Sunday, November 13, 2011

Bombay High Court decision on Writ petition on own-merit


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wp.8986.2011
vss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8986 OF 2011
Union of India & Ors. .. Petitioners
V/s.
All India Income Tax SC/ST Employees
Welfare Federation & Ors. .. Respondents
Mr.Om Prakash Jha with H.V. Kode I/b The Law Point for the
Petitioners
Mr.Rahul Walia for the Respondent No.1
CORAM: B.H. MARLAPALLE &
SMT.NISHITA MHATRE, JJ.
DATED: NOVEMBER 8, 2011
P.C.:
1. We have heard the learned Counsel for the petitioners and the
petitioners’ challenge to the order passed by the Central Administrative
Tribunal on 3.8.2011 allowing the Original Application No.76 of 2011, in
our considered opinion, has no substance.
2. In the first round in Original Application Nos.825 of 2010 and
762 of 2010, the present respondents had approached the Tribunal
seeking directions to implement the DoPT O.M. dated 10.8.2010 so as
to redraw the seniority of the petitioners who were otherwise belonging
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wp.8986.2011
to the reserved category but came to be selected on the basis of merit
cum seniority. By a common order dated 5.1.2011, the Original
Applications were allowed. However, the present petitioners thereafter
claimed that the O.M. dated 10.8.2010 would be applicable only to nonselection
posts. Accordingly by an order dated 24.1.2011, the claim
made by the original applicant was turned down. This order dated
24.1.2011 was the subject matter of challenge in O.A. No.76 of 2010.
3. In the case of Ms.K.Manorama vs. Union of India & Ors., 2010
(10) SCALE 304, the Supreme Court in para 14 held, “even otherwise
the principle that when a member belonging to a scheduled caste gets
selected in the open competition filed on the basis of his own merit, he
will not be counted against the quota reserved for scheduled caste but
will be treated as open candidate, will apply only in regard to
recruitment by open competition and not to the promotions effected on
the basis of seniority-cum-suitability”.
4. By following the law laid down by the Supreme Court in the
case of Ms.K. Manorama (supra), the O.M. dated 10.8.2010 was issued
and clause 3 of the said O.M. stated as under:
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wp.8986.2011
“the matter has been examined in the light of the above referred
judgements it has been decided to withdraw the O.M.
No.36028/17/2001-Estt. (Res.) dated 31.1.2005 referred to
above. It is clarified that SC/ST candidates appointed by
promotion on their own merit and seniority and not owing to
reservation or relaxation of qualifications will be adjusted against
unreserved points of reservation roster, irrespective of the fact
whether the promotion is made by selection method or nonselection
method. These orders will take effect from 2.7.1997, the
date on which post based reserved was introduced”.
5. By its earlier common judgement dated 5.1.2011, the Tribunal
had directed to comply with the O.M. dated 10.8.2010. In the second
round, the Tribunal considered the law laid down by the Supreme Court
in the case of R.K. Sabharwal & Ors. V/s. State of Rajasthan & Ors.,
1995 2 SCC 745; Suraj Bhan Meena v/s. State of Rajasthan & Ors.,
2001 (1) SCC (L&S) 1; M.Nagaraj vs. Union of India, (2006) 8 SCC
212. It held that the decision in Surajbhan Meena‘s case (supra) was
clearly distinguishable and was of no help to the case of the
interveners/respondents. The view taken by the Tribunal in reiterating
to implement the O.M. dated 10.8.2010 does not call for any
interference. The learned Counsel also submitted that the Division
Bench of Punjab & Haryana High Court by its judgment dated
15.7.2011 in Lachhmi Narain Gupta & ors. V/s. Jarnai Singh & Ors.,
CWP No.13218 of 2009 has set aside the O.M. dated 10.8.2010. The
learned Counsel for the original applicant stated that the said decision
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is a subject matter of challenge in a Special Leave Petition before the
Supreme Court. Be that as it may, in our opinion, the view taken by the
Central Administrative Tribunal in the impugned order dated 3.8.2011
does not suffer from any errors apparent on the face of the record and,
therefore, this petition must fail at the threshold.
6. The petition is therefore rejected summarily.
(SMT.NISHITA MHATRE, J.) (B.H. MARLAPALLE, J

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