Madras High Court
K.Kamatchi vs The Chief Personnel Officer on 25 August, 2014
Bench: Satish K. Agnihotri, Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2014 CORAM THE HON'BLE MR.JUSTICE SATISH K. AGNIHOTRI AND THE HON'BLE MRS JUSTICE PUSHPA SATHYANARAYANA W.P.Nos.6663 and 6664 of 2012 K.Kamatchi .. Petitioner in W.P.No.6663 of 2012 M.Smile .. Petitioner in W.P.No.6664 of 2012 Vs. 1.The Chief Personnel Officer, Southern Railway, Chennai-600 003. representing Union of India. 2.Divisional Railway Manager/Works/SA, Divisional Office, Personnel Branch, Southern Railway, Salem-636 005. 3.Divisional Personnel Officer, Southern Railway, Salem-636 005. 4.Central Administrative Tribunal, rep by its Registrar, High Court Compound, Chennai-600 104. .. Respondents in both writ petitions These writ petitions are filed under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to O.A.Nos.108/2011 and 1328 of 2010, dated 09.09.2011 passed by the fourth respondent Tribunal and quash the same by allowing the said O.A and to direct the respondents to notionally promote the petitioner to the post of Senior PWS w.e.f. 21.07.2010 and to refix the pension and to sanction arrears of pay and all other consequential benefits. For Petitioners : Mr.Y.Kavitha in both W.Ps. For Respondents : Mr.M.Udhayakumar for RR1 to 3 Tribunal R-4 in both W.Ps. - - - - - COMMON ORDER
Both writ petitions arise from the common order dated 9th September, 2011 passed by the Central Administrative Tribunal, Madras Bench in O.A.Nos.108 of 2011 and 1328 of 2010 respectively.
2.Indisputably, the applicants are working as Keyman and the next promotion was to the post of Senior Permanent Way Supervisor (Senior PWS). The petitioner in W.P.No.6663 of 2012 superannuated on 31.05.2011. Applications were invited from eligible candidates to fill up the vacancies on the post of Senior PWS. The petitioners applied and appeared in the written examination held on 21.04.2010 successfully. Thereafter, before the issue of the order, it was discovered by the Headquarters office, Southern Railway, Chennai that as per the Railway Board's letter No.E(NG)-2007/PM 5/5 dated 3.7.2007, the criteria for promotion was not followed and as such, selection was cancelled vide letter dated 14.10.2010 and a fresh selection was initiated. The petitioners applied and became successful in the next selection also. The petitioners have filed petitions claiming seniority with effect from 21.4.2010, i.e., from the date they appeared in the written examination, pursuant to the first selection on the ground that if the selection was vitiated, the authorities could not have cancelled the selection process en-block, but after weeding out the candidates who were properly selected. When Gangmen's category was also included in the selection erroneously, the entire selection was cancelled and a fresh selection was initiated.
3.Heard the learned counsel for the parties and perused the pleadings carefully and documents appended thereto.
4.The relevant rules for the purpose of promotion to Senior PWS reads as under :
In terms of extant procedure the posts of erstwhile Supervisor (P.Way) in the pay scale of Rs.4500-7000 were required to be filled as under:
(i) 25% by direct recruitment through Railway Recruitment Boards, with qualification of B.Sc Physics & Maths, Diploma holders in Civil/Mechanical Engineering also being eligible.
(ii) 25% by a limited departmental competitive examination from amongst Gangmen, Keymen and Mates with the qualification of 10+2 with Science and Mathematics and having put in a minimum of three years regular service. Shortfall, if any, to be made good from amongst Gangmen/Keymen/Mates having the qualification of Matriculation HSLC with three years regular service. Further shortfall, if any to be added to the direct recruitment quota at (i) above; and a minimum of three years regular service.
(iii) 50% by promotion of departmental staff having the qualification of Class X Board Examination by seniority-cum-suitability through a written suitability test, shortfall, if any, being added to LDCE quota at (ii) above.
5.After cancellation of the earlier selection process, the Chief Personnel Officer, by letter dated 19.04.2011, clarified the process as under :
Railway Board have already instructed as to how the 50% promotional quota vacancies of Sr.P.Way Supervisors to be filled up as mentioned above, the action initiated by your division to follow different method by calling volunteers and conducting selection similar to the selection post, like LDCE is not in order. This should be rectified immediately.
The employees working in the category of Gangmate and Keyman are only to be considered for promotion on 1:1 ratio by seniority cum-suitability through a written suitability test. Since the employees of gang mate and Keyman are borne on the different seniority units in the P.Way open line field units in divisions, a combined seniority list of such employees are to be prepared and published among the individual employees concerned. The consideration of such employees should be strictly in the order of seniority only subject to other terms & conditions governing such promotions. It may also to be ensured that the employees who are found suitable for promotion as Sr. P.Way Supervisors are sent for medical examination and found fit in A3 medical classification before being posted in the working posts of Sr.P.Way Supervisors.
6.Thus, it is found that the earlier selection process by including Gangmen was incongruous with the rules. The learned Tribunal, after examining all aspects held as under :
16.After cancellation of the earlier selection, the process for selection of Senior Permanent Way Supervisors under 50% promotional quota has been initiated afresh. The number of vacancies at present is 13 instead of 10 vacancies in the earlier occasion. As per the procedure as clarified by the Chief Personnel Officer, Southern Railway, a combined integrated seniority list of Gang mate and Keyman in the different seniority units in the Permanent Way Open line Field Units of Salem Division has been prepared; and it is found that only 12 employees are eligible for consideration in the selection. By letter dated 13.6.2011 addressed to all Senior Section Engineers & Section Engineer/Permanent Way of Salem Division, these 12 employees were alerted to be in readiness for written suitability test. The 3 applicants also come within the field of consideration as per communication dated 13.6.2011 (Annexure R-5). For promotion as Senior PWS, the applicants have to qualify in the fresh written suitability test and satisfy other conditions for empanelment such as fit in AYE THREE medical classification. The decision of the Hon'ble Supreme Court supra is not applicable to the facts of this case.
7.Reliance of the petitioners on Union of India and others Vs. Rajesh P.U. Puthuvalnikathu and another [(2003) 7 SCC 285] is misplaced. It is well settled that wherever it is possible to weed out the beneficiaries of irregularities or illegalities, the authorities may appoint the selected candidates whose selection was not vitiated in any manner. In the case on hand, the entire selection process was not fair in view of the fact that the candidates, who were not eligible, were also considered. Thus, the candidates who were eligible, could not be considered properly, vis-a-vis the other non eligible candidates. The entire selection process was illegal and there was no scope to weed out the beneficiaries, whose appointment was legal and regular. In such view, the entire selection process itself was vitiated. Even otherwise, the petitioners cannot be granted promotion with effect from the date of examination in the first selection process, which was ultimately cancelled. The petitioners became members of the promoted post only after having been selected in the subsequent selection process and their order of promotion was passed.
8.In view of the foregoings, the petitioners are not entitled to any benefit. For the reasons mentioned herein-above, we do not find any infirmity or illegality in the Tribunal's order sought to be impugned in these writ petitions.
9.As a result, both the writ petitions are dismissed. No order as to costs.
(S.K.A., J.) (P.S.N., J.) 25.08.2014 Index : Yes/No vvk To 1.The Chief Personnel Officer, Southern Railway, Chennai-600 003. 2.Divisional Railway Manager/Works/SA, Divisional Office, Personnel Branch, Southern Railway, Salem-636 005. 3.Divisional Personnel Officer, Southern Railway, Salem-636 005. 4.The Registrar, Central Administrative Tribunal, High Court Compound, Chennai-600 104. SATISH K. AGNIHOTRI, J. and PUSHPA SATHYANARAYANA, J. vvk W.P.Nos.6663 and 6664 of 2012 25.08.2014