Holding

The Court held that the High Court orders extending the zone of consideration for regular promotions were erroneous because a special drive for filling backlog SC/ST vacancies is distinct from regular promotions, and therefore those orders are set aside.

Summary

The Union of India appealed against orders of the Central Administrative Tribunal and the High Courts that had directed a separate zone of consideration for promotion of Scheduled Tribe candidates to the post of Superintendent in the Customs and Central Excise Commissionerate. The applicants argued that a special drive dated 26‑8‑2004 was issued to fill backlog vacancies reserved for SC/ST, and that the existing Office Memorandums governing regular promotions (24‑12‑1980, 22‑4‑1992, 6‑1‑2006) were inapplicable. The Court examined the distinction between a special drive for backlog vacancies, ad‑hoc promotions, and regular promotions conducted through a Departmental Promotion Committee. It held that the Tribunal and High Courts had conflated these distinct processes and applied the yardstick for ad‑hoc promotions to regular promotions, thereby answering a non‑existent question. Consequently, the orders extending the zone of consideration for regular promotions were set aside. The appeals were allowed.

Issues considered

The applicability of the Office Memorandum dated 26‑8‑2004 (special drive for backlog SC/ST vacancies) to regular promotions.
Whether the zone of consideration for regular promotions can be extended to include all candidates, including general category, for SC/ST reserved posts.
The distinction between ad‑hoc promotions and regular promotions under the Departmental Promotion Committee framework.

Legislation cited

Administrative Tribunal Act, 1985s. 19

Subjects

service lawpromotionbacklog vacanciesspecial driveregular promotiondepartmental promotion committeereservationSC/STzone of considerationad hoc promotionadministrative tribunal

Judgment

1106 [2022]
SUPREME COURT 17 S.C.R. 1106
REPORTS [2022] 17 S.C.R.

A UNION OF INDIA & ORS.
v.
GOPAL MEENA & ORS.
(Civil Appeal No. 3314 of 2010)
B AUGUST 10, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
Service Law – Promotion – Special drive for filling up backlog
vacancies vis-à-vis regular promotion – Distinction between ad hoc
promotions and regular promotions – Held: Distinction between a
C
special drive for filling up backlog vacancies and regular promotion
to candidates both from the reserved and the unreserved categories,
is too obvious – While filling up vacancies by way of promotion on
regular basis, a Departmental Promotion Committee (DPC) is
constituted and the profile of the candidates coming within the zone
D of consideration is prepared – But in a special drive for filling up
the backlog vacancies meant for reserved category candidates, such
an exercise become redundant – This is because all candidates who
will be considered for promotion, in a special drive, will invariably
belong to the same reserved category, as otherwise it will cease to
be a special drive – Similarly, the exercise undertaken for filling up
E
vacancies on ad hoc basis, stands on a different footing from the
exercise undertaken for the grant of regular promotions – In the
present case, there is no parity between backlog vacancies covered
in Office Memorandum dated 26.8.2004 and the regular promotion
covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006
F – Therefore, the Tribunal as well as the High Court have completely
missed the issue involved in the subsequent applications filed by
the candidates – Tribunal and the High Court missed the distinction
between ad hoc promotions and the regular promotions to be made
through DPC – High Court as well as the Tribunal fell into error on
two aspects- they did not address the issue whether there was a
G
special recruitment drive for filling up of backlog vacancies and
whether there was a failure to consider the case of the respondents;
and they applied the yardstick meant for ad hoc promotions to the
case of regular promotions, though the case of the candidates was
for unfilled backlog vacancies – This fundamental error of focus
H resulted in the Tribunal and the High Court answering a question
1106
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1107

that did not arise – Orders of the High Courts are erroneous and A
not sustainable in law – Consequently, the orders passed for regular
promotion by extending the zone of consideration do not arise, set
aside.
U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan
Sangh v. U.P. State Electricity Board & Ors.(Civil B
Appeal No.- 4026 of 1988); C.D. Bhatia & Ors. v.
Union of India & Ors. (Special Leave to Appeal (Civil)
No.- 14566 of 1995); Basudeo Anil & Ors. v. Union of
India & Ors (Civil Appeal No.- 1194 of 1992);
Kunhayammed v. State of Kerala (2000) 6 SCC 359:
2000 (1) Suppl. SCR 538, Khoday Distilleries Ltd. v. C
Sri Mahadeshwara Sahakara Sakkare Karkhane
Ltd.(2019) 4 SCC 376 : 2019 (3) SCR 41, R.K.
Sabharwal & Ors. v. State of Punjab & Ors. (1995) 2
SCC 745 :1994(5) Suppl. SCR 654, Chebrolu Leela
Prasad Rao & Ors. v. State of Andhra Pradesh & Ors. D
(2021) 11 SCC 401, Ajit Singh & Ors. (II) v. State of
Punjab & Ors. (1999) 7SCC 209 : 1999 (2) Suppl. SCR
521, S.B. Mathur & Ors. v. Chief Justice of Delhi High
Court & Ors. (1989) Supp (1) SCC 34 : 1988 (2) Suppl.
SCR 772; Duddilla Srinivasa Sharma & Ors. v. V.
Chrysolite (2013) 16 SCC 702 : 2013 (12) SCR 421; E
P. Sheshadri v. Union of India & Anr. (1995) 3 SCC
552 : 1995 (2) SCR 621 – referred to.
Case Law Reference
[2000] 1 Suppl. SCR 538 referred to Para 13 F
[2019] 3 SCR 41 referred to Para 13
[1994] 5 Suppl. SCR 654 referred to Para 17
[1999] 2 Suppl. SCR 521 referred to Para 18
[1988] 2 Suppl. SCR 772 referred to Para 18 G
[2013] 12 SCR 421 referred to Para 18
[1995] 2 SCR 621 referred to Para 27
CIVIL APPELLATE JURISDICTION : Civil Appeal No.3314
of 2010. H
1108 SUPREME COURT REPORTS [2022] 17 S.C.R.

A From the Judgment and Order dated 23.04.2009 of the High Court
of Delhi at New Delhi in W.P. (C) No.356 of 2008.
With
Civil Appeal Nos.5933 and 9436 of 2010.
B Ms. Aishwarya Bhati, ASG, R. Balasubramanian, Sr. Adv., Ms.
Ameyavikrama Tanvi, Shiv Mangal Sharma, Mukesh Kumar Maroria,
Mrs. Anil Katiyar, B. Krishna Prasad, Dr. M. P. Raju, Pushkar Anand,
K. K. Mishra, Dr. Ashwini Bhardwaj, R. K. Kapoor, Rajat Kapoor,
Kheyali Singh, R. K. Shukla, Dinesh S. Badiar, Arup Ratan Dutta
Chaudhary, Ravi Kumar Tomar, Advs. for the appearing parties.
C
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present three appeals have been preferred by the Union of
India; two appeals viz. Civil Appeal No. 3314 of 2010 and Civil Appeal
D No. 5933 of 2010 arise out of an order passed by the Central
Administrative Tribunal1, affirmed by the High Court of Delhi and High
Court of Punjab & Haryana, directing separate zone of consideration
for promotion of Scheduled Caste/Scheduled Tribe candidates to the
post of Superintendent in the Customs and Central Excise
Commissionerate from the post of Inspector, whereas the Civil Appeal
E
No. 9436 of 2010 is directed against a similar direction by the High
Court of Delhi but in respect of Indo-Tibetan Border Police for promotion
to the post of Assistant Commandant from the post of Subedar Major
Stenographer.
2. For the sake of brevity, the facts are quoted from the Civil
F
Appeal No. 3314 of 2010. The grievance of the applicants 2, belonging to
the Scheduled Tribes, was that there is backlog of vacancies for the post
of Superintendent which have not been filled up for the reason that the
candidates are not available within the zone of consideration. Therefore,
to fill up the 29 posts of Superintendent, it was prayed that a separate
G zone of consideration be created for the Scheduled Tribe candidates so
that the vacancies in the cadre of Superintendent meant for them could
be filled up.
1
For short, the ‘Tribunal’
2
For short, the ‘candidates’
H
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1109
[HEMANT GUPTA, J.]

3. The Tribunal found that the Office Memorandum dated A
30.9.1983 which restricted the zone of consideration to five times of the
posts to be illegal. Reliance was placed upon the orders passed by this
Court in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan
Sangh v. U.P. State Electricity Board & Ors.3; C.D. Bhatia & Ors.
v. Union of India & Ors.4; and, Basudeo Anil & Ors. v. Union of
B
India & Ors.5 wherein the Office Memorandum dated 30.9.1983
restricting the zone of consideration was found to be illegal.
4. The attention of the Court was drawn to the earlier Office
Memorandum dated 24.12.1980 which contemplated that the zone of
consideration can be extended to five times the number of vacancies
and the Scheduled Tribe candidates (and not any other) coming within C
the extended field of choice, should also be considered against the
vacancies reserved for them. The relevant extract reads thus:
“(a) The Department Promotion Committee (DPC) shall for ‘the
purpose of determining the number of officers who should be
considered from out of those eligible officers in the feeder grade(s) D
restrict the field of choice as under, with reference to the number
of clear regular vacancies proposed to be filled in the year.
No. of vacancies No. of officers to be considered
(1) (2)
1 5 E
2 8
3 10
4 or more three times the number of vacancies
(b) Where, however, the number of eligible officer in the feeder
grade(s) is less than the number in Col. (2) above, all the officers
so eligible should be considered. F
(c) Where adequate number of SC/ST candidates are not available
within the normal field of choice as above, the field of choice may
be extended to 5 times the number of vacancies and the SC/ST
candidates (and not any other) coming within the extended field
of choice, should also be considered against the vacancies reserved G
for them.
3
Civil Appeal No. 4026 of 1988 decided on 23.11.1994
4
Petition for Special Leave to Appeal (Civil) No. 14566 of 1995 decided on 20.10.1995
5
Civil Appeal No. 1194 of 1992 decided on 7.9.2000
H
1110 SUPREME COURT REPORTS [2022] 17 S.C.R.

A Officers belonging to SC/ST selected for promotion against
vacancies reserved for them from out of the extended field of
choice under sub para (e) above, would however be placed en
bloc below all the other officers selected from within the normal
field of choice.”
B 5. It is thereafter, an Office Memorandum was issued on 30.4.1983
for regulating ad-hoc promotions for consideration of cases for Scheduled
Caste and Scheduled Tribe candidates with reference to an earlier Office
Memorandum dated 6.4.1979. The relevant clauses read thus:
“3. Since ad hoc promotions are made on the basis of seniority-
C cum-fitness, all the Scheduled Castes/Scheduled Tribes candidates
covered in the relevant seniority list within the total number of
such vacancies against which ad hoc promotions are to be made,
should be considered in the order of their general seniority as per
the gradation list, on the principle of seniority-cum-fitness and if
they are not adjudged unfit, they should all be promoted on adhoc
D basis.
4. If, however, the number of SC/ST candidates found fit within
the range of actual vacancies is less than the number of vacancies
identified as falling to their share if the vacancies were filled on a
regular basis vide (2) above then additional SC/ST candidates to
E the extent requested should be located by going down the seniority
list, provided they are eligible and found fit for such ad hoc
appointment. This procedure should be adopted on every occasion
on which ad hoc appointment is resorted to.
xx xx xx
F
7. For regular promotions when eventually made the procedures
and instructions laid down in the Brochure will continue to apply.”
6. Another Office Memorandum was issued on 30.9.1983
pertaining to ad-hoc promotion by the Department of Personnel and
Administrative Reforms wherein the zone of consideration for Scheduled
G
Caste and Scheduled Tribe candidates was restricted up to five times.
The relevant clause reads thus:
“2. It has not been decided that the Scheduled Castes/Scheduled
Tribes candidates who are within the number of actual vacancies
should be considered in accordance with their general seniority
H
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1111
[HEMANT GUPTA, J.]

on the principle of seniority cum fitness and if they are not adjudged A
unfit, they should all be promoted on ad hoc basis. If, however,
the number of Scheduled Castes/Scheduled Tribes candidates found
fit within the range of actual vacancies is less than the number of
vacancies identified as falling to their share, than additional
Scheduled Castes/Scheduled Tribes candidates to the extent
B
required should be located by going down the seniority list but
within 5 times the number of vacancies being filled on a particular
occasion, subject, of course, to their eligibility and fitness.”
7. The order in Basudeo Anil dealt with Office Memorandums
dated 30.4.1983 and 30.9.1983 wherein the appeal was allowed and it
was held that the condition of restricting the number of Scheduled Caste C
and Scheduled Tribe candidates to five times of the total number of such
vacancies as provided in Office Memorandum dated 30.9.1983 is not
legal. It was observed as under:
“In the aforesaid premises, the question for consideration is
whether by the subsequent Office Memorandum dated 30th D
September, 1983 can it be said that the rights of the reserved
category candidates to get their due has been taken away. It is
undisputed that in the service in question there has been a specified
percentage of reservation, and in fact that was reflected also in
the Office Memorandum of April, 1983, which provided for the E
procedure to be adopted for appointment of the Vice-Principal on
ad-hoc basis. We see no reason for issuance of the second
Memorandum of the 30th September, 1983, which in fact taken
away the rights conferred upon the reserved category candidates
under the Office Memorandum of the 30th April, 1983, and which
is also in accordance with the constitutional mandate. In that view F
of the matter, we quash the subsequent Office memorandum dated
30th September, 1983 issued by the Ministry of Home Affairs in
the Department of Personnel and allow this appeal.”
8. The Office Memorandum dated 30.9.1983 was thus withdrawn
on 15.3.2002 in view of the judgment of this Court in Basudeo Anil and G
it was held that ad-hoc promotions would be regulated as per instructions
dated 30.4.1983. The relevant clause of Office Memorandum dated
15.3.2002 reads thus:
“2. The Supreme Court in its judgement dated 7.9.2000 in the
case of Union of India and others Vs. Shri. Basudeo Anil and H
1112 SUPREME COURT REPORTS [2022] 17 S.C.R.

A others (Civil Appeal No.1194/1992) has quashed the Department
of Personnel and Administrative Reforms O.M. No.36011/14/83-
Estt.(SCT) dated 30.9.1983. It has, therefore, been decided to
withdraw the Department of Personnel and Administrative
Reforms’ O,M. No.36011/14/83- Estt.(SCT) dated 30.9.1983 with
immediate effect. Thus claims of the Scheduled Castes/Scheduled
B
Tribe candidates in the matter of ad hoc promotions would
henceforth be regulated as per instructions contained in Department
of Personnel and Administrative Reforms’ O.M.No.36011/14/83-
Estt.(SCT) dated 30.4.1983.”
9. An Office Memorandum was issued on 22.4.1992 wherein zone
C of consideration of officers for promotion by selection was prescribed in
continuation of Office Memorandum dated 24.12.1980. The relevant
extract reads thus:
“In this Department’s O.M. No. 2201 1/3/76-Estt. (D) dated the
24th December, 1980 the zone of consideration of officers for
D promotion by selection was prescribed as under:-
No. of vacancies No. of officers to be considered
1 5
2 8
3 10
4 or more three times the number of vacancies
E
It was also laid down that where adequate number of SC/ST
candidates are not available within the normal field of choice as
indicated above, the field of choice may be extended to five times
the number of vacancies and the SC/ST (and not any other) coming
within me extended field of choice be considered against the
F vacancies reserved for them. This provision relating to an extended
zone of five times the number of vacancies in respect of SC/ST
has been retained in O.M. No, 22011/5/86-Estt. (D) dated 10.3.89
and 10.4.89 and also in O.M No 22011/1/90-Estt. (D) dated
12.10.90 in which the normal zone of consideration for general
G category was reduced for vacancies numbering 5 and above,
2. It is hereby clarified that the intention is to have an extended
zone of five times the number of vacancies in all cases where
adequate number of SC/ST candidates are not available in the
normal zone of a smaller size. For a single vacancy, since the
H normal zone itself is 5 i.e. five times the number of vacancies
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1113
[HEMANT GUPTA, J.]

there is no intention to extend the zone. The normal zone and the A
extended zone for vacancies will accordingly be as follows :
No. of vacancies Normal Zone Zone for
consideration for
SC/ST
1 5 5
B
2 8 10
3 10 15
4 12 20
5 and above Twice the number of 5 times the number
vacancies + 4 of vacancies

10. Subsequently, another Office Memorandum was issued on C
6.1.2006. It was communicated after review of the size of zone of
consideration as under:
“The size of zone of consideration for, promotion by ‘selection’ as
prescribed vide DoPT O.M. No. 22011/1/90- Estt.D dated 12th
October 1990 read with O.M. No. 22011 / 1/90-Estt- (D) dated D
22nd April 1992 is as under:
No. of vacancies Normal size of zoneof Extended Zone of
consideration consideration for
SC/ST
1 5 5
2 8 10 E
3 10 15
4 12 20
5 and above Twice the number of 5 times the
vacancies + 4 number of
vacancies

xx xx xx F

2. ...............Accordingly, a need has arisen for review of the size
of zone of consideration. Having a size of zone of consideration
larger than is necessary in the revised context would lead to
unnecessary paper work, which may also lead to delay in convening
DPCs. However, the zone of consideration has still to be wide G
enough to cater to the needs of the Department/cadre authorities
for giving an extended panel against empanelled officers who are
on deputation or are expected to proceed shortly; who have retired
or will be retiring in the course of the vacancy year or who have
refused promotion and are under debarment. The size should also H
1114 SUPREME COURT REPORTS [2022] 17 S.C.R.

A be sufficient to take care of officers in the feeder grade whose
cases are to be placed in ‘sealed cover’ and also of those who do
not meet the prescribed benchmark. Thus, there is a need for
optimizing the size of zone of consideration.
3. The matter has been considered carefully. Keeping in view the
B considerations in para-2 above, it has been decided to modify the
existing provisions relating to size of zone of consideration as
under:”
11. The argument of Ms. Bhati is that the order in U.P. Rajya
Vidyut Parishad SC/ST Karamchari Kalyan Sangh is a consent order,
C which cannot be treated as precedent, which is evident from the following
operative part of the order:
“In view of the averments made in the affidavit quoted above, it is
not necessary for us to go into the various questions canvassed
before us. The contentions of the appellants before us have been
D substantially met with by the Board. In view of the stand taken by
the Board in its aforesaid affidavit, the judgement of the High
Court was become redundant and it shall not be operative. The
appeal is disposed of with no order as to costs.”
12. In C.D. Bhatia, this Court had passed an order based upon
E the order in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan
Sangh giving liberty to the petitioner to approach the Government in
order to seek enforcement of the law laid down. The operative part of
the said order is as under:
“We are, however, of the view that the law laid down by this
F Court in U.P. Rajya Vidyut Parishad’s Case is binding on all the
authorities including the Union of India. The petitioner may, if so
advised, approach the Government seeking enforcement of the
law laid by this Court. Special leave petitions are disposed of.”
13. It is contended that the order in C.D. Bhatia is an order in a
Special Leave Petition affirming an order passed by the Tribunal, thus
G
cannot be treated to be a precedent. Reliance is placed upon an order
passed by this Court in Kunhayammed v. State of Kerala6, and Khoday
Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane
Ltd.7. It was further argued that both orders, as referred above, were
6
(2000) 6 SCC 359
H 7
(2019) 4 SCC 376
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1115
[HEMANT GUPTA, J.]

referred to in Basudeo Anil, but the fact that order in U.P. Rajya Vidyut A
Parishad SC/ST Karamchari Kalyan Sangh was based upon a
concession and the order in C.D. Bhatia was an order in Special Leave
Petition was not brought to the notice of the Court. Moreover, the Office
Memorandums dated 24.12.1980, and dated 22.4.1992 dealing with
substantive promotion by the Departmental Promotion Committee were
B
not brought to the notice of the Court.
14. It has been further contended that there cannot be a separate
zone of consideration for each category of the officials. The zone of
consideration is in respect of the candidates falling in the seniority list.
The candidates belonging to Scheduled Caste and Scheduled Tribe were
given relaxation to extend zone of consideration up to five times of the C
vacancies. It is argued that the effect of the order passed by the High
Court would be that all eligible candidates, at whatever position in the
seniority list, would fall within the zone of consideration, though they
may be lowest in the list. Such creation of zone of consideration is not in
consonance with the efficiency in the service. Still further, enlarging the D
zone of consideration for Scheduled Caste and Scheduled Tribe to five
times cannot be said to be arbitrary, irrational or illegal, which could be
struck down in exercise of power of judicial review.
15. The issue in Basudeo Anil was restricted to the Office
Memorandum dated 30.9.1983 which was a clarification to the Office E
Memorandum dated 30.4.1983 in respect of ad-hoc promotions. The
regular or substantive promotions have to be carried by Office
Memorandum dated 24.12.1980 or other Office Memorandums issued
from time to time.
16. The Office Memorandum dated 30.4.1983 was not to amend F
the Office Memorandum dated 24.12.1980. This OM was in reference
to Office Memorandum dated 16.4.1979 asking the Departments to resort
to ad-hoc promotions, when it becomes inescapable in public interest.
For regular promotions, the procedural instructions laid down in the
brochure was to apply (Clause 7 of the OM dated 30.4.1983). Therefore,
the Office Memorandum dated 30.4.1983 was only dealing with ad-hoc G
promotions and not with substantive promotions. Hence, the office
Memorandum dated 24.12.1980 would continue to apply in respect of
substantive promotions.
17. On the other hand, Dr. M.P. Raju, learned counsel for the
candidates quoted the order passed by the High Court and contended H
1116 SUPREME COURT REPORTS [2022] 17 S.C.R.

A that there are about 29 posts of Superintendent in the Custom and Central
Excise Commissionerate which are required to be filled up by Scheduled
Tribe candidates. The said posts have not been filled up only for the
reason that reasonable number of Scheduled Tribe candidates do not
come within the zone of consideration. Therefore, the order of the High
Court is fair and reasonable so as to give effective meaning to the policy
B
of reservation for the Scheduled Caste and Scheduled Tribe. Reliance is
based upon the three orders, as mentioned above. In addition thereto,
reliance has been placed upon a judgment of this Court reported as R.K.
Sabharwal & Ors. v. State of Punjab & Ors.8 to contend that filling of
posts or vacancies through reservation has to be post-based and that the
C roster points meant for Scheduled Tribes should only be filled by the
Scheduled Tribes alone. Thus, applying the principle of reservation, general
category and reserved category have to be treated separately and without
clubbing. It was thus argued that there has to be a separate zone for
each category i.e., for general, Scheduled Caste and Scheduled Tribe,
rather than the common seniority list which is prevalent for determining
D
zone of consideration for promotion. Accordingly, a separate zone of
consideration for the Scheduled Tribe candidates is in fact the only way
to give effect to the reservation policy.
18. It is also contended that after the year 2002, if the backlog
vacancies are not filled up, the Union can de-reserve those vacancies,
E thus, jeopardizing the interests of the reserved category candidates. It is
argued that a joint zone of consideration is thus a gross violation of Article
16 (4A) of the Constitution. The basic reason for non-filing of backlog
vacancies in promotion quota is the application of a common zone of
consideration which is prepared as field of choice for promotion. It is
F also averred that present matter is a case of a special drive to fill the
backlog vacancies reserved for Scheduled Caste and Scheduled Tribe
candidates in promotion quota, therefore, the inclusion of general category
candidates while preparing zone of consideration for promotion seems
to be illogical and against the very purpose of reservation. Therefore,
separate non-joint zone of consideration should be prepared for each
G Scheduled Caste and Scheduled Tribe category without including general
category candidates. Reliance is placed upon Chebrolu Leela Prasad
Rao & Ors. v. State of Andhra Pradesh & Ors. 9 wherein the
classification limiting the zone of consideration was found to be illegal,
8
(1995) 2 SCC 745
H 9
(2021) 11 SCC 401
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1117
[HEMANT GUPTA, J.]

unreasonable and arbitrary. Reference was also made to Ajit Singh & A
Ors. (II) v. State of Punjab & Ors.10, S.B. Mathur & Ors. v. Chief
Justice of Delhi High Court & Ors.11 and Duddilla Srinivasa Sharma
& Ors. v. V. Chrysolite12 to contend that limiting the zone of
consideration and shortlisting the candidates has to be reasonable, non-
arbitrary, rational and having a nexus with the objective sought to be
B
achieved. Dr. Raju has also placed reliance upon P. Sheshadri v. Union
of India & Anr.13 to contend that joint select lists for Scheduled Caste/
Scheduled Tribe and general category would defeat the purpose of
reservation by pushing the eligible Scheduled Tribe candidate out of the
zone of consideration.
19. We have heard learned counsel for the parties and find that C
the entire case of the candidates has been projected in untenable manner.
20. In P. Sheshadri, the Office Memorandum dated 24.12.1980,
referred to by the learned counsel for the appellant, along with the other
Office Memorandums were the subject matter of consideration. This
Court held as under: D
“11. …..Further clause (ii) of para 2.3.2. of OM dated 10-3- 1989
contemplates that selection against vacancies reserved for
Scheduled Castes and Scheduled Tribes will be made only from
those Scheduled Caste/Scheduled Tribe officers who are within
the normal zone of consideration prescribed by the Department E
of Personnel and AR vide OM No. 22011 dated 24-12-1980. It
further contemplates that where (sic adequate) number of
Scheduled Caste/Scheduled Tribe candidates are not available
within the normal field of choice, it may be extended to five times
the number of vacancies and Scheduled Caste/Scheduled Tribe F
candidates (and not any other) coming within the extended field
of choice, should also be considered against the vacancies reserved
for them. If candidates from Scheduled Castes and Scheduled
Tribes obtained on the basis of merit with due regard to seniority,
on the same basis as others, are less than the number of vacancies
reserved for them, the difference should be made up by selecting G
candidates of these communities, who are in the zone of
10
(1999) 7 SCC 209
11
1989 Supp (1) SCC 34
12
(2013) 16 SCC 702
13
(1995) 3 SCC 552 H
1118 SUPREME COURT REPORTS [2022] 17 S.C.R.

A consideration, irrespective of merit and benchmark but who are
considered for promotion and officers belonging to Scheduled
Castes and Scheduled Tribes selected for promotion against
vacancies reserved for them from within the extended field of
choice would however be placed en bloc below all the other officers
selected from within the normal field of choice….”
B
21. We find that the Tribunal and the High Courts have missed
the real controversy. The Government of India had issued an Office
Memorandum dated 26.8.2004 to fill backlog vacancies reserved for
Scheduled Caste and Scheduled Tribe in promotion quota as a special
drive. Such Office Memorandum was not relating to the Customs and
C Central Excise Commissionerate or the Indo Tibetan Border Police but
to all the employees of the Central Government. The candidates in the
Office of Customs and Central Excise Commissionerate submitted
representations for consideration for promotion to the grade of
Superintendents. Such representations were rejected on 4.2.2005. The
D reason for rejection of the representation was that the officers had joined
Central Excise Delhi Zone as Inspectors on inter-Commissionerate on
transfer basis in 2003. Therefore, they are too juniors to be included
even in the extended zone of consideration.
22. Such communication was challenged by the candidates by an
application under Section 19 of the Administrative Tribunal Act, 1985.
E The reliance was placed upon the three orders in U.P. Rajya Vidyut
Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and,
Basudeo Anil. Considering the said orders, the Tribunal returned the
following findings:
“27. However, we find that DoPT is not made as a party before
F us. Be that as it may, the fact remains that applicants who had not
been in the zone of consideration, yet in the wake of unfilled quota
for ST de-reservation or thereafter backlog vacancies is not a
correct procedure followed by respondents.
28. We have also in mind the law laid down by the Apex Court
G that total reservation should not exceed 50%. Accordingly, when
the requisite percentage of quota of each reserved category is
satisfied then post-based roster shall come into effect. The above
methodology shall also hold good while filling up the quota for ST.
29. In the result, for the foregoing reasons, this OA is partly allowed.
Impugned order is set aside. Respondents are directed to take up
H
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1119
[HEMANT GUPTA, J.]

the matter of extension of same treatment which has been meted A
out to SC/ST candidates in ad hoc promotions vide DoPT OM
dated 15.3.2002 to be extended in regular promotions as well and
on forwarding a copy of this order to the DoPT after consideration
of our observations and decisions of the Apex Court and on a
decision taken by the DoPT respondents shall consider applicants
B
for promotion to the posts of Superintendents in their reserved
quota and till then, if not already done, shall neither de-reserve the
backlog vacancies meant for ST categories nor fill up these posts
in any manner whatsoever. No costs.”
23. The order impugned in the Original Application was the order
dated 4.2.2005 rejecting the representations of some of the candidates C
for promotion that the candidates have joined Central Excise (Delhi Zone)
as Inspector on Inter Commissionerate transfer basis in the year 2003.
The Tribunal has not examined the question of seniority on account of
Inter Commissionerate transfer. The order dated 4.2.2005 was set aside
and a direction was issued to grant same treatment to SC/ST candidates D
in ad hoc promotions as well as in regular promotions.
24. After the said decision of the Tribunal, DoPT issued revised
guidelines for optimizing the size of zone of consideration on 6.1.2006
independent of the order of the Tribunal dated 19.10.2005, which has
been adversely commented upon by the Tribunal. E
25. We find that there are three situation of promotion which are
required to be examined. One is backlog vacancies for which an Office
Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions
for which an Office Memorandum dated 30.4.1983 was issued followed
by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of F
30.4.1983, as reproduced above, specifically states that, for regular
promotions, procedures and instructions laid down in the Brochure will
continue to apply. For regular promotions, Office Memorandum has been
issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of
consideration was prescribed keeping in view the number of vacancies
which are to be filled up. G
26. In the Original Application later filed, the candidates challenged
the Office Memorandum dated 6.1.2006 which is in relation to regular
promotions. There is no parity between backlog vacancies covered in
Office Memorandum dated 26.8.2004 and the regular promotion covered
H
1120 SUPREME COURT REPORTS [2022] 17 S.C.R.

A in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore,
the Tribunal as well as the High Court have completely missed the issue
involved in the subsequent applications filed by the candidates. The
grievance of the candidates, first in Original Application No. 688 of 2005
was only filling up of backlog vacancies and not regular or ad hoc
promotions. The Tribunal and the High Court had missed the distinction
B
between ad hoc promotions and the regular promotions to be made through
Departmental Promotion Committee (DPC).
27. The validity of Office Memorandum dated 24.12.1980 has
been upheld by this Court in P. Sheshadri. Since the validity of the
C Office Memorandum has been upheld, the validity cannot be put to test
again on the basis of Office Memorandum for filling up the backlog
vacancies or ad hoc promotion.
28. The distinction between a special drive for filling up backlog
vacancies and regular promotion to candidates both from the reserved
D and the unreserved categories, is too obvious. While filling up vacancies
by way of promotion on regular basis, a DPC is constituted and the
profile of the candidates coming within the zone of consideration is
prepared. But in a special drive for filling up the backlog vacancies meant
for reserved category candidates, such an exercise become redundant.
This is because all candidates who will be considered for promotion, in a
E special drive, will invariably belong to the same reserved category, as
otherwise it will cease to be a special drive.
29. Similarly, the exercise undertaken for filling up vacancies on
ad hoc basis, stands on a different footing from the exercise undertaken
for the grant of regular promotions. The High Court as well as the Tribunal
F fell into error on two aspects namely: -
(i) They did not address the issue whether there was a special
recruitment drive for filling up of backlog vacancies and
whether there was a failure to consider the case of the
respondents; and
G
(ii) They applied the yardstick meant for ad hoc promotions to
the case of regular promotions, though the case of the
candidates was for unfilled backlog vacancies. This
fundamental error of focus has resulted in the Tribunal and
the High Court answering a question that did not arise.
H
UNION OF INDIA & ORS.v. GOPAL MEENA & ORS. 1121
[HEMANT GUPTA, J.]

Therefore, we find the orders of the High Courts are clearly A
erroneous and not sustainable in law. Consequently, the orders passed
for regular promotion by extending the zone of consideration do not arise.
The same are set aside and the appeals are allowed.

Divya Pandey and Amarendra Kumar Appeals allowed. B
(Assisted by : Pragya Samal, LCRA)

C

D

E

F

G

H