M.P. Choudhary & Ors. vs Union Of India & Ors.

By Mallika Arya, AM.-

The applicants are aggrieved that their juniors belonging to the reserved category have been promoted taking recourse to the RBE No.126/2010, which has been set aside by various judicial pronouncements.

The respondents, in their reply, have accepted that the promotions in this case have been effectuated by applying the reservation rules. However, by the time the Railway Board’s letter RBE No.117/2016 dated 30.09.2016 (Annexure R-1) was issued in pursuance to directives of the Hon’ble Supreme Court in Contempt Petition (C) No.314/2016 in SLP (C) No.4831 of 2012 dated 29.09.2016, the promotion orders in respect of the reserved candidates had already been given effect in this case. Since there is no direction to withdraw or cancel the promotion orders issued in pursuance to RBE No.126/2010 prior to 29.09.2016, no relief can be granted to the applicants.

We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.

The principal question which arises for consideration in this case is whether the promotion already granted to the persons pursuant to RBE No.126/2010 dated 01.09.2010 can subsequently be cancelled/recalled on the ground that the said RBE was kept in abeyance by Railway Board vide RBE No.117/2016 dated 30.09.2016, particularly when the promotion had already been effected prior to the issuance of RBE No.117/2016 and the legal position concerning reservation in promotion is itself under challenge before the Hon'ble Supreme Court.

Learned counsel for the applicants has contended that the Jaipur Bench of this Tribunal in Original Application No.62/2011 decided on 26.11.2011 (Annexure A-5) had directed not to give effect to RBE No.126/2010 and the orders passed by the Jaipur Bench were affirmed by the Hon’ble High Court of Rajasthan at Jaipur in D.B. Civil Writ Petition No.2773/2012 decided on 11.11.2013 (Annexure A-6) and thereafter by the Hon’ble Supreme Court in SLP(C) No.219/2015 dated 12.01.2015. He, has therefore, submitted that the promotions made in pursuance to RBE No.126/2010 are unlawful in this case.

It is to be noted that RBE No.126/2010 dated 01.09.2010 was issued by the Railway Board on the basis of the instructions of the Department of Personnel & Training. The said circular clarified, inter alia, the manner in which SC/ST candidates promoted on their own merit and seniority, and not owing to reservation or relaxation of qualification, were to be adjusted against unreserved points of the reservation roster. Significantly, paragraph 3 of RBE No.126/2010 contained a specific protective stipulation:-“the staff already promoted prior to issue of this letter may not be reverted.” It further contemplated that any shortfall in the reserved category, if any, could be made good through vacancies arising in future. Subsequently, in view of the proceedings pending before the Hon'ble Supreme Court concerning the legality of the underlying DoP&T instructions and the undertaking given before the Hon'ble Supreme Court, the Railway Board issued RBE No.117/2016 dated 30.09.2016 whereby RBE No.126/2010 was kept in abeyance with immediate effect till further advice. The controversy, therefore, is whether guidelines for keeping the circular abeyance subsequently can be applied retrospectively and undo promotions which have already been granted before 30.09.2016. In our considered view, the answer has to be in negative.

The expression “kept in abeyance” ordinarily operates upon the future operation of an executive instruction. It does not, by itself, obliterate actions which had already been completed under the authority of the instruction before it was placed in abeyance, unless the subsequent order expressly or by necessary implication provides for retrospective reopening of such completed actions. RBE No.117/2016 does not contain any direction that promotions already granted under RBE No.126/2010 should be cancelled, recalled or reviewed. Thus, a subsequent order placing RBE No.126/2010 in abeyance cannot be construed as having the effect retrospectively thereby deleting the protection which had already been incorporated in the earlier circular. The mere fact that a promotion made prior to 30.09.2016 may subsequently become inconsistent with the interpretation of the reservation policy cannot become a legal basis for cancelling such promotion retrospectively.

The constitutional scheme of reservation in promotion under Article 16(4-A) has itself been examined by the Hon'ble Supreme Court in a series of decisions, including M. Nagaraj vs. Union of India, (2006) 8 SCC 212, Jarnail Singh vs. Lachhmi Narain Gupta, (2018) 10 SCC 396 and B.K. Pavitra (II) vs. Union of India, (2019) 16 SCC 129. In B.K. Pavitra (II), the Hon'ble Supreme Court explained that the judgment in M. Nagaraj (supra) concerned the constitutional validity and conditions governing the exercise of the enabling power under Article 16(4A), while also distinguishing reservation in promotion from consequential seniority. The legal position was therefore not one in which the administration could treat the question as conclusively settled so as to retrospectively invalidate promotions already granted under the then prevailing executive instructions.

It is a settled principle of service jurisprudence that an executive instruction which is subsequently modified, withdrawn or kept in abeyance cannot ordinarily be applied retrospectively so as to take away rights which have already accrued, unless such retrospective operation is expressly authorised by law. In none of the judicial pronouncements, the operations of RBE No.117/2016 (Annexure R-1) have been held effective retrospectively. Therefore, the promotions, once made under the rules/instructions contained in RBE No.126/2010, cannot be treated as non est merely because the policy has been subsequently altered. More particularly, where the very circular under which the promotions were made contained an express stipulation against reversion of staff already promoted, a subsequent order merely keeping that circular in abeyance cannot reasonably be interpreted as authorising retrospective cancellation. Such an interpretation would not only give retrospective effect to RBE No.117/2016 but would also render the specific protective clause contained in RBE No.126/2010 redundant.

For the aforesaid reasons, we do not find any merit in this Original Application and the same is accordingly dismissed. No order as to costs.