2002 JTR(SC) 74
2002 AIR(SC) 2875 ; 2002 AIR(SCW) 3273 ; 2002 LIC 2942 ; 2002 1 Scale 542 ; 2002 1 Scale 543 ; 2001 10 SCC 165 ; 2002 SCC(L&S) 688 ; 2002 KHC 1944
SUPREME COURT OF INDIA
B.N.Kirpal : K.G.Balakrishnan : Y.K.Sabharwal
All India Non Sc/st Employees Association
Versus
V.K.Agarwal
Case No. : 304 of 1999
Date of Decision : 1/17/02
Advocates Appeared: Goswamy N.N. : Katiyar Anil : Mariarputham A. : Murlidhar S. : Qadri S.W.A. : Rohtagi Mukul : Suri Sushma
Reservation principles do not apply to the reclassification or readjustment of existing posts unless such actions result in the creation of additional posts.
Act
Referred
:CONSTITUTION OF INDIA
: Art.16(4)
(A) Service Law - Reservation - Applicability in reclassification of posts - The principle of reservation does not apply if, as a result of reclassification or readjustment, no additional post is created; however, if a post is created, the principle of reservation would be applicable. (Para 4)
(B) Implementation of Court Orders - Duty of the state to provide truthful affidavits - Making incorrect statements regarding the implementation of judicial orders and failing to comply with directions to rework seniority lists entails a penalty of costs. (Paras 6, 9)
Facts of the case:
A dispute arose over the fixation of seniority for Group C and D posts following a restructuring order. The core issue was whether reservation principles applied to the upgradation of existing posts. Despite court clarifications and directions to rework seniority, the respondents filed misleading affidavits claiming compliance without actually completing the lists and later attempted to restrict the rework to only one specific cadre.
Findings of Court:
The contention that the revised seniority list was only for the ministerial cadre was rejected as an afterthought, as the original dispute encompassed all restructured Group C and D posts.
Issues: Whether reservation applies to the reclassification of existing posts without creating new positions and whether the respondents had complied with the court's directions to rework the seniority lists.
Ratio Decidendi: The principle of reservation is not triggered by the mere reclassification or readjustment of existing posts unless such a process results in the creation of an additional post. (Para 4)
Result: Respondents directed to file the revised seniority lists for non-ministerial staff within 10 weeks and pay costs of Rs. 10,000/-.
(B) Implementation of Court Orders - Duty of the state to provide truthful affidavits - Making incorrect statements regarding the implementation of judicial orders and failing to comply with directions to rework seniority lists entails a penalty of costs. (Paras 6, 9)
Facts of the case:
A dispute arose over the fixation of seniority for Group C and D posts following a restructuring order. The core issue was whether reservation principles applied to the upgradation of existing posts. Despite court clarifications and directions to rework seniority, the respondents filed misleading affidavits claiming compliance without actually completing the lists and later attempted to restrict the rework to only one specific cadre.
Findings of Court:
The contention that the revised seniority list was only for the ministerial cadre was rejected as an afterthought, as the original dispute encompassed all restructured Group C and D posts.
Issues: Whether reservation applies to the reclassification of existing posts without creating new positions and whether the respondents had complied with the court's directions to rework the seniority lists.
Ratio Decidendi: The principle of reservation is not triggered by the mere reclassification or readjustment of existing posts unless such a process results in the creation of an additional post. (Para 4)
Result: Respondents directed to file the revised seniority lists for non-ministerial staff within 10 weeks and pay costs of Rs. 10,000/-.
(1) IT is Indeed unfortunate that notwithstanding considerable time having elapsed orders of this Court passed from time to time have not been implemented.
(2) THE dispute in this case arose out of O.A. No. 326/89 which was filed by the petitioner, which is an Association of the Bikaner Division of the Northern Railway. This OA was filed pursuant to the order of restructuring which had been passed by the Railway Board with regard to Group C and D psots. The Tribunal disposed of this OA on 20th Oct, 1992. One of the Issues which arose consideration before the Tribunal was whether the reservation for SC and ST was applicable in the case of upgradation of existing posts.
(3) SPECIAL leave petition was filed by the respondents challenging the said decision, but by order dated 19th Nov. 1998 the order of the Tribunal was upheld.
(4) WHEN no seniority lists were prepared, the present contempt petition was filed. Various orders were passed and In order dated 13th March, 2000 the contention on behalf of the respondents was noticed, namely, that there was difficulty in Implementing different orders passed by the Tribunal because there was some conflict in the orders. Ultimately, on 7th Sept. 2000, this Court recorded the statement of the Solicitor General that an affidavit would be filed Indicating as to how the restructuring has been effected pursuant to the Railway Boards letter of 16th Nov. 1984. An affidavit was filed, but a contention was raised with regard to the applicability of the principle of reservation with regard to upgradation of existing posts. In the order dated 31st Jan. 2001, it was clarified that the principle of reservation does not apply if as a result of reclassification or re-adjustment there is no additional post which is created. It was clarified that if as a result of reclassiflcatlon and re-adjustment having been effected any post Is created then the principle of reservation would be applicable. It was noticed that the present case was restricted only to existing employees who were re-distributed into different scales of pay as a result of this upgradation. The Union of India took time to rework the seniority in the light of the clarification which was so Issued.
(5) ON the next date of hearing, namely, on 25th April, 2001 this Court was Informed by the Solicitor General that the order dated 31st Jan, 2001 had been Implemented and an affidavit to that effect would be filed.
(6) WE are sorry to note that the facts now reveal that on 25th April, 2001 the order of 31st Jan. 2001 had not been Implemented, even partially, and obviously the Solicitor General had been wrongly instructed .The order of 31st Jan. 2001 stated in no uncertain terms that the Union of India will rework the seniority in the light of clarification and a report to this effect was to be submitted within six weeks of the said date. Admittedly, a re- worked seniority in respect of Ministerial cadre only was prepared on 13th Oct. 2001. Therefore, as on 25th April, 2001, there was no compliance of this Courts order of 31st January, 2001 and the statement made to the contrary was obviously incorrect.
(7) THAT is not all. On 18th July, 2001, it was repeated that pursuant to the order of 31st Jan. 2001 the seniority of the persons concerned had been fixed. The seniority list was to be filed. Even on that date, no seniority list had been filed. It is only in the order of 7th Nov. 2001 that reference was made to the letter of 13th Oct. 2001 which indicated that seniority list had been reworked and notified pursuant to the orders of this Court.
(8) WE note that on two different occasions an Incorrect statement was made to the effect that seniority list had been prepared when, it fact, this was not so. Furthermore, a perusal of the OA as well as the order of the Tribunal and of this Court shows that the dispute was with regard to the fixation of seniority of Group C and Group D posts which had been restructured pursuant to the aforesaid decision of the Railway Board dated 16th Nov. 1984. It Is only now in an affidavit filed in Nov. 2001 that a plea is taken for the first time by the respondents that the revised seniority list was to be fixed only with respect to the Ministerial cadre. This is clearly an afterthought, with no regard to the truth, as such a plea was never taken earlier, nor was there any order that the revised list was to be only with regard to the Ministerial staff. The dispute between the parties related to all posts which were in Group C and Group D which were restructured.
(9) MR. Mukul Rohtagi, Addl. Solicitor General states that with regard to thenon Ministerial staff which is not covered by the seniority list of 13th Oct. 2001. the seniority list will be prepared and filed in Court within eight weeks. The needful should be done within 10 weeks. But in view of the fact that unnecessarily time of this Court has been wasted and incorrect statements made, the respondents shall pay to the petitioner costs ofRs. 10.000/-. Seniority lists which are sought to be revised should be filed in Court along with an affidavit within 10 weeks.
(10) TO come up for hearing aften 10 weeks. Order accordingly.