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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)“It is therefore prayed that in view of the submissions made herein above and those to be made at the time of hearing this Hon'ble Court may very kindly be pleased to issue:
b)For quashing the circular No.10-JK (GAD) of 2021 dated 05-03-2021 issued by the GAD for keeping the roaster point of reserve category vacant /unfiled till the disposal of the cases by the Hon'ble Supreme Court and is Unconstitutional and is against the basic structure of the constitution of India.
c)Quashing the letter no. DSD-Poly / 52/2022-02 dated 24-03-2022 by virtue of which the Administrative Department called the particulars /data of the each officers online portal of GAD Vigilance APRS work and conduct integrity certificate and certificate for litigation with respect to the Mechanical Department of Govt. Polytechnic, UT of J&K. In which the respondent selectively without following the reservation rules given the name of 5 persons of General Merit only Ignoring the roaster point fixed in Reservation Rules.
d)Directing the respondents to follow the J&K Reservation Act and Rules for providing reservation in promotion and forward the name of the applicant and particulars /data for consideration of the applicant being next in merit in SC category against the third vacancy of HOD (Roaster point) Mechanical Department in Govt. Polytechnic, UT of J&K and promote the applicant against the roaster point as HOD Mechanical Engg. Department in Govt. Polytechnic, colleges of UT of J&K.
e)Any other order or direction which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case in hand.”
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The case of the applicant, as projected in the Original Application, is that he was selected and appointed as Lecturer Grade-I in Mechanical Engineering in the Technical Education/Skill Development Department, Government of Jammu & Kashmir, against a State Cadre post on 12.04.2013. The applicant belongs to the Scheduled Caste (SC) category and his service conditions are governed by the Technical Education Gazetted Service Recruitment Rules, 2002.
It is averred that the next promotional post in the hierarchy is that of Head of Department (HOD)/Workshop Superintendent, Engineering. Under the applicable Recruitment Rules, the feeder category comprises eligible officers possessing a degree in the appropriate branch of Engineering or equivalent qualification with the prescribed experience of five years in the respective discipline. The applicant claims that he fulfils the requisite eligibility conditions, being possessed of B.Tech. as well as M.Tech. degrees in Mechanical Engineering, besides the requisite experience.
The applicant further submits that two Lecturer Grade-I officers in Mechanical Engineering had earlier been promoted/regularized as HOD vide Government Order No. 111-Edu (Tech.) of 2011 dated 26.07.2011, with effect from 15.10.2009, and were subsequently promoted as Principals. According to him, thereafter five posts of HOD in Mechanical Engineering became available/vacant, including vacancies arising on account of promotion and creation of new posts.
The grievance of the applicant essentially relates to the manner in which the aforesaid promotional vacancies were sought to be filled. He asserts that under the J&K Reservation Rules, 2005, read with the applicable roster, the third roster point was earmarked for the SC category. According to the applicant, he being the senior-most eligible Lecturer Grade-I belonging to the SC category, was entitled at least to consideration against the relevant roster point. He further claims that even if the posts of HOD and Workshop Superintendent are treated separately, the third roster point in the cadre of HOD would fall to the SC category.
It is further pleaded that the Department subsequently treated the posts of HOD and Workshop Superintendent as separate categories, with five vacancies of HOD (Mechanical Engineering) and three vacancies of Workshop Superintendent stated to be available for promotion. However, while initiating the process for filling the vacancies of HOD, the respondents allegedly called for the particulars of candidates belonging to the Open Merit category without considering the applicant against the roster point claimed by him.
The applicant has also questioned Circular No. 10-JK (GAD) of 2021 dated 05.03.2021, whereby the roster points pertaining to reserved categories were directed to be kept vacant/unfilled pending disposal of the matters before the Hon’ble Supreme Court. His case is that, notwithstanding the said Circular, the respondents neither considered him against the SC roster point nor kept the corresponding vacancy unfilled; instead, particulars of five candidates belonging to the Open Merit/Unreserved category were forwarded for consideration.
In this backdrop, the applicant has challenged communication No. DSD-Poly/52/2022-02 dated 24.03.2022, whereby the Administrative Department called for the requisite particulars/data, including vigilance status, APRs, work and conduct/integrity certificates and litigation certificates in respect of officers of the Mechanical Engineering Department. His principal grievance is that the names of five General Merit candidates alone were processed, allegedly ignoring the applicable reservation roster and his claim as an SC category candidate.
The applicant further seeks to distinguish the legal position prevailing after the constitutional changes of 05.08.2019. According to him, with the application of the Constitution of India and its amendments to the Union Territory of Jammu & Kashmir and the changes brought about by the J&K Reorganisation Act, 2019, the legal position concerning reservation in promotion stood altered. On this premise, he contends that his claim could not have been denied merely by relying upon the earlier position concerning reservation in promotion.
It is lastly averred that the applicant submitted a representation before the competent authorities seeking consideration of his claim, but the same was not favourably considered and the respondents proceeded with the cases of Open Merit candidates. Aggrieved thereof, he has approached this Tribunal seeking, inter alia, quashing of Circular dated 05.03.2021 and communication dated 24.03.2022 and a direction to the respondents to consider his candidature for promotion as HOD, Mechanical Engineering, against the roster point claimed to be available for the SC category.
The respondents have filed their reply statement wherein they have averred as follows: -
On merits, the respondents have explained that promotions/regularizations to the posts of HOD (Mechanical)/Workshop Superintendent (Mechanical) were considered by the DPC/PSC during the years 2011 and 2012 and were made from time to time on the basis of the existing seniority position and by utilization of the applicable roster points in terms of SRO 144 of 2008. The vacancies had arisen on account of retirement/promotion of the existing HODs as Principals as well as creation of posts.
The respondents have furnished the earlier roster position to demonstrate that the reservation roster had already been operated. Sh. Inderjeet Singh was regularized as HOD (Mechanical) w.e.f. 15.10.2009 against Roster Point No. 01 (OM) and Ms. Reetu Jamwal was regularized w.e.f. 15.10.2009 against Roster Point No. 02 (OM). Thereafter, Sh. Arun Bangotra, belonging to the SC category, was regularized w.e.f. 01.03.2011 against Roster Point No. 03 (SC). Similarly, Sh. Manzoor Kumar was regularized w.e.f. 01.03.2011 against Roster Point No. 04 (RBA). The fifth roster point, earmarked for ST category, was stated to have been de-reserved in favour of an Open Category candidate, Sh. Vivek Sharma, in the absence of an eligible candidate belonging to the said category in the Department.
It is thus the specific stand of the respondents that the benefit of reservation available to the SC category at Roster Point No. 03 had already been extended to Sh. Arun Bangotra in the earlier promotional exercise. Accordingly, the applicant’s assertion that the third roster point remained available for being utilized in his favour is denied. The respondents maintain that the roster had already been operated up to Roster Point No. 05 in respect of vacancies which had arisen much prior to the applicant’s entry into service.
The respondents emphasize that the applicant was appointed as Lecturer Grade-I only on 12.04.2013, whereas the vacancies against which Roster Points Nos. 01 to 05 had been utilized had accrued substantially earlier. Consequently, according to the respondents, the applicant was not even borne on the service/cadre when those vacancies arose and could not claim any right of consideration against a roster point already consumed before his appointment.
With regard to the subsequent promotional exercise, it is submitted that for the five available vacancies which had accrued in the year 2011, the Department proposed to proceed from Roster Point No. 06 onwards. According to the respondents, Roster Points Nos. 06, 07, 08 and 09 were meant for Open Merit, whereas Roster Point No. 10 was meant for OSC category, in terms of SRO 144 of 2008. The proposal was, therefore, stated to have been prepared in accordance with the continuing roster rather than by restarting the roster from Point No. 01.
The respondents further submit that the officials figuring at Serial Nos. 01 to 05 of the seniority list, notified vide Government Order No. 44-JK (DSD) of 2022 dated 12.05.2022, were proposed to be considered against the aforesaid five vacancies. The applicant, on the other hand, figures at Serial No. 07 in the said seniority list. On this basis, the respondents contend that he did not fall within the zone of consideration for the five available vacancies and, therefore, could not claim consideration for promotion as HOD against those vacancies.
It is also the stand of the respondents that no vacancy could be kept reserved for the applicant merely to facilitate his future consideration, particularly in view of the standing instructions of the General Administration Department contained in O.M. No. GAD/Mtg/RB-IV/04/2016 dated 21.06.2016, which, according to them, operated till further review.
The respondents have additionally pointed out that the five vacancies presently sought to be utilized in the DPC proposal had accrued in 2011, i.e., about two years prior to the applicant’s appointment on 12.04.2013, whereas the applicant became eligible for promotion to the post of HOD only in 2018 after acquiring the prescribed qualifying service. Their case, therefore, is that the applicant cannot claim consideration against vacancies which arose at a time when he was neither in service nor eligible for promotion to the post in question.
On the aforesaid premises, the respondents maintain that the promotional exercise has been undertaken on the basis of the applicable seniority position, the year of occurrence of the vacancies and the continuing reservation roster. Since the SC roster point at Serial No. 03 had already been utilized, and the applicant stood at Serial No. 07 in the seniority list while only five vacancies were under consideration, the respondents contend that no right of the applicant has been infringed. They accordingly pray that the Original Application, being devoid of merit, be dismissed.
We have heard learned counsel for the parties and carefully considered the pleadings and material placed on record. The principal question requiring determination is whether the applicant has established an enforceable right to be considered against Roster Point No. 03 (SC) for promotion to the post of HOD (Mechanical Engineering).
The claim of the applicant proceeds substantially on the premise that the third roster point continues to be available for an SC category candidate. The factual matrix placed by the respondents, however, shows otherwise. The earlier promotional exercise had already proceeded through Roster Points Nos. 01 to 05. Roster Points Nos. 01 and 02 were utilized for Open Merit candidates, whereas Roster Point No. 03 was utilized for an SC category officer, namely Sh. Arun Bangotra. The subsequent roster points were also dealt with in the earlier exercise. Thus, the foundation of the applicant’s claim that Roster Point No. 03 is presently available for utilization in his favour does not survive.
A reservation roster operates as a continuing mechanism for identifying the category against which successive vacancies are to be filled. Once a particular roster point has already been utilized, the roster cannot ordinarily be restarted merely because another employee belonging to the same reserved category subsequently becomes eligible. Accepting the applicant’s contention would effectively amount to reopening an already consumed roster point and disturbing the continuity of the roster without any factual basis in the record.
There is another material aspect which goes against the applicant. The vacancies presently forming the subject matter of the promotional exercise are stated by the respondents to have accrued in 2011. The applicant admittedly entered service subsequently, on 12.04.2013. More importantly, as per the respondents’ factual matrix, he acquired eligibility for promotion to the post of HOD only in 2018. Therefore, his claim to consideration against vacancies which had accrued prior to his appointment and long before he acquired the prescribed eligibility cannot be accepted merely on the basis of his subsequent eligibility or his belonging to the SC category.
The applicant has also not been able to dislodge the respondents’ specific factual position that the promotional exercise under consideration was required to proceed from Roster Point No. 06 onwards, the earlier roster points having already been consumed. Once Roster Point No. 03 stood utilized in favour of an SC category officer, no vested or accrued right could arise in favour of the applicant to demand that the same roster point be revived and applied to him.
Equally significant is the seniority position. The respondents have stated that five vacancies were available and the officials figuring at Serial Nos. 01 to 05 of the notified seniority list were being processed, whereas the applicant stood at Serial No. 07. The right of an eligible employee is a right to be considered for promotion in accordance with the applicable rules, seniority, roster and availability of vacancies; it does not translate into an indefeasible right to promotion or to consideration against a particular vacancy or roster point irrespective of the governing service position.
The reliance of the applicant upon the constitutional and statutory position concerning reservation in promotion after the reorganization of the erstwhile State of Jammu & Kashmir does not alter the factual difficulty in his case. Even assuming that the applicant’s submissions regarding the subsequent legal framework are examined on their own terms, the same would not automatically revive a roster point which, on the respondents’ pleaded factual position, had already been utilized in an earlier promotional exercise. The present case, therefore, can be decided on the narrower ground of the actual roster and vacancy position without entering into a wider constitutional adjudication which is unnecessary for disposal of the controversy.
Similarly, the challenge to Circular No. 10-JK (GAD) of 2021 dated 05.03.2021 does not advance the applicant’s individual claim for promotion. The applicant can succeed only if he demonstrates that a vacancy or roster point against which he was legally entitled to consideration was available and was wrongfully denied to him. On the material placed before us, such a right has not been established. The records relied upon by the applicant themselves show that his claim is specifically for consideration against the third SC roster vacancy. The respondents’ factual explanation that the said roster point stood consumed earlier strikes at the very basis of that relief.
It is settled in service jurisprudence that judicial review in matters of promotion is concerned with ensuring lawful and fair consideration in accordance with the governing rules; the Tribunal cannot direct promotion against a particular vacancy or reserved roster point unless the employee establishes a corresponding enforceable right. In the present case, the applicant has not demonstrated that Roster Point No. 03 remained unutilized, that any presently available vacancy was earmarked for the SC category and fell to his turn, or that despite falling within the relevant zone of consideration he was arbitrarily excluded.
We are, therefore, of the considered view that no illegality or arbitrariness warranting interference by this Tribunal has been established in the action of the respondents insofar as the applicant’s claim for consideration against Roster Point No. 03 is concerned. The applicant cannot claim a vested right over an earlier roster point merely because he subsequently acquired eligibility for promotion.
At the same time, it is clarified that dismissal of the present Original Application shall not prejudice the applicant’s right to be considered for promotion against any future/current vacancy falling to his turn, in accordance with his seniority, eligibility, the roster position and the rules/instructions governing the field at the relevant point of time. This clarification shall not be construed as conferring upon the applicant any right to promotion or to reservation of a vacancy in his favour.
In view of the foregoing discussion, the Original Application is found devoid of merit and is accordingly dismissed. The interim order, if any, stands vacated. Pending M.A(s), if any, shall also stand disposed of.
No order as to costs.