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Reservation of SC/ST in promotion.

(Querist) 26 November 2015 This query is : Resolved 
Sir,
I belongs to SC category and working as Gr.II which is Group B non Gazetted post in the Central Govt.. In my department there is 142 post of Gr. I, which is to be filled 100% by promotion. In which 21 posts are reserved for SC category and 14 SCs were promoted and 7 vacant backlog posts are there.
Now the department has restructured the cadre and the post of Gr.I increased to (142+283) 425 posts. Recently the department has promoted 167 incumbents without maintaing any reservation roster and no SC incumbent has been promoted in that list. But in my view, now 49 posts be reserved for SCSs incumbents.
I requested my department to maintain the roster for SCSs & promote me against the post identified for SCs as per reservation roster. But my department rejected my request by commented that in the recruitment rules the post is filled by 'selection' not by non-selection so the reservation point could not granted.

Sir, please guide me is it right?
Sudhir Kumar, Advocate (Expert) 27 November 2015
apparently reply of deptt does not appear to be sound.

a comprehensive view can be taken on perusal of records.
Rajendra K Goyal (Expert) 27 November 2015
All related documents need to be referred, consult local service matter consultant.
P. Venu (Expert) 27 November 2015
Please obtain the complete information under RTI and if you have been duly considered promotion or unfairly denied promotion, file an statutory Appeal under Rule 23 of the CCS(CCA) Rules.
Sahil (Querist) 27 November 2015
Thanks sir.
Sudhir Kumar, Advocate (Expert) 28 November 2015
agreed with Mr P Venu though some persons may find his advise out of of place.

Rule 23(iv)makes any decision appealable where some rule is misapplied which is detrimental to Pay and Pension.
P. Venu (Expert) 28 November 2015
Thanks, Mr. Sudhir Kumar.
Guest (Expert) 28 November 2015
Dear Sudhir,

If the case is put on the wrong track from the very beginning, the hope of winning gets dashed at all stages, as the case starts taking wrong directions from one to another leading to complete derailment of the case.

To be frank, notwithstanding with the reply of Shri Venu, I really find your reply out of place, where you added with reference to the query, "Rule 23(iv)makes any decision appealable where some rule is misapplied which is detrimental to Pay and Pension."

Rule 23 neither deals with the appeals for reservation nor non-promotion, unless that is not regulated according to the rules (RRs or reservation policy). So, in the present scenario, his case cannot prima facie be linked with Rule 23 of the CCS (CCA) Rules, as per the spirit of the query.

So, you may probably like to review your reply, as the querist has simply asked whether the decision is right as per reservation rules where his department has rejected his request on the contention that reservation cannot be granted in recruitment made by 'selection' as per RRs. So, in that case only RRs are required to be examined to see if there is any defect in the RRs, as against the reservation policy or why only selection from Group B to Group A, with specific reference to the mature of duties and responsibilities of the posts in Group A category.

However, I don't have any objection, if the querist feels that your advice can serve his interest.


Sudhir Kumar, Advocate (Expert) 28 November 2015
the applicant feels that reservation policy has nto been correctly applied in his case.


Rule 23(iv) reads as

23. Orders against which appeal lies

Subject to the provisions of rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely:-



(iv) an order which-

(a) denies or varies to his disadvantage his pay, allowances, pension or other conditions of service as regulated by rules or by agreement; or

(b) interprets to his disadvantage the provisions of any such rule or agreement;
Guest (Expert) 28 November 2015
Dear Sudhir,

In the query of Mr. Sahil, I am unable to find any mention that "the applicant feels that reservation policy has not been correctly applied in his case." Rather, that reveals that the querist has asked for guidance whether the reply of the department is right or not that the policy does not apply on selection posts. His query states, "Sir, please GUIDE ME IS IT RIGHT?"

However, if the order on promotion interprets to his disadvantage the provisions of any such rule or agreement, that still would need reference to the RRs of Group A posts, if order would have been in violation of rules of recruitment. So, the first step in his case is to refer the provisions of RRs and find whether the recruitment is to be made on selection basis as per the RRs. As of second step, he should have to refer to the reservation policy about selection posts and if the RR's violate the policy, he can challenge only the provisions of RRs, not the order of promotion. Still further, if the RRs are not got modified with retrospective effect, the status of order of promotion would not change.

However, if he wants to challenge the order of promotion directly without touching the RRs, I have already mentioned, "I don't have any objection, if the querist feels that your advice invoking Rule 23 can serve his interest in the present scenario.
Sudhir Kumar, Advocate (Expert) 28 November 2015
the applicant is agreive of decisin of the deptt as he said

"I requested my department to maintain the roster for SCSs & promote me against the post identified for SCs as per reservation roster. But my department rejected my request by commented that in the recruitment rules the post is filled by 'selection' not by non-selection so the reservation point could not granted."


He is (rightly /wrongly ) feeling that correct roster is not being maintained.
Guest (Expert) 28 November 2015
Dear Sudhir,

Your quotation that the department rejected his request by commenting that in recruitment rules "the post is filled by 'selection' not by non-selection so the reservation point could not granted," itself is the answer to your unwarranted presumption and proves that he wanted to ask about the correctness of the reply of the department, not the roster. Even the title of the query is about promotion, not roster.

So, as regards your observation, "He is (rightly /wrongly ) feeling that correct roster is not being maintained," logically, presumption on our part has no relevance, whether he rightly or wrongly felt about roster being maintained or not.

Even if he has rightly felt that the roster is not being maintained, still his representation can be justified about maintenance of roaster, not on promotion order that did not include his name till the roster is maintained for the purpose of selection to the post, that too with retrospective effect covering the date of order of promotion.

But, if he felt wrongly that correct roster is not being maintained, advice to make appeal in terms of Rule 23 is never called for, as suggested by you.
Sudhir Kumar, Advocate (Expert) 29 November 2015
let the querist react.
Guest (Expert) 29 November 2015
That you could have waited or asked for before presuming that "the applicant feels that reservation policy has not been correctly applied in his case," as against my observation.
Dr J C Vashista (Expert) 29 November 2015
Consult a local prudent lawyer practicing in service matters, you did not reply to the questions raised by the experts hereinabove, hence no opinion can be formed and nothing can be advised. However, in the given circumstances the experts have very well explained the legal preposition and advised adequatly, I agree and appreciate.
Sahil (Querist) 29 November 2015
Sir,
Yes, i think that the reservation policy is not correctly applied in my case. Because you see the deptt. is saying that in the column number '5' of the recruitment rules marked as "Selection". In this case the office is not considered zone of consideration or extended zone of consideration. It can be seen that the deptt. has promoted 167 incumbents but does not applied the roster and incumbents belongs to SC category promoted only on their merit and seniority not on any roster point. I think this is clear cut violation of rules. Sir, actually i have doubt that is there any judgement from Hon' Supreme Court against the reservation in promotion.

Regards:
Sahil
P. Venu (Expert) 29 November 2015
An appeal under Rule 23(iv) lies, as suggested, in the circumstances stated.

Decisions of the Supreme Court are not magic wands. If the Appeal made, is not judiciously considered, judicial review needs to sought through the CAT.
Sahil (Querist) 29 November 2015
Thank a lot sir.
Sudhir Kumar, Advocate (Expert) 29 November 2015
for selection method the persons from extended zone cannot be considered for selection mode. If some SC/ST is coming within normal zone he will be considered for selection mode and if selected then will be placed senior to general candidates who enter the pane by seniority-cum-fitness.

If you feel you were entitled to reservation and have been denied so then the appeal under rule 23(iv) shall lie to the authority higher than your appointing authority and any decision other than under signature of the said authority shall not be valid.
Guest (Expert) 29 November 2015
Mr. Sahil,

By the way, what will you do with the Supreme Court judgment, even if that is provided to you? Are you a lawyer or law student?
Sahil (Querist) 29 November 2015
No sir, i am not lawyer or law student. I am a Central Govt. employee. I mean to say that whether Hon' Supreme Court quashed the provision of reservation in promotion. As some of my friend tells me.
Guest (Expert) 29 November 2015
Your reply is not convincing. Only a law student can ask for a Supreme Court judgment for the purpose of solving his academic query, not a layman central Government employee, who cannot use that in anyway.
Sudhir Kumar, Advocate (Expert) 29 November 2015
whether you are aggrieved of not getting reservation to you or you are aggrieved of giving reservation to others.
Sahil (Querist) 29 November 2015
Aggrieved my self. I am working as Statistical Investigator Gr. II in the Registrar General of India. The whole Story i have already explained as above. I asked the judgement of Hon S.Court because i have some doubt as i i have read some news in newspaper regarding cancellation of reservation in promotion.
Guest (Expert) 30 November 2015
Even your present reply reveals as if you have doubt about the trusworthiness of the experts at the LCI but desired that they should serve you the SC judgment on a platter to get yourself personally satisfied, as if you have come to a restaurant for your feeding.

When you did not have any trust on us, why you preferred to waste time of the community members and silently continued watching discussion, as if for your enjoyment? You could well have made research for the SC judgment through google or through the site of the SC, as you are an investigator, yourself. Even otherwise also, you could have investigated about the fact from the newspaper office, which published the news regarding cancellation of reservation in promotion.

Now it will be better for you to investigate the matter by contacting the newpaper office concerned or buy the book on reservations from some law book depot to go through the latest version of the provisions of the reservation rules.
Sahil (Querist) 30 November 2015
Dear Dhingra Sir,
I am sorry if i hearted any member of LCI and have full faith on all worthy members. Again i am sorry.
Guest (Expert) 30 November 2015
Mr. Sahil,

If you are neither a lawyer nor a law student, Mr. Venu has rightly said that Decisions of the Supreme Court are not magic wands.

In fact, if you really have any such problem, as stated by you, yours is not a legal problem. That is purely an administrative problem, to find answer to which, you have the need to refer to the Recruitment Rules for the post with specific reference to the Brochure on reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in services along with order/ instructions issued by the Government of India from time to time.
Sahil (Querist) 30 November 2015
Ok, thanks a lot for your kind ci-operation, please.
K.S.Srinivas (Expert) 04 December 2015
Consult a lawyer who is dealing with service matters of government employees.


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