Central Administrative Tribunal - Lucknow
Harikesh vs Rcf on 10 September, 2024
CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00061/2023
Order reserved on: 01.08.2024
Order pronounced on: 10.09.2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Harikesh, aged about 41 years (DoB 20.01.1982), S/o Shri Tilthu Ram,
R/o 3072-A, MCF Colony, Lalganj, Raebareli.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India through the General Manager, Modern Coach Factory,
Lalganj, Raebareli.
2. The Principal Chief Personnel Officer, Modern Coach Factory,
Lalganj, Raebareli.
3. The Deputy Chief Personnel Officer, Modern Coach Factory, Lalganj,
Raebareli.
4. Shri Lalit Kumar (DoB 19.07.1988), posted as Sr. Technician, under
the Deputy Chief Material Engineer (Furnishing), Modern Coach
Factory, Lalganj, Raebareli.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
Shri Paltoo Ram Gupta
ORDER
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case, the applicant has sought the following reliefs:
"1. To quash the impugned panel dated 01.02.2023 and order dated 02.02.2023 to the extent, they affect the applicant and oust from the panel (contained as Annexure No. A-1 & A-2 to this OA), with all consequential benefits.
2. To direct the respondents to send the applicant for training for the post of JE/Workshop and grant all consequential benefits while granting promotion at par with his counterparts in the panel. Page 1 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors.
3. Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
4. Cost of the present case."
2. The factual matrix of the case is that the applicant, working as Senior Technician/Fitter under the respondents, applied in response to notification dated 07.08.2021 for filling up 20 posts of Junior Engineer (Workshop)(15 for unreserved, 3 for SC and 2 for ST). He and private respondent no. 4, Lalit Kumar, both belonging to SC category, secured equal marks. The official respondentsno. 1 to 3, vide impugned order dated 01.02.2023, included Lalit Kumar in the Select List and excluded the applicant. Further, the candidates in the Select List were nominated for 52 week training with effect from 03.02.2023 for promotion vide impugned order dated 02.02.2023. Aggrieved, the applicant has preferred this OA.
3.1 The applicant states that he and Lalit Kumar both secured equal marks in the written examination and for record of service resulting in a tie. In the list notified on 18.12.2022 indicating marks obtained by aspirants, the applicant stood at serial number (S. No.) 168 while Lalit Kumar stood at S. No. 216. However, the respondents issued the impugned orders dated 01.02.2023 (Select List) and dated 02.02.2023 (training) in violation of RBE No. 192 of 2019 in that fresh panel was issued without notifying the candidates affected. 3.2 The applicant contends that in the instant case the provisions of paragraph 304 of Indian Railway Establishment Manual (IREM, hereinafter) are applicable protecting his claim. However, the respondents have included Lalit Kumar over the applicant on the ground that he is senior in the post of Sr. Technician even though the applicant and Lalit Kumar belong to two different seniority units - the applicant is Sr. Technician/ Fitter while Lalit Kumar is Sr. Technician/Welder. Page 2 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors. 4.1 The official respondents (respondents no. 1 to 3) state that the applicant was initially appointed as Substitute Helper-II through Act Apprentice and was promoted to Sr. Technician/Fitter with effect from 06.11.2018. A notification for selection to the post of Junior Engineer/ Mechanical/IQ was issued on 07.08.2021, written examination conducted on 25.09.2022, result published on 02.11.2022 and notice for empanelment issued on 08.12.2022. 12 candidates represented on various grounds. After consideration of their representations, the Select List dated 08.12.2022 was amended and the revised Select List was issued on 01.02.2023 according to the procedure prescribed in Railway Board's letter dated 20.12.1999 and paragraph 13 (i) & (ii) of Master Circular No. 31. Further, the empaneled candidates were directed for 52 week training.
4.2 It is further stated by the respondents that provisions of paragraph 304 of IREM are applicable for deciding seniority for direct recruitment quota candidate. Therefore, in the present case, paragraph 302 is applicable for seniority instead of paragraph 304. 5.1 The private respondent no. 4, Lalit Kumar, states that he was appointed as Technician Group C Grade-III on 14.05.2010 through competitive examination while the applicant, Harikesh, was promoted to the post of Technician Group C Grade-III from Group D on 12.07.2010; thus, the applicant was junior to respondent no. 4. Further, respondent no. 4 was promoted to Senior Technician/Welder (Grade Pay of Rs. 4,200/-) on 29.06.2018 while the applicant was promoted to Senior Technician (Grade Pay of Rs. 4,200/-) on 08.11.2018; thus the respondent no. 4 is senior to the applicant and has been shown at S. No. 98 if the gradation list dated 27.07.2021 as compared to the applicant who was shown at S. No. 151.
Page 3 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors. 5.2 It is further stated by respondent no. 4 that he represented on 15.12.2022 against the panel dated 08.12.2022 in which the applicant was shown as passed at S. No. 168 while the respondent no. 4 shown at S. No. 215 was not included in the panel. The panel was thereafter rectified including respondent no. 4 at S. No. 18 vide impugned order dated 01.02.2023 which is just and proper. It is contended that paragraph 304 of IREM does not apply in the instant case and instead paragraphs 314, 319, 320 and 321 apply.
6.1 We have heard the parties. Learned counsel for the applicant emphasized that the present dispute relates to the Intermediate Apprentice Quota (IAQ) which is altogether different from the Departmental Promotion Quota (DPQ). In IAQ, employees having at least 3 years of non-fortuitous service as Technician-III and below 47 years of age can apply and the method is competitive selection. On the other hand, in DPQ, Sr. Technician with 2 years' service can apply and age is no bar. Notifications for filling up 20 posts through IAQ and 22 posts through DPQ were issued on the same date on 07.08.2021. For IAQ, 600 candidates applied for 20 posts. For DPQ, 66 employees formed eligibility list for 22 posts (following the ratio 1:3) in the order of seniority from the integrated seniority list. The judgment dated 10.05.2006 in OA No. 9/SKM/2001Manoj Kumar vs Union of India &Ors rendered by Calcutta Bench of this Tribunal is applicable to the present case. 6.2 Learned counsel for the respondents no. 1 to 3 maintained that the impugned orders were issued in terms of provisions of the Master Circular 31 and did not require interference. In support, judgment dated 24.01.2023 of Hon'ble High Court in Union of India &Ors vs Registrar, CAT, Madras Bench &Ors (W.P. No. 3658 of 2020 and W.M.P. 4311 and 8473 of 2020) was cited.
Page 4 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors. 6.3 Learned counsel for the private respondent no. 4 highlighted the applicability of paragraph 314 of IREM and not 304, in the instant case and averred that respondent no. 4 was rightly selected, being senior to the applicant.
7. The Notification 7.1 It is not in dispute that the controversy,as to how the respondents no. 1 to 3 have resolved the tie (equal marks) between the applicant and the respondents no. 4, has arisen out of the process followed by the respondents to fill up 20 posts against Intermediate Apprentice Quota (IAQ) through notification dated 07.08.2021. Relevant parts of this notification are extracted below:
"Sub: General Selection for the post of JE/Workshop, in Pay Matrix, Level-6 (G.P. 4,200/-) against 25% (IQ) Intermediate Apprentice Quota in Mechanical Department.
...
It has been decided by the competent authority to hold the selection for the post of JE/Workshop in pay matrix level 6 of 7th CPC (GP-4,200) against 25% (IQ) Intermediate Apprentice Quota to form a panel of eligible candidates. Accordingly options are invited from eligible willing candidates of Mechanical department, MCF/RBL who fulfil the following terms and conditions:
Total No. of Posts : 20 (UR=15, SC=3, ST=2) Eligibility Criteria
1. Employees must have completed at least 03 years of non-fortuitous service as Tech-III or higher grade post of Mechanical Deptt. As on the date of notification...
2. Employee must be below 47 years of age as on the date of notification (05 years relaxation for SC/ST category candidates)...
...
Mode of Selection and Qualifying Marks
7. Above Selection will comprise of written examination followed by scrutiny of service record and APARs of the candidates who will qualify the written test. The employee must secure 60% of marks in professional ability as well as in the aggregate. In the case of SC/ST employees must secure 50% marks in professional ability as well as in the aggregate. The panel will be formed strictly in the order of merit. (Authority : Para 8 of Master Circular 31)"
(emphasis supplied) 7.2 It is noted from the above that the process followed was general selection to fill up 20 posts, including 3 posts for SC candidates, against Page 5 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors.
IAQ, through written examination followed by scrutiny of service records.
The panel was required to be formed strictly according to merit under the authority of paragraph 8 of Master Circular 31.
8. The Master Circular 31
8.1 A perusal of the Master Circular 31 brings out the following extracts of relevance to the case at hand:
"3. Selection Posts
1. There will be only two categories of posts-" Selection Posts" and "Nonselection posts".
2. "Selection posts" are posts, grades or classes which have been notified as such with the approval of the Railway Board on the consideration that promotions to them are required to be made on the basis of positive act of selection made with the help of Selection Boards, as per procedure prescribed for this purpose, from amongst the staff eligible for selection...
7. Selection procedure ...
7.2 Number of candidates to be called for consideration for selection
(a) Eligible staff upto 3 times the number of staff to be empaneled will be called for the selection. The staff employed in the immediate lower grade on fortuitous basis will not be eligible for selection. ...
(d) In respect of general selection posts i.e. those outside the normal channel of promotion and which are filled from staff of different Departments/categories, all eligible volunteering employees irrespective of Departments in which they may be working should be called for consideration for selection without restricting the number as per 3x formula.
...
8. Allotment of marks ...
(viii) For general posts, i.e., those outside the normal channel of promotion for which candidates are called from different categories whether in the same department or from different departments and where zone of consideration is not confined to three times the number of staff to be empaneled, the selection procedure should be as under:-
(a) All eligible staff irrespective of the department in which they may be working who satisfy the prescribed conditions of eligibility and volunteer for the post should be subjected to selection which should consist of a written test consisting of objective type test/CBT and in a few cases viva voce test also as indicated in para 3 (ii) above...
NOTE ....
(d) The names of the employees selected for empanelment in the aforesaid manner should be arranged in the order of seniority."
(emphasis supplied) Page 6 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors. 8.2 It is noted that though the Master Circular 31 does not contain a specific provision as to how to break the tie when two or more candidates secure equal marks, a reading of paragraph 8 (viii)(d) indicates that the names of employees selected should be arranged in the order of seniority.
9. The IREM Provisions 9.1 Next, we examine the different provisions of IREM relied upon by the contending parties. It is noted that Chapter III of IREM is titled 'Rules Regulating Seniority of Railway Servants'. Section A of this Chapter pertains to non gazetted railway servants and it contains paragraphs 301 to 326. It is from SectionA of Chapter III that the contending parties have cited various paragraphs in support of their respective contentions.
9.2 The applicant relies upon paragraph 304 reproduced below:
"304. When two or more candidates are declared to be of equal merit at one and the same examination/selection, their relative seniority is determined by the date of birth the older candidate being the senior."
(emphasis supplied) The applicant's argument is that he being older than respondent no. 4, he is entitled to be placed higher than respondent no. 4, and, therefore, be selected ahead of respondent no. 4.
9.3 The respondents no. 1 to 3, on the other hand, contend that paragraph 304 cited by the applicant is applicable in direct recruitment. As the instant case is not of direct recruitment, but of selection through departmental examination, paragraph 302 quoted below applies instead:
"302. Seniority in the initial recruitment grades- Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process in the Page 7 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors.
case of promote and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter se seniority of promotes and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits are the same they should be put in alternate positions, the promotes being senior to the direct recruits, maintaining inter se seniority of each group. Note - (i) In case the training period of a direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct recruit shall be the date he would have normally come to the working post after completion of the prescribed period of training. Note - (ii) The Provision contained in Note (i) above will also apply to the Inter Apprentices and departmentally selected candidates against the quotas prescribed in certain categories to be filled by Limited Departmental Competitive Examination (such as 10% in the case of Traffic and Commercial Apprentices).
(emphasis supplied) 9.4 The respondent no. 4 has placed reliance on paragraph 314 which reads as follows:
"314. Seniority when the date of appointment to a grade is the same. - Subject to what has been stated in paragraphs 302, 303, 304, 305 & 306, when the dates of appointment to the grade are the same, then the dates of entry into the grade next below it shall determine seniority. If those dates also coincide, then the dates of entry into each of the lower grades in order down to the lowest grade in the channel of promotion shall determine seniority. If these dates are also identical, then the relative date of birth shall determine seniority, the older person being the senior."
(emphasis supplied) 9.5 The applicant has relied upon paragraph 304 while the respondents have relied upon paragraphs 302 and 314. Paragraph 304 gives preference to the older candidate when merit is assessed as equal. On the other hand, paragraphs 302 and 314 give priority to date of appointment to the grade or lower grades, and it is only when the relative seniority cannot be determined in this manner even after going down to the lowest grade, the date of birth shall come into play. 9.6 To determine the applicability of different paragraphs of IREM in the instant case, we turn to the cases cited by the contending parties.
10. The Cases 10.1 In the case of Manoj Kumar (supra) cited by learned counsel for the applicant, the applicant therein was LDC in CBI and had secured Page 8 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors. equal marks to private respondent no. 6 therein in LDCE for the post of sub-inspector. The contention of the applicant therein was that as per the practice followed by the Staff Selection Commission and also the Railways, the older candidate should get preference. In support of the applicant's contention, paragraph 304 of IREM was cited, and the matter was decided in favour of the applicant therein.
10.2 In the case of Registrar, CAT (supra) cited by learned counsel for the respondents no. 1 to 3, a similar controversy was adjudicated by Hon'ble High Courtin a totally different view, taking note of Circular No. E(GP) 2001/2/69 dated 17.10.2001 and paragraph 314 of IREM. Relevant extracts of the judgment dated 24.01.2023 are quoted below:
"2. The facts of the case in brief are as follows: The second respondent Ramakrishnan is a railway employee who joined the Railways on 09.01.1992 as a Khalasi and was working as Inspector Grade-I in quality assurance with effect from 21.08.2009. A notification dated 07.07.2011 for selection of Intermediate Apprentice Mechanic was issued by the petitioners and he being eligible for the promotion/selection applied for the same. There were 30 vacancies under the unreserved category and since it was a merit channel selection of those who had obtained more than 60 marks in the written test and 30 marks in the service record (for a service without penalty during the last three years) they were ranked as per the total marks obtained and 28 of them were directly through to the new grade. For the remaining two vacancies, there were six candidates all of them having secured equal marks. Therefore, in terms of the para 314 of IREM Vol. I, relative seniority comes into play when there are more eligible candidates than the actual vacancies available and all of them are placed equally. Thus the third and fourth respondents were selected for the two vacancies due to their seniority in terms of date of entry to the present grade (before promotion/selection).
...
9. The arguments on both sides along with all the documentary evidence were gone into detail. The Circular No. E(GP) 2001/2/69 dated 17.10.2001 issued by the first petitioner which is categorical as to when seniority element has to be applied in promotion. It reads as follows:
"...it has been decided that if two or more candidates secured equal marks in the aggregate then their relative merit position for the purpose of their empanelment may be determined on the basis of their relative seniority in the feeder grade..."
The para 314 of IREM, Vol. I reads as follows: ...."
10. Such a rule has been framed only to make a decision in the event of such exigencies. It does not mean that every promotion process would result in a tie situation. Arguing that element of seniority should not Page 9 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors.
find place in merit channel is not reasonable. When the Service Records marks have to be given, the petitioner have only followed the prescribed procedure of 30 marks to all as two categories of employees do not have the system of confidential report and equity has to be applied.
11. The element of merit was there in the marks obtained in the written test. It is not as though these persons qualified without merit. They got same marks causing the tie situation. The selection cannot be done on any other arbitrary manner. There has to be a prescribed procedure. Each candidate cannot dictate as to what criterion should be followed. Such a scenario will cause chaos and confusion. Therefore, the petitioners were right in not selecting the second respondent. No bias or discrimination can be attributed to such decisions..."
(emphasis supplied) 10.3 For the sake of clarity, the Circular dated 17.10.2001 quoted in the Registrar, CAT (supra)is reproduced below: " RBE No. 203/2001
Subject: Promotion to Group 'B' posts through 30% LDCE - formation of panel when two or more candidates secure equal marks.
In the various instructions issued by the Board in respect of conduct of Limited Departmental Competitive Examination for filling up 30% vacancies in Group 'B' posts no specific provision has been made in regard to the criterion to be adopted for empanelment of candidates when two or more candidates secure equal marks in the aggregate. It has come to the notice of the Board that such situations do arise on the Railways/Production Units and therefore a uniform criterion is required to be specified.
2. The matter has been carefully considered by the Board and it has been decided that if two or more candidates secure equal marks in the aggregate (Written test + Viva voce test + Record of service) in LDCE for promotion to Group 'B' posts against 30% quota, then their relative merit position for the purpose of their empanelment may be determined on the basis of their relative seniority in the feeder grade(s). The candidate who is senior shall rank higher.
3. The same criteria, as indicated in para 2 above, shall be applied for determining who will be empaneled against the last vacancy from amongst those who secure equal marks in the aggregate."
(emphasis supplied)
11. Our Conclusion 11.1 The controversy in the case at hand has arisen from notification dated 07.08.2021 issued by the official respondents to fill up posts against Intermediate Apprentice Quota (IAQ). This notification, under the authority of paragraph 8 of Master Circular 31, inter alia states that the panel will be formed strictly in order of merit. Paragraph 8 (viii)(d) of the Page 10 of 11 CAT,Lucknow Bench OA No. 332/0061 of 2023 Harikesh Vs. U.O.I. &Ors. Master Circular 31 provides that the names of employees selected should be arranged in the order of seniority. If two candidates have equal merit, paragraph 304 of IREM provides that the older candidate should be the senior. Paragraph 314 of IREM provides that if two candidates are appointed on the same date, their relative seniority should be determined with reference to their date of entry in the lower grade(s), and if they are also identical, the older candidate should be the senior. In our view, the 'examination/selection' referred to in paragraph 304 of IREM can be interpreted only with reference to direct recruitment. If the 'examination/selection' referred to in paragraph 304 of IREM is applied to departmental examinations, whether based on merit-cum-seniority or merit, it will be contrary to the principles enunciated in the Master Circular 31 which recognize the element of seniority. Therefore, we are in agreement with the respondents that paragraph 304 of IREM is of no avail in the present case.
11.2 In our opinion, the facts and circumstances of the Registrar, CAT (supra)based on Circular dated 17.10.2001 and paragraph 314 of IREM are similar to the case at hand.
12.1 In view of the facts and circumstances above, no relief can be granted to the applicant. This OA is disposed of accordingly. 12.2 Pending MAs, if any, are also disposed of.
12.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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