is allowed, and the respondents are directed to consider the appellant's promotion to Welfare Inspector Grade-II with effect from 1993.
JUDGMENT
Pattanaik, J.-Delay condoned.
Leave granted.
2. This appeal by special leave is directed against the judgment of the Central Administrative Tribunal, Madras Bench dated 19.9.1995 in OA No. 267 of 1994. The said application has been filed by the appellant for a direction to the railway administration to promote the appellant as Welfare Inspector Grade - II with effect from 2.4.1993 as one post was available in the reserved category.
3. The brief facts necessary for deciding this appeal are stated as under :
The appellant was appointed as Assistant Station Master in the scale of Rs. 330-560 and was then promoted to a higher post in the scale of Rs. 425-640 with effect from 8.1.1985. He was further promoted as Welfare Inspector Grade - III in the scale of Rs. 1480-2300 and joined the said post on 27.12.1991. The appellant admittedly belongs to Scheduled Caste. The cadre of Welfare Inspectors consisted of 3 categories; namely: Welfare Inspector Grade - I in the scale of Rs. 2000-3200; Welfare Inspector Grade - II in scale of Rs. 1600-2660 and Welfare Inspector Grade - III in the scale of Rs. 1400-2300. By Order dated 27th January, 1993 the cadre strength of the different categories of Welfare Inspectors was restructured and it was directed that 35% of posts would be in Grade - I, 40% in Grade - II and 25% in Grade - III. In view of change of percentage of the different categories of posts, the appellant expected a promotion to Grade - II but the same having not been done, he filed the application before the Tribunal. It was averred in the application filed before the Tribunal that three posts from Grade - III having been upgraded to Grade - II, the total number of posts available in Grade - II is 26 as against the original number of 23 and since there is reservation of 15% for Scheduled Caste, the total number of posts available for the Scheduled Caste in Grade - II would work out at 4 but factually only 3 persons belonging to the Scheduled Caste are working in Grade - II, and therefore, the appellant was entitled to promotion to Grade - II. The respondent in the Counter-affidavit filed, however, contended that there has been no change in the strength of the post in Grade - II which remained at 23 but for sports personnel some posts were upgraded from Grade - III to Grade - II and those upgraded posts cannot be taken into account for determining the number of posts available for reserved category as such upgradation was temporary in nature and is not a permanent addition to the number of posts, and therefore, can t be taken into account for computation of 15% reservation in the said Grade - II. The Tribunal by the impugned judgment accepted the contention raised by the respondent and came to hold that the posts which have been upgraded having been borrowed from Grade - III and being specially meant for sports personnel cannot be counted for determining the 15% reserved quota meant for Scheduled Caste, and therefore, the cadre strength of Grade - II being 23 only 3 persons from the Scheduled Caste would be promoted to the Grade - II and thus three persons having already been there the claim of the appellant cannot be allowed. With this conclusion the Tribunal having dismissed the application filed by the appellant, the present appeal has been preferred.
4. The question that arises for consideration, therefore, is whether the number of upgraded post from Grade - III to Grade - II meant for sports personnel can be taken into account for determining the number of reserved posts available for Scheduled Caste in Grade - II. It is admitted that total number of posts in Grade - II was 23 and 3 posts from Grade - III were upgraded to that of Grade - II. The upgraded posts which were made as early as in August 1987, as per Memorandum dated 24.08.1987, still continues. It is therefore, not possible for us to accept the contention of the learned counsel for the respondent that the alleged upgradation was made for a temporary period meant for sports personnel. The posts which were upgraded in the year 1988 having continued till date, the cadre strength of Grade - II Inspectors must be held to have become 26 and not 23 as contended by the respondent. If 15% of the cadre is meant for reserved category people then it would work out at 4 and admittedly there are only 3 persons belonging to the Scheduled Caste in Grade - II. In that view of the matter the appellant was entitled to be promoted against the 15% reserved quota of posts in Grade - II treating the total number of posts in the Grade - II to be 26. In our considered opinion Tribunal was in error in not taking into account the upgraded posts which have been upgraded from Grade - III to Grade - II on the ground that it was meant for sports personnel. While computing the number of post available for reserved category, there is no justification to exclude the upgraded post which had continued from 1988 till date.
5. In the aforesaid premises the impugned judgment of the Tribunal is set aside and OA No. 267 of 1994 filed in the Central Administrative Tribunal, Madras stands allowed. The respondents are directed to consider the case of promotion of the appellant to a post in Grade - II, Welfare Inspector, with effect from 1993. The appeal is allowed. There will be no order as to costs.
Appeal allowed.
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Parallel Citations of other Journals :
K. Manickaraj v. Union of India, 1997(3) Supreme 544 : JT 1997(4) SC 452 : AIR 1997 2419
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