Dismissed

Sunil Kumar Paswan And Ors. v. The Union Of India The General Manager South Eastern Railways And Ors.

Jharkhand HC20 Mar 2023WPC/7564/2017

Case brief

AI extract

What is this about?

The High Court dismissed petitions challenging a C.A.T. order requiring reversion of railway employees promoted via reservation after C.A.T. found such promotion illegal under Nagaraj. The Court held the policy violated prevailing constitutional requirements. The matter was remanded to undertake necessary exercises before reversion.

What did the court decide?

Petitions dismissed; directions to Tribunal to comply with law before reversion.

Sunil Kumar Paswan And Ors. Vs The Union… — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 7564 of 2017

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Sunil Kumar Paswan, S/o- Sri Ram Naresh Ram, R/oVillage- Damawa, PO- Pipra, PS- Hariharganj via. Chhattarpur, District- Palamau (Jharkhand), at present R/o- Chief Crew Controller Office, Muri, PO- Muri, PS- Silli (Ranchi), Jharkhand. 2. Deepak Kumar Paswan, S/o- Sri Dhanraj Paswan, R/oVillage- Kheshmi, PO & PS- Gomoh, District- Dhanbad, Jharkhand, at present R/o- Chief Crew Controller Office, Muri, PO-Muri, PS- Silli (Ranchi), Jharkhand.

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Bishundeo Paswan, S/o- Late Baleshwar Paswan, R/oVillage- Nadi, PO- Murari, PS-Karpi, District- Arwal, Pin Code804419, Bihar, at present R/o Chief Crew Controller Office, Muri, PO- Muri, PS- Silli (Ranchi), Jharkhand.

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Sunil Kumar, S/o Sri Bhola Ram. R/o- Village- Palhe Khurd, PO- Bhojpur, PS- Nagar Untari, District Garhwa, Jharkhand, at present R/o Chief Crew Controller Office, Muri, PO- Muri, PSSilli (Ranchi), Jharkhand.

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Prem Kumar Gautam, S/o-Sri Madhulal Rajak, R/o Village+ PO- Pariyari, PS- Kinjar, District- Arwal, Bihar, at present R/o Chief Crew Controller Office. Muri, PO- Muri, PS- Silli (Ranchi), Jharkhand.

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Sunil Kumar Ram, S/o Sri Kuleshwar Ram, R/o- VillageRajhara Kothi, PO- Rajhara Colliery, PS-Nawa Bazar, DistrictPalamau, Jharkhand, at present R/o-Chief Crew Controller Office, Muri, PO- Muri, PS- Silli (Ranchi), Jharkhand.

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Aman Kumar, S/o-Sri Devendra Prasad, R/o House No. J.K. S/F- 39, Old Jakkanpur, PO GPO, PS- Jakkanpur, DistrictPatna, at present R/o Chief Crew Controller Office, Muri, POMuri, PS-Silli (Ranchi). Jharkhand.

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Ram Nath Ram, S/o- Late Jatan Mochi, R/o Village- Malgo, PO- Adar, PS-Ghaghara, District- Gumla, Pin Code-835331, Jharkhand, at present R/o Chief Crew Controller Office, Muri, PO- Muri, PS-Silli (Ranchi), Jharkhand

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Versus

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The Union of India through the General Manager, South Eastern Railways, Garden- Reach, Kolkata-43. 2. Chief Personnel Officer, South Eastern Railways, GardenReach, Kolkata-43.

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Divisional Railway Manager, South Eastern Railway, DRM Building, PO- Hatia, Ranchi-834003

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Senior Divisional Personnel Officer, South Eastern Railway, PO- Hatia, Ranchi- 834003.

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Pravin Kumar, S/o- Shri Mohan Prasad, R/o- Qr. No. DS101-F, PO & PS- Chota Muri, District-Ranchi- 834003.

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Sheo Shankar Kumar Singh, S/o- Sri Saryu Prasad, R/o-

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Patel Nagar, Road No. 17, Hatia, Ranchi- 834003.

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Sateyendra Kumar Singh, S/o- Prayug Singh, R/o- DS-II, 77 (B), Railway Colony, Hatia Ranchi- 834003.

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Bijoy Kumar, S/o- Hari Pada Kumar, R/o- Latma Road, Prem Nagar, Road-06, Hatia, District-Ranchi-834003

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Santosh Kumar, C/o- Shri Mahendra Prasad, R/o- Qr. No. B-1508-II, Side-4, PO & PS-Dhurwa, Distrcit- Ranchi.

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Raju Prasad Gupta, C/o- Dhanu Prajapati, R/o Solanki, Road No. 1, H.No. 8, Chatrgupt Colonly, Hatia, Ranchi-834003. 11. Binod Kumar Mahto, S/o- Sri Chunindra Mahto, R/oVillage- Sukurhutoo, PO & PS-Kanke, Ranchi-834006. 12.Om Prakash Mahto, S/o- Sri Shyam Mahto, R/o- At Birsa Nagar Near Mourya Hotel, Itki Road, PO-Hehal, Sukhdeonagar, Ranchi-834005.

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D.K. Vishwakarma, S/o- Sri Ramkeshwar Vishwakarma, R/o- At DS-II, 52-B, Railway Colony, Hatia, Ranchi-834003. 14. Abhishek Kumar, S/o- Sri Indradeo Prasad, R/o- Latma Road, Vikash Nagar, Road No. 2, Hatia, Ranchi-834003, 15.Suresh Kumar Sharma, S/o- Sri Brahmeshwar Sharma, R/o- Dinkar Nagar, Hatia, Ranchi-834003.

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Kunj Kumar Garai, S/o (not in the Impugned Order).R/oQr. No. DS-II, 38/C, Railway Colony, Hatia, Ranchi-834003 17. Mithilesh Kumar, S/o (not in the Impugned Order).R/o- Qr. No. DS-II, 54-A, Railway Colony, Hatia, Ranchi-834003.

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Krishna Deo Kumar, S/o- (not in the Impugned Order),R/oQr. No. DS-II, 71/A, Railway Colony, Hatia, Ranchi-834003. 19. Sanjay Kumar-II, S/o- Sri Nandji Sah, R/o- Qr. No. DS-11, 90/C, Railway Colony, Hatia,Ranchi-834003.

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Krishna Murari, S/o (not in the Impugned Order), R/o Qr. No. B/1730/II, Sude-4, Sector-II, HEC Colony, Dhurwa, Ranchi-834004.

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21.Niranjan Kumar, S/o- Sri Nand Kishore Prasad, R/o- Qr. No. DS-II, 52-A, Railway Colony, Hatia, Ranchi-834003. 22. Mukesh Kumar, S/o- Motilal, C/o- R.C. Sharma, R/o- Gitil Piri, Road No. 3, Railways Colony, Hatia, Ranchi-834003. 23. Md. Dilawar Ansari, S/o- Md. Samim Ansari, R/o Qr. No. CD/43-II, Birsad Chowk, Ranchi-834004.

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24.Shashi Kant Singh, S/o- Vishwa Nath Singh, R/o at Vikash Nagar, Latma Road, Singhmore, Hatia, Ranchi-834003. 25. Devendra Nath Mahto, S/o- Sri B.C. Mahto, R/o- Amravati Colony, PO- Krishnapuri, PS-Chutia, Ranchi-834001.

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Ashok Kumar Sharma, S/o- Maharaj Mistry, R/o H.No. 283, Road No. 8A, Vikash Nagar, Singh More, Ranchi-834003. 27.Shiv Shankar Kumar, S/o-Sri Munshi Prasad, R/o- Qr No. DS-I/6-C, Railway Colony. Hatia, Ranchi-834003.

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Pramod Kumar, S/o-I.D. Prasad, R/o Basko Nagar, Nepali Colony, Road No. 3, Sesag, Hatia, Ranchi-834003.

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Ajay Ranjan, S/o- Sri Ramchandra Prasad, R/o- Qr No. DSII/116/C, Railway Colony, Hatia, Ranchi- 834003.

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H.K. Bharati, S/o Sri Rampravesh Prasad Yadav, R/o- Qr No. DS-I/21/A, Railway Colony, Hatia, Ranchi-834003. 31. Akhilesh Kumar, S/o- Sri Bipin Prasad, R/o- Qr No DSI/59/B, Railway Colony, Hatia, Ranchi-834003.

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Chitranjan Kant, C/o- J.S. Bhatiya, R/o Bhatiya Niwas, Bikash Nagar, Road No. 4, Singhmore, Hatia, Ranchi- 834003. 33. Divy Dileep, S/o- W.P. Singh, R/o- Qr No. DS-II/36-B, B- Type, Railway Colony, Hatia, Ranchi-834003.

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Nitish Kumar, S/o- Arjun Prasad, R/o- Qr No. DS-II/90-A, B-Type, Railway Colony, Hatia, Ranchi-834003.

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35.T. Pramanik, S/o- Sri Mihir Chandra Pramanik, R/o Kalyanpur, Road No. 2, Singhmore, Hatia, Ranchi-834003. 36. Amit Kumar Singh, S/o- Sri Ishwar Singh, R/o- Qr No. DSII/62-D, B-Type, Railway Colony, Hatia, Ranchi-834003.

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Jaiprakash Kumar, S/o- Birendra Prasad, R/o- Railway Colony, DS/128/G, Muri.

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Sanjay Kumar, S/o- Mahendra Roy, R/o- Qr No. DS-81/A, Railway Colony, Muri. 39, Ravindra Singh, S/o- Karmair Singh, R/o- Qr No. E/11-C, Railway Colony, Chota Muri

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Sarvesh Chandra Prabhakar, S/o- (not in the Impugned Order). R/o Qr No. 101/D. Railway Colony, Muri.

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Ranjan Kumar, S/o- (not in the Impugned Order), R/o- Qr. No. DS/119/G, Railway Colony, Muri, District-Ranchi.

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42.Ajay Kumar, S/o- Sita Ram Singh, R/o Qr. No. DS/119/D, Railway Colony, Muri, Ranchi.

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… … Respondents

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Navin Barla, S/o- (not in the Impugned Order),

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Sakhi Oraon, S/o- (not in the Impugned Order),

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Ravi Oraon, S/o- (not in the Impugned Order),

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Chulwa Oraon, S/o- (not in the Impugned Order),

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Bimal Kumar Bhagat, S/o- (not in the Impugned Order),

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Johnso Horo, S/o- (not in the Impugned Order),

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Pradeep Tirkey, S/o- (not in the Impugned Order).

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Sl. No. 43 to 49 at Present Posted at Muri under South Eastern Railway, Ranchi Division, Ranchi-834008.

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… … Performa Respondents With

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W.P.(S) No. 5956 of 2016

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1. Union of India through the General Manager, South Eastern Railway, Garden Reach, P.O.- Garden Reach, P.S.-West Port, District-Kolkata-43 (West Bengal);

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2. Chief Personnel Officer, South Eastern Railway, Garden Reach, P.O.- Garden Reach, P.S.-West Port, District- Kolkata43 (West Bengal) .

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Divisional Railway Manager, South Eastern Railway, DRM

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Building, P.O.-Hatia, P.S.-Jagannathpur, District- Ranchi834003 (Jharkhand);

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Senior Divisional Personnel Officer, South Eastern Railway, P.O.-Hatia, P.S.-Jagannathpur, District-Ranchi834003 (Jharkhand).

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… … Petitioners

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Versus

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1. Rajnish Kumar, son of Sri R.N. Prasad Singh, C/o A. Ganguli, resident of House No. 15, Road No. 1, Birsa Nagar, P.O.-Hatia, P.S.-Jagannathpur, District-Ranchi834003 (Jharkhand);

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2. Manoj Kumar, son of Sri Sadhu Charan Sahu, resident of Kathal More, Behind Cancer Hospital, P.O.-Gutwa, P.S.Jagannathpur, District-Ranchi (Jharkhand);

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3. Rajesh Chandra Verma, son of Sri Saryu Prasad, resident of New Market, Patel Colony, P.O. & P.S.- Dhurwa, DistrictRanchi (Jharkhand)

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4. Ranjeet Kumar, son of Sri Ghanshyam Prasad Singh, resident of Q.No.DS.II, 68A, Hatia Railway Colony, P.O.- Hatia, P.S.-Jagannathpur, District-Ranchi (Jharkhand).

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Contesting Respondents

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5. S.K. Choudhary, son of B.N. Choudhary, resident of Jagdish Kamtaul, P.O.-Anant, P.S.-Khurhani, District- Muzaffarpur (Bihar);

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6. Lalmani Kumar, son of Kameshwar Ram, resident of VillageSapani, P.O.-Silidag, P.S.-Silidag, District-Garhwa (Jharkhand); 7. A.K. Rajak, son of Kailash Prasad, working as Loco Pilot, South Eastern Railway, Ranchi Division, P.O.-Hatia, P.S.Jagannathpur, District-Ranchi;

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8. D.K. Das, son of Rajendra Ravi Das, resident of VillagePuraini, P.O.-Kuhila via Rajhat, P.S.-Nawada, District- Nawada (Bihar);

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9. Shankar Ram, son of Sri Bhikar Ram, working as Loco Pilot, South Eastern Railway, Ranchi Division, P.O.- Hatia, P.S.Jagannathpur, District-Ranchi

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10. C.K. Choudhary, son of Sri Chiritra Choudhary, resident of Village-Onda, P.O.-Onda, P.S.-Sare, District- Nalanda (Bihar); 11. K. Swansi, son of Dharu Swansi, resident of VillageMundru Toli, P.O. & P.S.-Khunti (Jharkhand)

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… … Proforma Respondents With

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W.P.(S) No. 728 of 2018

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The Union of India through Rajendra Kumar Agrawal son late D. N. Agrawal aged about 47 years Senior Divisional Personnel Officer, South Eastern Railway, P.O. Hatia, P.S.- Jaganathpur

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district- Ranchi-834003. … … Petitioner

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Versus

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1. Pravin Kumar, aged 36 years, Son of Mohan Prasad, resident of Qr. No. DS-101-F, P.O. and P.S. Chota Muri, District Ranchi -834003.

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2. Sheo Shankar Kumar Singh, son of Sri Saryu Prasad, resident of Patel Nagar, Road No. 17, Hatia, P.O.- Hatia, P.S.Jaganathpur, district- Ranchi-834003.

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3. Satyendra Kumar Singh, son of Prayag Singh, resident of DS-II, 77 (B), Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- Ranchi -834003.

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4. Bijoy Kumar, son of Hari Pada Kumar, resident of Latma Road, Prem Nagar, Road No.06, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- District Ranchi-834003.

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5. Santosh Kumar, C/o Shri Mahendra Prasad, resident of Qr. No. B-1508-II, Side -4, P.O. and P.S. Dhurwa, District Ranchi. 6. Raju Prasad Gupa, C/o Dhanu Prajapati, resident of Solanki, Road No.1, H.N.08, Chitragupta Colony, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district- Ranchi-834003 7. Binod Kumar Mahto, son of Sri Chunindra Mahto, resident of village Sukurhutoo, P.O. and P.S. Kanke, Ranchi -834006. 8. Om Prakash Mahto, son of Sri Shyam Mahto, resident of At Birsa Nagar, Near Mourya Hotel, Itki Road, P.O. Hehal, P.S.Sukhdeonagar,DISTRICT-Ranchi-834005.

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9. D.K. Vishwakarma, son of Sri Ramkeshwar Vishwakarma, resident of At DS-II, 52-B Railway Colony, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district-Ranchi-834003. 10. Abhishek Kumar, son of Sri Indradeo Prasad, resident of Latma Road, Vikash Nagar, Road No. 02, Hatia, P.O.- Hatia, P.S.- Jaganathpur, district- Ranchi-834003.

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11. Suresh Kumar Sharma, son of Sri Brahmeshwar Sharma, C/O Pramod Kumar Singh, Dinkar Nagar, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district- Ranchi-834003. 12. Kunj Kumar Garai, resident of Qr. No. DS-II, 38/C, Railway Colony, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district- Ranchi834003.

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13. Mithilesh Kumar resident of Qr. No. DS-II, 54-A, Railway Colony, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district- Ranchi834003.

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14. Krishna Deo Kumar, resident of Qr. No. DS-II, 74/A, Railway Colony, Hatia, p.o.- Hatia, P.S.- Jaganathpur, districtRanchi-834003.

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15. Sanjay Kumar-II, son of Nandji Sah, resident of Qr. No. DSII, 90/C, Railway Colony, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district- Ranchi-834003.

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16. Krishna Murari, resident of Qr. No. B/1730/II, Sude-4, Sector-II, H.E.C. Colony, Dhurwa, p.o.-Dhurwa, P.S.Jaganathpur, district- Ranchi-834003.

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17. Niranjan Kumar, son of Nand Kishore Prasad, resident of Qr. No. DS-II, 52-A, Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- Ranchi-834003.

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18. Mukesh Kumar, son of Motilal, C/o R.C. Sharma, resident of Gitil Piri, Road No.3, Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- Ranchi-834003

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19. Md. Dilawar Ansari, Son of Md. Samim Ansari, C/O U. Akhtar, resident of Qr. No. CD/436-11, Birsa Chowk, P.O. & P.S. Jagannathpur, Ranchi-834004.

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20. Shashi Kant Singh, son of Vishwa Nath Singh, resident of At Vikash Nagar, Latma Road, Singhmore, Hatia, p.o.- Hatia, P.S.- Jaganathpur, district- Ranchi-834003. 21. Devendra Nath Mahto, son of Sri B.C. Mahto, resident of Amravati Colony, P.O. Krishnapuri, P.S. Chutia, District Ranchi-834001.

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22. Ashok Kumar Shmara, son of Maharaj Mistry, resident of House No. 283, Road No.8A, Vikash Nagar, Singh More, p.o.Hatia, P.S.-Jaganathpur, district- Ranchi-834003.

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23. Shiv Shankar Kumar, Son of Sri Munshi Prasad, resident of Qr. No. DS-1/6-C, Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- Ranchi-834003.

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24. Pramod Kumar, son of I.D. Prasad, resident of Basko Nagar, Nepali Colony, Road No.03, Sesag, Hatia, p.o. Hatia, P.S.Jaganathpur, district- Ranchi-834001.

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25. Ajay Ranjan, son of Sri Ramchandra Prasad, resident of Qr. No. DS-II/116/C, Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district Ranchi-843003.

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26. H.K. Bharit, Son of Sri Rampravesh Prasad Yadav, resident of DS-I/21/A, Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- Ranchi-843003. 27. Akhilesh Kumar, son of Sri Bipin Prasad, resident of Qr. No. DS-I/59/B, Railway Colony, Hatia, p.o.Hatia, P.S.Jaganathpur, district- Ranchi-843003 28. Chitranjan Kant, C/o J.S. Bhatiya, resident of Bhatiya Niwash, Bikash Nagar, Road No. 4, Singh More, Hatia, p.o. Hatia, P.S.- Jaganathpur, district- Ranchi-834003.

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29. Divy Dileep, son W.P. Singh, resident of Qr. No. DS-II/90-A, B-Type, Railway Colony, Hatia, p.o. Hatia, P.S.- Jaganathpur, district-Ranchi-843003.

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30. Nitish Kumar, Son of Arjun Prasad, resident of Qr. No. DSII/90/A, B Type, Railway Colony, Hatia, p.o.- Hatia, P.S.Jaganathpur, district- Ranchi-843003.

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31. T. Pramanik, son of Sri Mihir Chandra Pramanik, resident of Kalyanpur, Road No.2, Singh More, Hatia, P.0.- Hatia, P.S.Jaganathpur, district- Ranchi-834003.

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32. Amit Kumar Singh, son of Sri Ishwar Singh, resident of Qr. DS-II/62-D, B-Type, Railway Colony, Hatia, P.O.- Hatia, P.S.Jaganathpur, district- Ranchi-834003

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33. Jaiprakash Kumar, son of Birendra Prasad, resident of Railway Colony-DS/128/G, Muri, P.O. & P.S. Muri, District Ranchi.

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34. Sanjay Kumar, son of Mahendra Roy, resident of Qr. DS81/A, Railway Colony, Muri, P.O. and P.S- Muri. DistrictRanchi.

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35. Arvind Kumar, son of V.K. Singh, resident of Qr. No. L- 21/C, Railway Colony, Muri, P.O. and P.S- Muri. DistrictRanchi.

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36. Ravindra Singh, son of Karmir Singh, resident of Qr. No. E/11-C, Railway Colony, Chota Muri, Muri, P.O. and P.S- Muri. District- Ranchi.

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37. Sarvesh Chandra Prabhakar, resident of Qr. No. 101/D, Railway Colony, Muri, P.O. and P.S- Muri. District- Ranchi.

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38. Ranjan Kumar, resident of Qr. No. DS/119/G, Railway Colony, Muri, P.O. and P.S- Muri, District Ranchi.

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39. Ajay Kumar, Son of Sita Ram Singh, resident of Qr. No. DS/119/D, Ranchi Colony, Muri, P.O. and P.S-Muri, districtRanchi.

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40. The General Manager, South Eastern Railway, Garden Reach, P.O. and P.S. Garden Reach, District - Kolkata-43.

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41. The chief Personnel officer, South Eastern Railway, Garden Reach, P.O. and P.S. - Garden Reach, District - Kolkata-43, Kolkata-43.

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42. The Divisional Railway Manager, South Eastern Railway, DRM Building, P.O. Hatia, P.S. Jaganathpur, district- Ranchi834003.

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43. Ram Nath Mochi, son of Sri Jatan Mochi, resident of village Malgo, P.O. Adar, P.S. ……. district Gumla.

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44. Deepak Kumar Paswan, son of Dhanraj Paswan, resident of village Kashmi, P.O, Gomo, P.S. Topchachi, district Dhanbad.

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45. Bisnudeo Paswan, son of late Baleshwar Paswan, resident of Nadi, P.O. Murari, P.S. Karpi, District Arwal (Jahanabad) (Bihar).

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46. Prem Kumar Gautam, son of Madhu Lal, resident of village and P.O. Paryari, P.S. Kingar, District Arwal (Jahanabad) (Bihar)

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47. Sunil Kumar, son of Bhola Ram, resident of village Palli Khurd, P.O. Bhojpur, P.S. Nagaruttari, District Garhwa.

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48. Aman Kumar, son of Devendra Prasad, resident of village Old Jakkanpur, P.O. GPO, Patna, P.S. Janagpuri, District Patna (Bihar).

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49. Sunil Kumar Ram, son of late Kuleshwar Ram, resident of village Rajhara Kotti, P.O. Rajhara, P.S. Rajhara, District Palamau.

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50. Sunil Kumar Paswan, son of Radhey Shyam Paswan, resident of village Bargaua, P.S. Sanbaruaraj, District Palamau. 51. Naveen Barla, son of late J.C. Barla, resident of Kadru Pull Toli, P.O. & P.S. Doranda, District Ranchi.

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52. Sakhi Oraon, son of late Banda Oraon, resident of Balrampur, P.O. & P.S. Nargopi, District Ranchi.

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53. Ravi Orson, son of Ashok Oraon, resident of village and PO Kumariya, PO Pithoriya, District Ranchi.

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54. Chulwa Oraon, son of Soma Oraon, resident of Mohalla Pipertoli, PO. Harmu, P.S. Argora, District Ranchi.

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55. Bimal Kumar Bhagat, son of Bhuneshwar Bhagat, resident of Margu Ambatoli PO. Murgu, P.S. Sisai, District Gumla.

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56 Johnso Horo, son of Prilka Horo, resident of village Gopapur, P.O. Mahagon P.S. Lapung, District Ranchi.

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57. Pradeep Tirkey, son of Mangra Tirkey, resident of village Pandra, P.O. Pali, P.S. Ratu, District Ranchi.

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… … Respondents

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CORAM :HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND

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¶131

For the Petitioners : Mr. R.N.Sahay, Sr. Advocate Mr. Yashvardhan, Advocate Mr. Saurabh Narayan, Advocate [in W.P.(S) No.7564/2017] Mr. Anil Kumar, Addl. S.G.I. Mr. Shiv Kumar Sharma, C.G.C. Mr. Vinod Kumar Sahu, C.G.C. Mr. Akash Deep, A.C. to C.G.C. Mr. Bikram Kumar Sah, A.C. to C.G.C. [in W.P.(S) No.5956/2016 & W.P.(S) No.728/2018] For the Resp. Railways : Mr. Anil Kumar, Addl. S.G.I. Mr. Vinod Kumar Sahu, C.G.C. For the Resp. Nos.1-4 : Mr. Anis Khan, Advocate [in WPS 5956/2016] For the Resp. Nos.43-46 : Dr. H.Waris, Advocate Ms. Reshma Kumari, Advocate [in WPS 7564/2017] For the Resp. Nos.6,9-11 : Mr. Onkarnath Tewary, Advocate [in WPS 5956/2016] For the pvt. Respondents : Md. Anisurzzama Khan, Advocate --------

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Order No.12/Dated 20^th March, 2023

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Per Sujit Narayan Prasad, J.

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All the writ petitions have been filed under Article 226 of the Constitution of India challenging the orders passed by learned Central Administrative Tribunal, Patna Bench, Patna, Circuit Bench at Ranchi dated 09.07.2016 in O.A. No.051/00002/2015 and order dated 30.08.2017 in O.A.

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No.051/00107/2016 whereby and whereunder the learned Tribunal has directed to revert the persons who have been given promotion on the basis of reservation.

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2. The brief facts of the case, as per the pleadings made in the writ petitions, which are required to be enumerated, read as under :-

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It is the case of the petitioners that the petitioners joined the service in the railways as Assistant Loco Pilot. They were promoted as Senior Assistant Loco Pilot/Loco Pilot (Shunter-II) and thereafter Loco Pilot (Goods).

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The writ petitioners, after having been granted accelerated promotion to the post of Senior Loco Pilot, the respondentsapplicants had questioned the order of promotion by filing original application before the learned Central Administrative Tribunal, Patna Bench, Patna by taking the ground that the accelerated promotion so granted in favour of the writ petitioners since has been granted without taking recourse of the law laid down by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others reported in (2006) 8 SCC 212 wherein the 85^th amendment although was approved but subject to the compliance of the conditions as stipulated under paragraph 123 i.e., the collection of quantifiable data regarding backwardness, inadequacy of representation and overall efficiency and, as

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such, the accelerated promotion granted in favour of the writ petitioners since was granted without observing the law laid down by the Constitution Bench of the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra), such promotion granted in favour of the writ petitioners cannot be said to be in accordance with law.

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The learned Tribunal, after considering the implication of the judgment laid down by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra),

¶143

has come to the conclusive finding by holding in the impugned orders that accelerated promotion so granted in favour of the writ petitioners who were respondents before the learned Tribunal, to be illegal and, as such, direction was passed to revert the persons who have been given promotion on the basis of reservation.

¶144

The respondents to the original application and the respondent Railway, being aggrieved with the orders passed by the learned Tribunal, have challenged the orders dated 09.07.2016 in O.A. No.051/00002/2015 and 30.08.2017 in O.A. No.051/00107/2016 by filing these writ petitions invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India on two fold grounds i.e., (i) there is a policy decision of the Railway which mandates for granting accelerated promotion (ii) even if the law laid down by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of

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India and Others (Supra) has not been followed but since the accelerated promotion has been granted in favour of the writ petitioners, even if any illegality has been committed, the writ petitioners cannot be allowed to suffer.

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3. Mr. R.N. Sahay, learned senior counsel appearing for the writ petitioners in W.P.(S) No.7564 of 2017 and Mr. Anil Kumar, learned Additional Solicitor General of India appearing for the writ petitioners (Railway) in W.P.(S) Nos.5956 of 2016 and W.P.(S) No.728 of 2018, have jointly submitted that since the constitution has been amended by virtue of 85^th amendment in pursuance thereto a provision has been inserted by way of Article 16(4A) wherein the word “consequential” has been inserted for the purpose of granting promotion on the basis of consequential seniority and, as such, if the respondent Railway has taken a decision to grant accelerated promotion in the light of the constitutional mandate as contained under Article 16(4A) of the Constitution of India, the same cannot be said to be unconstitutional.

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Mr. R.N. Sahay, learned senior counsel for the writ petitioners in W.P.(S) No.7564 of 2017, has submitted that even though the exercise which was required to be done by the Railway regarding collection of quantifiable data as has been laid down by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) and in absence thereof, if any policy decision has been made out for

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granting accelerated promotion to the members of the reserved category candidates, the beneficiary cannot be allowed to suffer for the wrong committed on the part of the Railway.

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4. While on the other hand, Dr. H. Waris, learned counsel appearing for the respondents-applicants, has submitted by referring to the judgment pronounced by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) by which the 85^th amendment has been approved subject to fulfilment of the conditions stipulated i.e., collection of quantifiable data regarding backwardness, inadequacy of representation and overall administrative efficiency in the public employment in addition to compliance with Article 335 of the Constitution of India but the Railway has not yet collected the quantifiable data as per the law laid down by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra), as stipulated in para 123 thereof and if in such circumstances, the accelerated promotion granted in favour of the writ petitioners if interfered with considering it not in consonance with the law laid down by the Constitution Bench of Hon'ble Apex Court, the order passed by the learned Tribunal cannot be said to suffer from an error and in that view of the matter, the order impugned requires no interference. 5. We have heard learned counsel for the parties and gone across the material available on record wherefrom it is evident

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that the writ petitioners and the contesting respondents are working in the Indian Railways in the cadre of Loco Pilot. The writ petitioners were given accelerated promotion to the post of Senior Loco Pilot which was question by the respondentsapplicants by filing original application before the learned Tribunal on the ground that the promotion has been given by giving go bye to the seniority of the respondents-applicants. While on the other hand, the ground has been taken by the writ petitioners-respondents by filing written statement before the learned Tribunal that the accelerated promotion has been granted in pursuance to the Railway Rules in force as prescribed under Estt. Sr. No.135/97 wherein the provision has been made to grant accelerated promotion as per the percentage prescribed in the roster register and hence the question of superseding the applicants does not arise.

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The learned Tribunal, after going through the pleadings of the respondents and on consideration of the decision of the Railway Board dated 30^th September, 2016 by which the accelerated promotion has been put on hold till the conclusion of S.L.P. and kept in abeyance the order dated 01.09.2010 as also by taking into consideration the law laid down by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra), has allowed the original application with a direction upon the respondents to revert the persons who have been given accelerated promotion in exercise of power

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conferred under Article 16(4A), however, with the liberty that such exercise can only be taken in compliance to the condition laid down by the Hon'ble Apex Court in the case of M.Nagaraj

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and Others v. Union of India and Others (Supra), i.e., if in the opinion of the Railway such class of persons are not adequately represented in the service and after following the other conditions stipulated in the case of M.Nagaraj and Others v. Union of India and Others (Supra), the said order is under challenge in these writ petitions.

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6. This Court, on the basis of the argument advanced on behalf of the parties, has gathered therefrom that the issue which required to be considered is as to whether the accelerated promotion can be granted in the light of the provision as contained under Article 16(4A) of the Constitution of India without compliance to the law laid down by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra).

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7. This Court, in order to answer the aforesaid issue, is required to refer certain factual aspect as also the judicial pronouncements.

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Prior to coming into effect of the provision of Article 16(4A) of the Constitution of India, there was a principle of catch up theory as was propounded by the Hon'ble Apex Court in the case of Union of India and Others v. Virpal Singh Chauhan and Others reported in (1995) 6 SCC 684 wherein the

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proposition has been laid down that if a Scheduled Caste/Tribe candidate is promoted either by applying the Rules of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, there is no occasion to examine the merit of such Schedule Caste/Tribe candidate vis-à-vis his seniors belonging to the general category, as such, it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him and thereby catch up theory has been propounded.

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The same view has been taken by the Hon'ble Apex Court in the case of Ajit Singh Januja and Others v. State of Punjab and Others reported in (1996) 2 SCC 715 , relevant is paragraph 16 which is quoted hereunder as:-

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“ 16. We respectfully concur with the view in Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684] , that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated “consequential seniority”. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall

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regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-à-vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.”

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The parliamentarians, in order to grant the consequential

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seniority in the promotion, have introduced a bill for amending the Constitution for insertion of Article 16(4A) which is known as the 85^th amendment. The contents of 85^th amendment reads hereunder as:-

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“In article 16 of the Constitution, in clause (4A), for the words "in matters of promotion to any class", the words "in matters of promotion, with consequential seniority, to any class" shall be substituted.”

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The issue has been raised regarding the constitutional validity of the 85^th amendment in the case of M.Nagaraj and Others v. Union of India and Others (Supra) on the basis of the law laid down by the Hon'ble Apex Court in the case of

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Indra Sawhney and Others v. Union of India and Others

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reported in 1992 Supp (3) SCC 217 wherein the ceiling limit of reservation has been decided not to exceed beyond 50% as also on the basis of law laid down by Hon'ble Apex Court in R.K.

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Sabharwal and Others v. State of Punjab and Others reported in (1995) 2 SCC 745 where the principle of roster to be followed for granting reservation in the matter of promotion so as not to exceed 50% ceiling.

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The Hon'ble Apex Court although has approved the validity of 85^th amendment but subject to the condition that the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335 of

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the Constitution of India, relevant is in paragraph 123 thereof, which reads hereunder as :-

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“ 123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

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The issue of validity of the judgment rendered by Hon'ble

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Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) fell for consideration in the case of Jarnail Singh and Others v. Lachhmi Narain Gupta and others reported in (2018) 10 SCC 396 for its reference to the larger Bench consisting of seven Judges Bench but the Constitution Bench of Hon'ble Apex Court in the Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra) has arrived at a conclusion that the judgment rendered

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in M.Nagaraj and Others v. Union of India and Others (Supra) does not need to be referred to seven Judges Bench. However, the conclusion in the M.Nagaraj and Others v. Union of India and Others (Supra) that the State has to collect quantifiable data of backwardness of the Scheduled Caste/Tribe being contrary to the judgment rendered by nine Judges Bench in Indra Sawhney and Others v. Union of India and Others (Supra), is held to be invalid to this extent.

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8. It is, thus, evident that the condition stipulated by the Constitution Bench of Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) wherein the State was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335 of the Constitution of India stood modified by holding one of the conditions, i.e., the State has to collect quantifiable data showing backwardness of the Scheduled Caste and Scheduled Tribe but allowed the other conditions i.e., inadequacy of representation of that class in public employment to remain intact, for ready reference paragraph 36 of the judgment rendered in Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra) is quoted hereunder as :-

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“ 36. Thus, we conclude that the judgment in Nagaraj [ M. Nagaraj v. Union of India , (2006) 8 SCC 212] does not need to be referred to a seven-Judge

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Bench. However, the conclusion in Nagaraj [ M. Nagaraj v. Union of India , (2006) 8 SCC 212] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney [1992 Supp (3) SCC 217] is held to be invalid to this extent.”

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Reference is also required to be made of the judgment rendered by Hon'ble Apex Court in the case of Suraj Bhan Meena and Another v. State of Rajasthan and Others reported in (2011) 1 SCC 467 which is prior to the judgment passed by the Hon'ble Apex Court in the case of Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra) in the context of an issue that a Rule was formulated by the State of Rajasthan without resorting to the condition stipulated in paragraph 123 of M.Nagaraj and Others v. Union of India and Others (Supra) and considering the fact that no exercise was undertaken in terms of Article 16(4A) to acquire quantifiable data regarding the inadequacy of representation of Scheduled Caste/Tribe community in public service, a notification dated 28.12.2002 and 25.04.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities which were quashed by the Rajasthan High Court, were refused to be interfered with by the Hon'ble Apex Court, as would appear from paragraph 67 and 68 thereof, which reads hereunder as :-

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“ 67. The view of the High Court is based on the decision in M. Nagaraj case [(2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the Notifications dated 28-12-2002 and 25-42008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference.

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68. Accordingly, the claim of petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No. 6385 of 2010 will be subject to the conditions laid down in M. Nagaraj case [(2006) 8 SCC 212] and is disposed of accordingly. Consequently, Special Leave Petitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed.”

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Further, the reference is required to be made of the judgment rendered by Hon'ble Apex Court in the case of B.K.Pavitra and Others v. Union of India and Others reported in (2019) 16 SCC 129 wherein State of Karnataka had come out with a Rule after adhering to the conditions stipulated by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) and considering the same the Reservation Act, 2018 was refused to be interfered with.

¶192

9. The reason for making reference of the judgment either passed in the case of Suraj Bhan Meena and Another v.

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State of Rajasthan and Others (supra) or B.K.Pavitra and Others v. Union of India and Others (Supra) is in the context of the facts of this case that herein also the plea has been taken that the Railway has come out with the policy decision for grant of accelerated promotion. The State of Rajasthan had also come up with the notification for grant of accelerated promotion but without adhering to the condition stipulated in the case of M.Nagaraj and Others v. Union of India and Others (Supra), i.e., without collecting the quantifiable data and considering the same contrary to the law laid down by the Hon'ble Apex Court and in the teeth of Article 16 (4A) of the Constitution of India, the said notification since has been quashed by the Rajasthan High Court and, as such, the same has not been interfered with by the Hon'ble Apex Court mainly for the reason that the exercise which was required to be done by the State of Rajasthan prior to bringing the notification to that effect since has not been adhered to, as such, the same has been considered to be illegal.

¶195

10. Contrary to that, in the case of B.K.Pavitra and Others v. Union of India and Others (Supra), when the State of Karnataka has come out with a Rule by way of Reservation Act, 2018, which was in due adherence to the conditions stipulated by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) and, therefore, the Hon'ble Apex Court in the case of B.K.Pavitra and Others

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v. Union of India and Others (Supra) has refused to interfere with the said Act.

¶198

Although the ratio laid down by the Hon'ble Apex Court in

¶199

the case of M.Nagaraj and Others v. Union of India and Others (Supra) regarding adherence to the conditions that the State was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335 of the Constitution of India has been modified to the extent that only inadequacy of representation of that class in public employment is required to be there and further, even in the

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B.K.Pavitra and Others v. Union of India and Others

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(Supra), after taking into consideration the fact that there is Reservation Act, 2002 was struck down on the basis of the failure of the State to collect quantifiable data but the Reservation Act, 2018 since has been enacted on the basis of data collected and studied in Ratna Prabha Committee Report and the data so collected since is both qualitative and quantitative and, as such, refused to interfere with the reservation policy of 2018.

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11. Here, in the facts of the given case, although the plea is being taken on behalf of the writ petitioners as also on behalf of the Railway that a policy decision has been made out for granting accelerated promotion but there is no averment as to whether the said policy decision formulated by the Railway is

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based upon due compliance of the judgment rendered in the case of M.Nagaraj and Others v. Union of India and Others (Supra) prior to pronouncement of the judgment passed by Hon'ble Apex Court in the case of Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra) wherein the judgment was pronounced on 26.09.2018 and, as such, prior to pronouncement of the judgment passed by Hon'ble Apex Court in Jarnail Singh and Others v. Lachhmi Narain Gupta and

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others (Supra) since the Railway has come out with the policy decision, therefore, the requirement as was stipulated by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) as under paragraph 123 was required to be adhered to. However, after pronouncement of the judgment passed by Hon'ble Apex Court in the case of

¶206

Jarnail Singh and Others v. Lachhmi Narain Gupta and

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others (Supra) the quantifiable data is not required to be collected regarding backwardness, inadequacy of representation and overall administrative efficiency in the public employment in addition to compliance with Article 335 of the Constitution of India, rather the State has to collect quantifiable data showing backwardness of the Scheduled Castes and Scheduled Tribes, however, the aforesaid policy decision of the Railway, which according to the Railway is in force since the year 1997, is not on the basis of the collection of the data either in the light of the law laid down by the Hon'ble Apex Court in the case of

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M.Nagaraj and Others v. Union of India and Others (Supra) or in the light of the law laid down by Hon'ble Apex Court in the case of Jarnail Singh and Others v. Lachhmi Narain Gupta

¶210

and others (Supra) and perhaps that is the reason the Railway Board has taken a decision on 30^th September, 2016 as referred in the impugned order passed by the Tribunal by keeping hold on accelerated promotion till the conclusion of S.L.P., i.e., the case of Jarnail Singh and Others v. Lachhmi Narain Gupta

¶211

and others (Supra). Since the requirement to collect the quantifiable data regarding backwardness, inadequacy of representation and overall administrative efficiency in the public employment was still there, therefore, the promotion so granted on the basis of the policy decision of the Railway which had been formulated in the teeth of the condition stipulated in the case of M.Nagaraj and Others v. Union of India and Others (Supra) or even still it is in the teeth of the law laid down in the case of Jarnail Singh and Others v. Lachhmi

¶212

Narain Gupta and others (Supra) as per paragraph 23 thereof wherein one of the conditions to collect quantifiable data regarding adequacy of representation is required to be there. 12. Even this Court has posed a question upon the learned Additional Solicitor General of India as to whether the preexercise while preparing the policy as per the condition stipulated by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) has been

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undertaken.

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Learned Additional Solicitor General of India, in all fairness, has submitted that no such exercise has been undertaken as would appear from the policy decision itself.

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13. However, the day when the learned Tribunal has passed the order impugned, i.e., on 30^th August, 2017, prevailing law was as per the law laid down by Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) since the judgment passed in Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra) by the Hon'ble Apex Court was of September 26, 2018, therefore, the consideration which was given by the learned Tribunal based upon the proposition laid down by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) is required to be seen

¶217

14. This Court, after taking into consideration the fact that the Tribunal has considered the ratio laid down by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) basis upon which the policy decision of the Railway granting accelerated promotion has been considered to be not in consonance with the law of the land.

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Further, we have considered the judgment rendered by Hon'ble Apex Court in the case of Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra) for the purpose of prevailing law as on the date when this Court is considering

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the matter.

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15. Therefore, this Court is of the considered view that as on the date when the accelerated promotion was granted in favour of the writ petitioners or even on the day when the learned Tribunal has passed the order impugned, the prevailing law under Article 141 of the Constitution of India was the law laid down by the Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) and the said policy decision basis upon which accelerated promotion was granted, cannot be said to be based upon the law laid down by the Constitution Bench of Hon'ble Apex Court in the case of M.Nagaraj and Others v. Union of India and Others (Supra) and even as on date the said policy of Railway cannot be said to be in consonance with the law laid down by the Hon'ble Apex Court in the case of Jarnail Singh and Others v. Lachhmi Narain Gupta and others (Supra).

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16. The learned Tribunal, after taking into consideration the fact about legality of the accelerated promotion which has been found to be contrary to the law of land laid down in the case of M.Nagaraj and Others v. Union of India and Others (Supra) if allowed the original application by directing to revert the writ petitioners, the same, according to our considered view, cannot be said to suffer from an error.

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However, the observation has also been given to undertake such exercise after taking recourse of the law laid down by

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