Central Administrative Tribunal - Bangalore
B. Hampanna And Ors. vs The Chief Personnel Officer, South ... on 30 June, 2005
Equivalent citations: 2005(3)SLJ248(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. Since the question of law involved in these O.As. are common and based on same facts, the same are being disposed of by the present common order.
2. We may note at the outset that O.A. Nos. 142, 143 and 144/2005 were filed by officials belonging to SC/ST communities, and others were preferred by general category candidates.
Facts of the Case
3. Under the rules in vogue, the post of Assistant Divisional Engineer/Assistant Executive Engineer (hereinafter referred as ADE/AEE) in the Railways is to be filled 70% by seniority-cum-fitness, while the rest 30%, based on Limited Departmental Competitive examination. In the present proceedings, we are concerned with 70% quota only. Southwestern Railway, Hubli, vide Notification dated 13.4.2000 proposed formation of a panel for promotion to the post of ADE/AEE against 70% quota for the assessment period 1.5.2004 to 30.6.2006. Number of vacancies notified were SC-5, ST-2 and unreserved-12. The Scheme of examination consist selection comprising a written examination of 150 maximum marks and qualifying marks being 90, besides viva voce. The candidates were required to secure the above noted qualifying marks to become eligible to be sent for medical examination and to appear for viva voce. As per the combined list appended to aforesaid Notification annexed as Annexure-A, 57 employees were eligible to appear for the said selection and by another list annexed as Annexure-'B', 38 eligible candidates were also alerted to be in readiness to appear for the said examination in the event the employees included in the earlier list expressed their unwillingness. All the applicants herein were listed in aforenoted Annexure-A. All the applicants qualified the written examination held on 27.11.2004 and were, accordingly, sent for medical test. The supplementary written examination was also held on 11.12.2004, wherein 2 officials had appeared. Vide communication dated 18.12.2004, 30 officials were declared qualified. Viva voce was fixed for 17th and 18th March, 2005. Vide communication dated 30th March, 2005, 17 officials were placed "on the panel in the order of seniority for promotion to Group-B post of ADEN/ AXEN". As per the Railway Board instructions, the record of service and viva voce carried 50 maximum marks, out of which 30 had been the qualifying marks, and a candidate was required to obtain at least 15 marks in the record of service. The grievance of the applicants is that despite the fact that they were declared qualified in the written examination as well as medical test, they did not find place in the impugned panel dated 30th March, 2005. Their further grievance is that though 5 vacancies were reserved for SC, 2 for ST and 12 for unreserved, yet only 17 officials were empanelled, out of which 6 belonged to SC community, 3 to ST community and only 8 candidates belonging to unreserved category were empanelled against 12 vacancies meant for them.
4. Before proceedings further, in order to appreciate the issues objectively, we may note the relevant rule having bearing, which reads as under:
Extract from Railway Board letter No. E(GP)88/2/111 dated 20.8.1991 dealing with Selections/LDCEs for promotion from Group 'C' to Group 'B'.
"2. The matter has been reviewed with a view to rationalising the procedure and in partial modification of the instructions contained therein, the Board have decided that the following procedure should be followed in the written tests, viva-voce and evaluation of record of service.
II. Selection
Prescribed Paper Maximum Qualifying Remarks
Marks Marks
One paper on 150 90 (Out of 150 marks, the
Professional subject Professional subject
and Estt. And Financial will carry atleast 100
Rules marks)
Note. (1) In the case of S&T Department, the portion relating to professional subject shall be equally divided between (i) Mechanical, Signalling and Land Line communications and (ii) Electrical Signalling and Wireless communication as per the instructions contained in Board's letter dated 4.5.79 and the syllabus circulated therewith shall be followed.
(B) Record of Service and Viva Voce
(both for selection and LDCE)
Max. Marks Qualifying Marks
(1) Viva voce 25 30
(2) Record of Service 25 (including atleast 15 marks
in the record of service)"
Extract from R.B. E.No. 4/2001 dated 16.1.2001 on the Subject: Promotion from Group 'C' to Group 'B'--Awarding of marks against 'Record of Service.'
2. The matter has been considered by the Board and it has been decided that the marks for "Record of Service" should be allotted as detailed below:
(a) Marks corresponding to the grading for the five attributes of Section II of each year's CR should be added up and then the average over five years calculated;
(b) Marks corresponding to overall grading of each year's CR should be allotted and while doing so provisions of Para-4 of Board letter No. E (GP/ 37/2/123 dated 19.9.1998 should be kept in view. Marks for overall grading for five years should be added up.
** Average of (a) and (b) should be taken as the marks for "record of Service."
ANNEXURE-A
Assessment of Record of Service
ACR for Overall Total
the year, grading Grading of Attributes A to E
e.g.
1 2 3 4
A B C D E
1995-96 Good Very Very Good Good Very 4+4+3+3
Good Good Good +4=18
1996-97 Good Very Good Very Good Very 4+3+4+3
Good Good Good +4=18
1997-98 Good Very Average Very Very Good 4+2+4+4
Good Good Good +3=17
1998-99 Very Very Very Good Very Very 4+4+3+4
Good Good Good Good Good +4=19
1999-2000 Very Very Very Very Very Very 4+4+4+4
Good Good Good Good Good Good +44=60
Marks 3+3+3 4+4+4 4+3+2 3+4+4 3+3+4 4+4+3 8+18+17
Allotted 4+4=17 4+4=20 4+4=17 3+4=18 4+4=18 4+4=19 19+20=92
"Average of Attributes A to E = 92 divided by 5 = 18.4
Overall Average = 18.4+17 divided by 2 = 17.7"
Relevant portion of Para-201 and 204 under Chapter II, Section 'A' I.R.E.M. Vol.I dealing with "Rules governing promotion of subordinate staff" read as follows:
"201.1 : All vacancies in Group 'B' are filled by promotion on the basis of selection of eligible Group 'C' employees and also on the basis of Limited Departmental Competitive Examination, wherever the scheme was in force. Where the scheme of LDCE is in force, selection is held to fill 75% of the vacancies and LDCE is held to fill the remaining 25% of the vacancies.
The conditions and procedure governing the Selection for promotion to Group B posts are given in the following paras. Regarding conditions and procedure governing LDCE, the provisions of relevant Recruitment Rules and administrative instructions issued from time to time should be referred to (Amended as per Railway Board's letter No. E (GP) 95/2/75 dated 5.8.97)".
Note : The aforesaid percentage of 25% and 75% respectively were changed to 30% and 70% respectively vide Railway Board letter No. E (GP) 92/2/93 dated 16.11.92.
201.2: Frequency of Selection--Selection for appointment to Group 'B' posts should be held once in two years. Where due to unforeseen developments, such as creation of new posts, upgradation etc., the panel drawn gets exhausted and the biennial selection is away by more than six months a fresh selection may be held. The need for conducting such selections should however, be rare and due care should be taken in working out the vacancies in the normal biennial selection.
Rule 204 deals with Selection Procedure. Relevant portion thus reads:
204.2: The question paper for the written test should have a practical bias i.e. it should be designed to test the ability of candidates to tackle the practical problems they are likely to face rather than their theoretical knowledge. It is in view of this that no syllabus has been prescribed for the written examination except the written examination for the post of Assistant Personnel Officer and the Railways depending on the local conditions/practices should set the paper.
204.6: Personality, Address and Qualities of Leadership should be assessed at the viva-voce test.--In case a written test is not held for adjudging professional ability this should also be assessed at the viva voce through questions with a practical bias.
204.7: Marks for record of service should be given on the basis of Confidential reports and relevant service records. Integrity of character should receive special consideration.
204.8: The successful candidates shall be arranged as follows:
(1) Those securing 80% marks and above grade as 'Outstanding.' (2) Those securing between 60% marks and 79% marks graded as 'Good.' 204.9: The panel should consists of employees who had qualified in the selection, corresponding to the number of vacancies for which the selection was held. Employees securing the gradation 'Outstanding' will be placed on top followed by those securing the gradation, 'good' inter se seniority within each group being maintained.
Reliance was placed on Rule 211, which is under Chapter II, Section 'B'. The title is Rules governing the promotion of Group 'C' staff. The said rule reads thus :
211: Definitions:
1. Promotion includes promotion from a lower grade to a higher grade, from one class to another class, from one group to another group.
2. Non-selection posts' are posts, grades or classes which have not been declared as 'selection posts'.
3. 'Selection posts' are posts, grades or classes which have been declared as such by the Railway Board and to which promotion are made on the basis of a positive act of selection as per procedure in force for filling up the selection posts."
Extract from Railway Board letter No. 99-E(SCT)1/25/13 dated 7.8.2002 reads as under:
"Since of the Zonal Railways has raised doubts regarding Para-(i) of the above quoted letter and sought a categorical clarification as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications is to be adjusted in the post based roster.
In this context, it is clarified that in selection posts, SC/ST candidates who are selected by applying the general standard and whose names in the select list/panel appear within the number of unreserved vacancies are to be treated as selected on their own merit. For example, suppose there are a total of 10 vacancies for which a panel/select list is to be prepared, out of them, six vacancies are unreserved and four are reserved for SCs/STs. First six candidates in the select list/panel who have been selected by applying the general standard will be adjusted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC or ST category. SC/ST candidates selected for remaining four reserved vacancies, whether selected on general standard or by giving relaxations/concessions, as per existing instructions on the subject, shall be adjusted against reserved vacancies. Similarly, in case of non-selection promotions, SC/ST candidates who are senior enough to be within the number of unreserved vacancies and are included in the panel/selection list without getting any relaxation/concession will be treated as own merit candidates."
(Emphasis supplied).
Applicants Case
5. As far as the applicants belonging to SC/ST categories are concerned, their contentions are that since they have not received any adverse remarks and their service being without any blemish record and having performed well in viva voce, should have been empanelled for the said post of ADE/AEN, that the respondents No. 3, 4, 5 and 6 (in O.A. 142/05 were facing various allegations and not holding good record of service and accordingly should not have been empanelled; that the applicants were subjected to medical test and therefore, they were under the bona fide impression that they had been selected finally by the respondents for the post in question; that Para-207.1 of the IREM which deals with the supplementary selection clearly stipulates that not more than one supplementary selection should be held to cater to the absentees and care and caution should be exercised while holding such supplementary selection, which should not be resorted to as a matter of routine. Since the respondents conducted supplementary examination as evident from communication dated 18.12.2004 on 11.12.2004, such procedure adopted by the official respondents was irregular, arbitrary and discriminatory and based on extraneous consideration. It was further contended that the mandate of Para-202.1 of IREM Vol. I dealing with the composition of Selection Committee was flouted in as much as its composition was not done in accordance with the aforesaid para; that the viva voce was not conducted separately for the reserved category candidates which was also violative of Articles 14, 16 and 21 of the Constitution of India. Since none secured more than 80% marks in the written examination and thereby not graded as Outstanding, the method of recruitment acquire the shape as if it was non-selection posts.
6. The contentions raised by general category candidates are that there had been over representation of SC/ST categories in as much as though the vacancies reserved for SC/ST category were 5 and 2 respectively, but in fact 6 and 3 candidates belonging to the said categories respectively were appointed. In other words, as only 8 persons belonging to general category were empanelled against 12 vide impugned communication dated 30th March, 2005, though the outer limit prescribed for reservation is 50%. The candidates belonging to SC/ST communities were adjusted against the general vacancies thereby reducing the chances for candidates belonging to general category, which act of the respondents, under no circumstances, could be justified. As far as the case of the applicant in O.A. No. 180/2005 is concerned, it was urged that had the respondents filled all 12 vacancies meant for general category from the candidates belonging to said category, he having passed the written examination as well as medical test besides viva voce should have been appointed particularly, when he figured at Sl. No. 19 out of 30 candidates declared qualified in the written test, and further the fact that Mr. R. Meena who was placed at Sl. No. 18 in the said communication had failed based on overall performance. It was further contended that in the final list of employees eligible to appear for the said selection and appended as Annexure-A to the notification dated 21st September, 2004, the applicant was shown at Sl. No. 40 while R. Meena and M. Abdul Rahim figure at Sl. Nos. 38 and 39 respectively. As noticed herein above, R. Meena though had qualified in the written examination but could not be included in the panel having failed based on overall performance while M. Abdul Rahim was not able to qualify written examination. T.S. Suraj Kumar who was placed at Sl. No. 37 in the aforesaid communication dated 21st September, 2004 was the last general category candidate placed in the impugned panel. Had the 12 vacancies meant for general candidates were not diverted and filled up from SC/ST category candidates, there was no occasion for the applicant to miss the bus. In any event all the 19 vacancies notified on 13.7.2004 have not been filled up. Therefore, direction should be issued to appoint him.
Respondents Case
7. The official respondents by filing their detailed reply contested the O.As. Despite service, private respondents neither appeared nor representation was made on their behalf. The official respondents raised preliminary objection stating that the O.As. suffer from nonjoinder of necessary parties as all the officials empanelled vide impugned communication dated 30th March, 2005 were not impleaded. On merits, it was stated that pursuant to notification dated 13.7.2004, for taking step to fill up 12 general, 5 SC and 2 ST vacancies; out of 57 eligible employees, only 52 appeared for said selection in the written examination as well as supplementary examination. The selection was held following the procedure prescribed under the extant rules and instructions; that the candidates belonging to SC/ST communities were imparted pre-selection training; that the selection was held in terms of Railway Board instructions communicated vide letter dated 20th August, 1991 and the post in question was a selection post. 50 candidates appeared for the examination, which was conducted on 27.11.2004 and 2 candidates attended the supplementary examination conducted on 11.12.2004. 5 employees expressed their unwillingness to appear. The two officials who appeared for supplementary examination however, did not qualify in the written examination. 30 candidates secured the prescribed qualifying marks in the written examination, i.e. 90 out of 150 marks and since the post in question is a Group 'B' safety category post, no relaxation of qualifying marks was permissible even in respect of candidates belonging to reserved community. The applicants having not secured 30 marks out of 50 under the heading viva voce as well as record of service were not found suitable by the DPC for empanelment and therefore, their names were not included vide impugned panel dated 30th March, 2005. None of the 17 employee--who were included in the aforesaid panel were either under suspension or facing departmental/criminal proceedings and therefore, there was no impediment to include their names in the panel. The allegations against respondent Nos. 3-6 were denied and it was specifically pointed out that none of them had been under cloud. As far as respondent No. 4 is concerned, it was specifically stated that he was only a prosecution witness in a CBI case and not an accused, as alleged. Mr. N.S. Prasad, learned Standing Counsel for the Railways pointed out that the applicant in O.A. 142/205 is facing major penalty proceeding initiated in the year 2004, which fact has been deliberately suppressed by him. In terms of Railway Board letter dated 7.5.2004, which is a reproduction of DOP&T O.M. dated 11th July, 2002, it was clarified that for selection post, SC/ST candidates selected by applying general standard and whose names appear in the select list/panel within the number of unreserved vacancies, are to be treated as selected on their own merits. For ex: If there are total of 10 vacancies for which a select list/panel is to be prepared and out of it 6 vacancies are unreserved and 4 are reserved for SC/ST, the first 6 candidates in the select list/panel who have been selected by applying general standard will be adjusted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC/ST community. SC/ST candidates selected for remaining 4 reserved vacancies, whether selected on general standard or by giving relaxation/concession should be adjusted against reserved vacancies. Following the aforesaid O.M., it was stated that the first 12 officials in the order of their seniority, were placed on the panel vide communication dated 30th March, 2005 irrespective of the fact whether they or some of them are SC/ST and were accordingly adjusted against 12 unreserved vacancies. Rest of the 7 vacancies so notified were assigned to SC/ST communities. In fact, only 5 vacancies were filled from SC/ST communities in contrast to 7 vacancies reserved for them. In other words, one each of SC and ST vacancy remain unfilled. The DPC was constituted by the General Manager as per the extant instructions and therefore, there was no justification in the applicants contention. It was further contended that it was not mandatory that the candidates belonging to reserved community should be interviewed separately.
8. Mr. B. Veerabhadra, learned Counsel for the applicants, except in O.A. 180 /2005, during the course of oral hearing reiterated the aforesaid contentions. We heard learned Counsel Mr. S.P. Kulkarni for applicant in O.A. No. 180/2005 as well as Mr. N.S. Prasad, learned Standing Counsel for Railways and perused the pleadings besides the original records relating to the said selection process. We shall now examine the contentions so raised.
9. Mr. N.S. Prasad, learned Standing Counsel for the Railways vehemently opposed the applicants claim and reiterated the preliminary objection about the non-joinder of necessary parties.
10. Expanding the arguments it was urged that since all the 17 officials empanelled vide impugned panel dated 30th March, 2005 remain unimpleaded, the mere fact that few of them were impleaded as respondents would not make any difference and accordingly the O. As. should be dismissed. The concept of necessary and proper parties has been explained by the Court time and again. On perusal of the Memo of parties, particularly with reference to O.A. 142/2005 as well as O.A. 180/2005, we find that various other officials besides S/ Shri S.P. Bankapur and Jagadev Prasad belonging to SC/ST community respectively, who alone would have been affected by the challenge in the present cases have already been impleaded in these proceedings. Therefore, we find no justification in the contention raised by the respondents, particularly when the alleged undue benefits conferred on officials belonging to reserved category could be segregated by this Tribunal with reference to number of vacancies reserved for them as well as the persons brought on panel. It is not necessary that each and everyone included in the panel should invariably be impleaded as parties in judicial proceedings. The requirement of law is that a necessary party without whose assistance, adjudication cannot be made properly should alone be impleaded as party to the litigation. If the applicants contention that one candidate each belonging to ST/SC community, have encroached upon their right, as against 5 and 2 vacancies notified for them respectively, 6 and 3 candidates have been appointed, only one candidate each belonging to said category is a necessary party. Moreover, when the selection process itself has been challenged, impleadment of some of them going to be affected in a representative capacity is sufficient for proper adjudication of the case. Therefore, we over rule such objection raised by the respondents and proceed with the merits of the case.
11. The first and foremost contention of the learned Counsel for the applicants is that the Selection Committee was not constituted as required under Para 202.1 of the IREM Vol. I. On a pointed query raised by the Bench as to what was required composition under the said para and what had been the actual composition of the Selection Committee, the learned Counsel could not furnish any satisfactory reply. In our considered view, the said contention is bald allegation, without any material and particulars. Unless and until one gets the details as to what should be the composition under the rules vis-a-vis what had been the factual aspect, such a contention cannot be examined and considered by the Court. In the absence of complete material on this aspect, we do not find any justification in the said contention and accordingly, it is overruled.
12. The further contention raised by the applicants that the selected candidates i.e. S/ Shri Ghana Shyam Pradhan, Basanth Kumar Raula, R. Hanumanthappa, A Srinivas Rao and Jagadev Prasad, should not have been included in the impugned panel as they were either facing the departmental proceedings/criminal action and were under cloud is concerned, we find that the said allegations are far from truth and not tenable particularly, when detailed submissions were made with respect to each of such official. It was the specific case of the respondents that none of the private respondents, i.e., selected officials "are undergoing any penalty". As noticed herein above, Shri Basant Kumar Raula was only a prosecution witness and was not facing any criminal prosecution. Similarly, R. Hanumanthappa against whom the allegations of holding not good records were made, it was found that he had secured more than the required marks and as such the allegations made were baseless. No proceedings were initiated for the alleged loss committed by A. Srinivasa Rao. As neither audit objection nor recovery of any dues was pending on date of finalisation of the selection, no disciplinary action was taken against him. Similarly, for the allegations against G.S. Pradhan, the respondents clarified that on the Inspection note regarding non-realisation of credit pertaining to note dated 25th May, 1994, the matter is still under correspondence with the department. Though from the pleadings we find that Shri Jagadev Prasad was also impleaded as respondent No. 7 in certain cases but there was not even an averment as to how he was ineligible. On consideration, we find that the allegations made against the said private respondents were vague and far from truth, without any material particulars.
13. Mr. N.S. Prasad, learned Counsel for the respondents also contended that DOP&T O.M. dated 11.7.2002 as well as Railway Board order dated 7th August, 2002 being a policy of the Government, its judicial review is outside the purview of this Tribunal. It was further contended that there had been a rationale behind such policy and there had been no illegality in the selection process and method adopted. Reliance was placed on Chief Commissioner (Admn.) and Commissioner of Income Tax, Delhi and Ors. v. K.C. Sharma and Ors., . Similarly, it was contended that the aforesaid selection process has been upheld by this Tribunal by dismissing O.A. No. 685/2004 on 12th January, 2005. It was further contended that the bald allegation of bias were raised by the applicants without any material facts and, in fact, there had been no justification in the said contention. Therefore, it was urged with reference to , Siyaram v. Union of India and Ors. that such allegation should not be entertained.
14. We have also carefully perused the original records relating to selection for the aforesaid post as produced by the learned Counsel for the respondents and find that those candidates who had secured prescribed marks in viva voce as well as record of service under rules and declared qualified in written exam, were included vide panel dated 30th March, 2005. We are also satisfied that the procedure followed in the said selection process was free from any bias attitude and the said selection made was strictly in terms of the provision of IREM as well as notification issued from time to time.
15. On bestowing our careful consideration to the said part of the para, as extracted herein above, we are of the view that since it is not denied by the applicants that there had been a written test of 150 marks, the said Para 204.6 is inapplicable. The mandate of the said para is applicable only when written test is not held for adjudicating professional ability, which is not the fact in the present case. An half hearted attempt was also made to contend that the written test should have a practical bias and for this reference was made to Para 204.2 of IREM, Vol. I. In our considered view, when the applicants appeared in the written test as well as viva voce without any demur and when all the steps of the selection process stand exhausted, they cannot be allowed to raise the said contention at this belated stage. If the applicants had some grievance about the standard of the written test, riot having the practical bias, etc., they ought to have raised such issues immediately thereafter and should not have awaited to raise it after they were declared unsuccessful. Accordingly, the said contention also fails and is rejected.
16. For allegation regarding supplementary selection conducted on 11.12.2004 and thereby vitiating the entire selection process, we find that Para 207.1 and of IREM Vol. I itself contemplate for such supplementary selection in the given circumstances. Moreover, two officials who appeared in the said supplementry written examination having failed in the said examination itself will make no difference to the outcome of the said selection process and, therefore, we do not wish to enter into this academic question.
17. Coming to the next contention i.e. that the applicants having passed the written as well as medical examination should have been included in the panel notified on 30th March, 2005 and there was no reason and justification in excluding their name, we may note that Para 204.1 of IREM, Vol. I deals with the selection procedure. Para 204.1 prescribes marks to be allotted to the qualifying examination as well as viva voce and record of service. Mr. Veerabhadra, learned Counsel by making reference to Para 204.6 strenuously contended that when a written test is not held for adjudicating professional ability, the same should be assessed at the viva voce through questions with a practical bias, which mandate has been flouted by the respondents in as much as the question put to the candidates at viva voce were not connected with practical bias. This contention was seriously disputed by the respondents.
On consideration, we do not find any substance in the contention as no such grievance was raised at an earliest opportunity.
18. Mr. B. Veerabhadra, learned Counsel appearing for the applicants vehemently argued that since no one was declared 'outstanding' and all the selected candidates were declared 'Good' and such being the fact, the vacancies reserved for SC/ST should have been filled up firstly from the eligible SC/ST candidates and only thereafter the vacancies meant for general candidates should have been filled. Taking clue from Para 204.9 that panel should consist of employees who had qualified in the selection corresponding to the number of declared vacancies maintaining their inter se seniority within each group, it was urged that in the present case though only 5 and 2 vacancies were reserved for SC/ST respectively, but the official respondents exceeded the said limit and appointed 6 and 3 candidates respectively from the said community, which also exceeded the maximum limit of 50% reservation in terms of the law laid down by the Hon'ble Supreme Court. Mr. S.P. Kulkarni, learned Counsel appearing for the applicant in O.A., No. 180/2005 also vehemently contended that Sl. Nos. 13 and 17 belonging to ST and SC community respectively in the impugned panel dated 30th March, 2005 were in excess of the limit prescribed and therefore, their selection should be declared null and void.
19. The question which now fall in narrow compass is whether it is necessary to fill the vacancies meant for general categories from a normal seniority list having representations from all communities or the vacancies meant for SC/ST communities should be filled up first from the officials belonging to such category carving out a special seniority list out of a general seniority list. We may note at the outset that the 17 persons who alone have been empanelled vide the impugned notification dated 30th March, 2005 had been declared successful in written examination as well as viva-voce and their name were included in the order of their seniority as reflected under Annexure-A to the notification dated. 13.7.2004. As we have already noticed herein above that those securing 80% and above were to be graded 'Outstanding' and those securing between 60% to 79% marks were to be graded as 'Good' under Para 204.8, IREM Vol. I and the candidates securing the gradation 'Outstanding' were to supersede those securing the gradation 'good', however, retaining their inter se seniority within each group. Merely because the successful candidates did not secure 'Outstanding' gradation and all of them secured only 'Good' gradation, could not mean that the mode of recruitment, being the selection post, cannot change the colour and that too in the mid stream of selection process and treated as non-selection post. In our considered opinion, the applicants contention that Para 211 is applicable in the facts of the present case is misconceived and misplaced for the reasons that the said para falls under Chapter II Section 'B', which deals with the rules governing the promotion of Group 'C' staff. We are not concerned with Group 'C; post in the present case. Para-210 under the said Section 'B' are applicable in respect of promotion of non-gazetted Group 'C', which is not the fact in the present case as we have already noticed that the post in question, ADE/AEE is a Group 'B' post and the notification dated 13.7.2004 itself make it clear that it involves "selection" based on written examination, medical examination as well as viva voce and further Rules under Section 'A', Chapter II, IREM, alone are applicable. Therefore, we are of the view that the post in question is and remain selection post. No rule, instruction or law has been brought to our notice which mandates that when vacancies are notified comprising of all group and categories i.e. reserved as well as unreserved, the reserved vacancies should be filled first. There is no rule or law, which require maintenance of different seniority list in the given cadre based on caste and communities. When a consolidated and single seniority list is to be maintained in the given cadre, the seniority, subject to the element of merit has to be followed for the selection post. We find substance in the contention raised by Mr. N.S. Prasad, learned Counsel for the respondents that Railway Board letter dated 7th August, 2002 is pari materia to DOP&T O.M. dated 11th July, 2002 which is specific deal as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation is to be adjusted in the post based roster. It is undeniable fact in the present cases that S/Shri P. Selvam, Shri P.B. Manjunathappa and A Chennarayappa who figure at Sl. Nos. 1, 6 and 8 respectively in the impugned panel dated 30th March, 2005 were at Sl. No. 2, 23 and 25 respectively under Annexure-A to notification dated 13th July, 2004, i.e. the list of eligible employees. It is also not denied that the said officials were declared qualified in the written test examination vide communication dated 16.12.2004 and their name appeared at Sl. Nos. 1, 11 and 13 respectively. It is also an admitted fact that the said candidates were selected by applying the general standard and not based on any relaxation/ concession. We may also note the fact that the applicants have not challenged the Railway Board order dated 7th August, 2002 as extracted herein above. Thus, we fail to see any reason in the applicants contention that when the SC/ST candidates are selected by applying general standard how they could be adjusted against the vacancies meant for reserved category. The respondents were justified, in our considered view, to follow the mandate of Railway Board order dated 7th August, 2002. When we examined this issue from another aforesaid angle also, we do not find any excess representation made in the said cadre from candidates belonging to SC/ST communities, and therefore, we find no substance in the applicants contention that there had been excess representation being exceeding 50% of the maximum limit prescribed as per the law laid down by the Hon'ble Supreme Court. Accordingly, we do not find any justification in the applicants contention and over-rule the same.
20. In view of the analysis of facts vis-a-vis the rule and law on the said subject, we do not find any merit in the present O.As. and the same are found to be bereft of any merit, and dismissed. No costs.