NAGESH PRASAD SINHA Vs. THE UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This writ application is filed by the petitioner for quashing the alleged supersession of the petitioner by respondent Nos. 3 to 7 to the post of a Head Clerk Selection Grade, Class III in the Department of Central Excise, Patna and for a further direction that the petitioner be promoted in accordance with law.

(2.) The petitioner was initially appointed in the Lower Division as a on the 10th June, 1949. He was promoted to the Upper Division on the 27th March, 1958 and confirmed in the said post on the 20th May, A chart showing the date of promotion in the Upper Division of the petitioner and respondents No. 3 to 7 has been annexed as annexure 1 to the writ petition. The said chart shows that the petitioner was promoted and confirmed as Upper Division Assistant before respondents No 3 to 7 It may be stated here that respondent . No 4 belongs to the scheduled tribe and respondents No. 3, 5 6 and 7 are scheduled castes. It appears from the averment made in the writ petition that a seniority list Corrected up to 15th Sept., 1969, was mane in which the position of the petitioner has been shown as 34 whereas those of respondents 3 to 7 have been shown against serial No. 64, 93, 65, 68 and 69 respectively. The petitioner has alleged that a post of Head Clerk fell vacant some time in 1969 to which he ought to have been promoted, but it appears that respondent No. 3 Ramnandan Choudhury was appointed in that post on 22nd April, 1969. Similarly in 1970 again there were two vacancies for the post of Head Clerk which were filled up by respondent No. 4 Matlu Oraon and respondent No. 5 Jag Narayan Paswan on 21-9 1970 and 31-8-1970 respectively. It further appears from the petition that some time in May 1973 respondent No 6 Rameshwar Dayal was appointed as Head Clerk and respondent No. 7 Rameshwar Paswan was appointed in May, 1974. The petitioner challenge the aforesaid appointments of respondents 3 to 7 and averred in the writ petition that supersession by respondents 3 to 7 of the petitioner has been made illegally though the petitioner was promoted to the Upper Division much earlier and was also confirmed earlier than respondents 3 to 7 and that he has been shown in the seniority list much above those of respondents 3 to 7. The petitioner has alleged that when respondent No. 6 was appointed as Head Clerk in May, 1973 the petitioner challenged the said appointment by filing of a writ petition before this Court which was numbered as C. W. J. C 897 of 1973 but the same was withdrawn and the ground for withdrawal that has been alleged in the writ petition is that supersession of the petitioner as was disclosed by the Standing Counsel for Union of India to be a temporary arrangement. The petitioner has made annexures some of the Government orders as annexures 2 to 6. According to the petitioner the Government orders contained in annexures 2 to 6 show that reservation in selection post could not be made for scheduled caste and scheduled tribe and those posts ought to have been filled up on the basis of the seniority subject to the fitness Reliance has been placed on annexure 5 stating that the said annexure discloses that ' there will be no reservation in appointments made by promotion on the basis of seniority subject to fitness". According to the petitioner the aforesaid annexures disclose that reservation of post for the purpose scheduled caste and scheduled tribe do not apply to the promotion by selection. It may be stated here that it is not disputed that the post of Head Clerk is a selection post Class III. The petitioner by making the aforesaid averments has filed the present writ for the reliefs mentioned above.

(3.) A supplementary affidavit has been filed by the petitioner stating therein that the respondents have no authority in law to reserve more than 121/2% ana 5% posts of Head Clerk in the Collectorate of Central Excise, Patna for Scheduled Castes/Scheduled Tribes prior to March, 1973. It has been further averred therein that in 1969 out of five posts one post was reserved for scheduled caste candidate which was more than 16%. Similarly in 1970 out of the six posts one post was filled up by a Scheduled caste candidate and another by scheduled tribe and thus the percentage became more than 33 per cent. It is further stated that in 1970 out of the five posts of Head Clerk one post had been filled up by a scheduled caste and thus the percentage became more than 20% by way of reservation which was illegal. It has been shown further that in 1974 out of the three posts one post of Head Clerk was filled up by a scheduled caste candidate and thus the percentage became more than 33% though the Ministry of Home Affairs had issued instruction for reservation only to the extent of 15%.