Central Administrative Tribunal - Hyderabad
T.V. Subrahmanyam, Assistant Station ... vs Union Of India (Uoi) Represented By The ... on 4 May, 2007
ORDER Bharati Ray, Member (J)
1. This application has been filed by the applicants seeking for the following relief:
To call for the records pertaining to the Senior Divisional Personnel Officer, letter No. B/P608/VI/1/Tfc. APP/LDCE dated 24.09.2005 containing the list of eligible and ineligible candidates and the impugned memorandum No. B/P. 608/VI/1/Tfc. APP/LDCE dated 28.08.2006 issued by the Senior Divisional Personnel Officer, South Central Railway, Vijayawada and declare that the action of respondents in considering the private respondents names from 4 to 8 as eligible to appear for the selection of Traffic apprentice as illegal and arbitrary and set aside the Memorandum No. B/P.608/VI/1/Tfc. APP/LDCE dated 28.08.2006 to the extent of the private respondents 4 to 8 by declaring that the same as arbitrary illegal and violative of Constitutional provisions and consequently direct the respondents to prepare the select list of the eligible candidates in accordance with merit by including the names of the applicants in the panel.
2. The undisputed facts of the case are that in order to form a panel by holding selection to the post of Traffic Apprentice in scale of Rs. 5500-9000 against 10% Limited Departmental Competitive Examination (in short LDCE) of BZA division, the 3rd respondent has issued a notification vide letter No. B/P.608/VI/1/Tfc.App/LDCE dated 25.07.2005 inviting applications from the eligible group 'c' employees of Operating department (other than Ministerial cadres) who are graduates and not over 40 years of age in the case of UR employees and 45 years in the case of SC/ST employees, as on 1.7.2005.
3. It is evident from the above notification dated 25.07.2005, enclosed as Annexure A-1 at page 13-14 of the OA that the following eligibility conditions were stipulated to be fulfilled to appear for the written examination:
a. Should be a graduate from recognised University.
b. A diploma in Rail Transport Management fro the Institute of Rail Transport/NDLS will be a desirable additional qualification.
c. The erstwhile staff of BZA Division, those who are presently working in the territorial jurisdiction of the newly formed GNT Division and whose lien is being maintained in BZA Division seniority units of operating department on exercising option to parent division are only eligible to apply for the post. Other staff of GNT Division are not eligible for apply.
4. In para-5 of the said notification it was made clear that the employees selected as Traffic Apprentices are required to undergo training as Traffic apprentice, Aptitude test as per rules in vogue. The 3rd respondent vide letter No. B/P.608/VI/1/Tfc.APP/LDCE dated 24.09.2005 issued the list of 97 eligible employees to appear for the written examination which is enclosed as Annexure A-2 at page 15-18 of the OA. At page 18 of the OA there is a list of 4 ineligible employees and the list is marked as Annexure-II to the letter dated 24.09.2005 (supra). The employee at sr. No. 4 is declared ineligible for the reason that he is already working in the post of Dy.SS in 5500-9000 Grade. The applicants are at Sr. No. 38 and 39 of the list of eligible employees (page 17) whereas the private respondents are at sr. No. 86 to 90 of the said list. The 3rd respondent vide its letter No. B/P.608/VI/1/Tfc.APP/LDCE dated 21.12.2005, declared 50 employees qualified in the written examination conducted on 03.12.05 in connection with the selection for the post of Traffic Apprentice in scale of Rs. 5500-9000 RS(RP) against 10% quota, which is enclosed as Annexure A-4 at page 20 of the OA. The applicants are at Sr. No. 18 and 19 whereas the private respondents are at sr. No. 45 to 49 of the said list. It is the case of the applicants that when the applicants qualified in the written examination and found place in the list of selected employees at sr. No. 17 and 18, and are senior to the private respondents, a memorandum No. B/P.608/VI/1/ Tfc.App/LDCE dated 28.08.2006 was issued by 3rd respondent declaring a panel of 19 employees who were found suitable for promotion to the post of Traffic Apprentice in the scale of pay of Rs. 5500-9000 and the same is enclosed at page 22 of the OA as Annexure A-5 without including the name of the applicants herein.
5. It is the grievance of the applicants that private respondents who were down in the list of eligible candidates and the list of qualified candidates, are placed at the top of the panel at sr. No. 1 to 5 and the applicants who are at sr. No. 17 & 18 in the eligibility list have not found place in the said panel. The applicants therefore submitted that the said panel has not been prepared as per rule/instruction. Assailing the said memorandum dated 28.08.2006 issued by the 3rd respondent and the letter dated 24.09.2005 containing the list of eligible and ineligible candidates issued by the 3rd respondent applicants have approached this Tribunal seeking for the above relief.
6. The learned Counsel for the applicants have drawn our attention to para 3 and 4 of the counter reply filed by the respondents to show that the respondents therein admittedly stated that private respondents were selected to the post of Goods Guard in scale Rs. 4500-7000 RS(RP) during 2002 and that the applicants came to the scale of Rs. 4500-7000 RS(RP) during 1999, i.e. much prior to the private respondents. It is, therefore, the contention of the learned Counsel for the applicants that it is an admitted position that in the said scale of pay of Rs. 4500-7000 the applicants are senior to private respondents and therefore they are placed above private respondents both in the list of eligible candidates as well as selected candidates as can be evident from the list enclosed at page 16 to 18 and 20 to 21 of the OA. That being the position, when the applicants are senior to the private respondents in the pay scale of Rs. 4500-7000 and were qualified in the written examination the respondents are not justified in arranging their names in the order of their equivalent grade wise seniority with no regard to the marks secured by them instead of arranging the names in the order of merit to determine the most meritorious candidate and then declare the select list with due regard to the post based roster and therefore the panel prepared by the respondents is illegal and violative of Article 14 and 16 of the Constitution. It is also the contention of the learned Counsel for the applicants that the very act of the respondents in not including the names of the private respondents 4 to 8 in the list of ineligible candidates and allowing them to appear for selection of Traffic apprentice is in violation of S.C. No. 295/1999 and is illegal, arbitrary and in violation of articles 14 and 16 of the Constitution. Referring to the judgment of the Hon'ble Supreme Court in the case of M. Ram Jaya Ram v. G.M. SC Railway , learned Counsel for the applicants submitted that when all the candidates called for competing for the examination are from different categories like Station Masters, Trains Clerks, Guards, from different grades and different seniority units, determining a common seniority among those candidates is against the law laid down by the Apex court in the said judgment. He therefore submits that the action of the respondents in not considering the merit of the applicants herein and not enlisting their names in the impugned memorandum is against law of the land. He also referred to the judgment in the case of Union of India v. Y.V. Narasimha Rao and submitted that since employees from different seniority units are called for the selection their seniority can never be equated as they belong to different categories.
7. Drawing our attention to Annexure-II to the letter dated 24.09.2005 at page 18 of the OA, learned Counsel for the applicants submits that one SK Ahmed who is at sr. No. 4 in the list of ineligible employees is made ineligible for the reason that he is already working as Dy. SS and drawing the scale of Rs. 5500-9000 grade. Therefore, if the pay scale of the applicants is equated with scale of Rs. 5500-9000, they become ineligible for consideration for the purpose of promotion to the post of Traffic Apprentice in the scale of Rs. 5500- 9000. Therefore, in no way their pay scale can be equated with the pay scale of Rs. 5500-9000 for any purpose. He further submits that in fact, only at the final stage, the respondents have equated their scale with the scale of pay of Rs. 5500-9000 and arranged their name at the top of the list which, is not permissible under rule/ instruction.
8. Respondents have contested the application by filing a counter reply. Respondents have admittedly stated that a positive act of selection was initiated vide notification dated 25.07.2005 calling eligible volunteers from Operating department fulfilling the conditions stipulated therein to fill up 20 (UR-11, SC-03 & ST 02) vacancies of Traffic Apprentices in scale Rs. 5500-9000 (stipendiary scale Rs. 5000-5150) against 10% LDCE and that out of 102 volunteers, 98 were found eligible to be called for the written examination. It is the contention of the respondents that of the above said eligible volunteers, 86 were from non-running cadre of Assistant Station Master & Trains Clerk and 12 were from Traffic Running Goods Guard cadre. Out of the remaining 04 volunteers, 03 were found ineligible due to age factor as on 01.07.2005 and the remaining 01 employee was found ineligible since he had already been working on regular basis as Deputy Station Superintendent in scale Rs. 5500-9000. A written examination was conducted on 03.12.2005 and 50 employees i.e. 44 from non-running cadre and 06 from traffic running cadre have qualified in the written examination and the results were published vide proceedings dated 21.12.2005. They were subjected to final assessment on "General Post" selection basis. On 28.08.2006, a select panel comprising of 19 employees (UR-15, SC-03, ST-01) in the order of inter-se seniority from amongst those secured 60% marks in professional ability and 60% marks in the aggregate was drawn in terms of Para-219(j) of Indian Railway Establishment Manual, Vol.I, 1989. Against the remaining 01 ST vacancy, no ST employee qualified to be placed on the select panel. It is, therefore, the case of the respondents that in terms of provisions contained in para 219(g&i) of Indian Railway Establishment Manual, the procedure for conducting the selections including the drawing up of the final panel, for filling up "General Selection" posts i.e. those outside the normal channel of promotion for which the eligible staff of different categories/Departments are called, is the same as that applicable to the selections held for filling-up the "Selection" posts in normal channel of promotion as laid down in sub-para 219(g,h & j) of the Manual. It is also fairly submitted by the respondents that, however, the above procedure for filling-up general selection posts has been reviewed pursuant to Hon'ble Supreme Court order and judgment dated 12.03.1996 in M. Ram Jayaram v. General Manager, South Central Railway and Ors. 1996 (1) SC SLJ 536 holding inter-alia that in the impugned selection for appointment to the post of Law Assistant it is illegal to award marks for seniority. The Ministry of Railways have accordingly decided to modify the existing procedure vide Clause (I & iii) of Para 219(j) of the Manual for filling up General Selection posts for which staff of different categories/ departments fulfilling the conditions are eligible to volunteer, as follows:
i) 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 written test and in a few cases viva-voce test also as indicated in sub-para (a) of Para 215. The various factors of selection and their relative weight will be as indicated below:
Factors /Headings Maximum Marks Minimum Marks
1. Professional ability 50 30
2. Personality, Address
Leadership and academic
qualification 30 -
3. Record of service 20 -
ii) The final panel should be drawn up in order of seniority from amongst those secure a minimum of 60% marks in the professional ability and 60% marks in the aggregate, provided that those securing a total of more than 80% marks will be classes as outstanding and placed at the top of the panel in order of seniority.
9. They have also enclosed the Serial Circular No. 12/99 containing circular letter No. P(R)436/IREM/Vol.III dated 07/08.01.99 containing copy of Board's letter No. E(NG)1-98/PM1/11, dated 16.11.98 (Annexure R.II to the counter reply). They have further stated that Railway Board instructions were further modified vide Board's letter dated 07.08.2003 and the 15 marks earmarked for viva-voce stands added to the written examination marks in professional ability i.e. from 35 to 50 in view of dispensing with viva-voce in departmental selections. The Board instructions dated 07.08.2003 communicated under Serial Circular No. 144/2003 is enclosed as Annexure R.III to the counter reply. It is, therefore, the contention of the respondents that the select panel dated 28.08.2006 has been correctly drawn in the order of seniority from amongst those who secure a minimum of 60% marks in the professional ability and 60% marks in the aggregate, provided that those securing a total of more than 80% marks will be classed as outstanding and placed at the top of the panel in order of seniority. It is the contention of the respondents that no one has secured more than 80% of marks in the said examination.
10. In regard to the private respondents No. 04 to 08, it is the case of the respondents that they have been placed at Sr. No. 01 to 05 of the select panel dated 28.08.2006 by equating their pay scale of Rs. 4500-7000 in the Goods Guard cadre to stationary scale of Rs. 5500-9000 in terms of Railway Board instructions dated 01.10.1999 communicated under S.C. No. 295/1999. In this context the learned Counsel for the respondents has submitted that the context in which a word conveying different shades of meaning is used is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author. It is, therefore, the contention of the learned Counsel for the respondents that in order to ascertain the meaning of instruction, the language of the provision and the object intended to be served thereby is to be carefully considered. In support of his contention he has referred to the judgment of the Apex Court in the case of S.B. Mathur and Ors. v. Hon'ble the Chief Justice of Delhi High Court and Ors. reported in AIR 1988 SC 2073. Learned Counsel for the respondents therefore submits that in order to understand the meaning of Sr. circular No. 295/1999 the same has to be read with serial circular No. 98/79 which reads as under:
Complaints have been received from time to time from running staff that when they have to compete for promotion with non-running categories they are often not selected and placed on the panels or get very low positions on the panels because of their scale of pay being the lowest among the other eligible categories. The Railway Board have after careful consideration decided that this disadvantage should be removed by adding to the pay scales of the running staff roughly 30% of the same (in lieu of running allowance) for promotion/selections. The occasion for comparison normally arises in the following grades, where equivalence of grades should be taken as below:
Actual scale Scale of stationary
category to be treated as
equivalent after adding 30%
Guard 'A' Spl. Rs. 425-640) Rs.550-750
Guard 'A' Rs. 425-600)
Guard 'B' Rs. 330-560 Rs. 455-700
Guard 'C' Rs. 330-530 Rs. 425-640
Drivers 'A' spl. Rs. 550-750)
Drivers 'A' Rs. 500-700) Rs. 700-900
Drivers 'B' Rs. 425-640 Rs. 550-750
Drivers 'C' Rs. 330-560 Rs. 445-700
11. He further submits that the applicants who participated in the written examination and never objected during the course of selection about the eligibility of the private respondents, cannot now question the same and the court cannot interfere with the selection on the basis of allegation raised by the unsuccessful candidates. He has also raised objection in regard to the failure on the part of the applicants in not impleading the parties likely to be affected if there is any change in the panel.
12. Heard Mr. KRKV Prasad, learned Counsel for the applicants, Mr. K. Narahari, learned Counsel for official respondents and Mr. K.S. Murthy for respondent No. 8. We have gone through the facts of the case and material papers placed before us. We have also gone through the relevant records produced by the learned Counsel for the respondents.
13. In view of the above facts and circumstances the question that arises for consideration is as to whether the respondents are justified in placing the private respondents above all the selected employees by equating their pay scale of Rs. 4500-7000 in the Goods Guard cadre with stationary scale of Rs. 5500-9000 in terms of Railway Board instruction dated 1.10.99 communicated under serial circular No. 295/1999.
14. A perusal of list of eligible candidates and qualified candidates enclosed along with the OA at pages 16 to 18 and 20 & 21 would show that the applicants and the private respondents were working in the pay scale of Rs. 4500-7000 at the time when the notification was issued on 25.07.2005 by the respondents to fill up the post of Traffic apprentices in the scale of Rs. 5500-9000 RS(RP) against 10% LDCE quota. The very fact that both the applicants as well as the private respondents were included in the list of eligible candidates, shows that they have fulfilled the eligibility conditions stipulated in the notification dated 25.7.2005. Therefore, it is no one's case that although the private respondents otherwise fulfilled the eligibility conditions mentioned in para (3) but were not eligible so far their pay scale they were carrying at the time when the notification was issued. In fact, they and applicants were in the same pay scale at that time.
15. As rightly pointed out by the learned Counsel for the applicants that official respondents in para 3 and 4 of their counter reply have stated that the private respondents came to the pay scale of Rs. 4500-7000 during the year 2002 whereas the applicants came to the pay scale of Rs. 4500-7000 in the year 1999. Therefore, the private respondents cannot be said to be senior to the applicants in the said pay scale. It appears that the private respondents have placed down below the list of eligible candidates and the selected candidates because of the reason that they came to the pay scale of Rs. 4500-7000 much after the applicants. It is, therefore, not the case that the pay scale of the private respondents who belong to running category was lowest among the other eligible candidates. As mentioned above that the applicants and private respondents were in the same pay scale when the notification was issued. That being so, it is admitted position that the private respondents did not have any disadvantage because of their pay scale of Goods Guard to compete for promotion with non running category candidates. Therefore, the instruction 98/79 which was issued to remove such disadvantage, has no application in their case. Therefore, as rightly said by the learned Counsel for the respondents that in order to understand the expression used in different sections of even clauses it must be ascertained from the context of the scheme of an act, the language of the provision and the object intended to be served thereby. Had the respondents read the instruction contained in serial circular No. 295/1999 along with 98/79 properly the object of issuing such instructions would have been clear to them and could understand that the circular No. 295/99 is not applicable in this case. Moreover, we find that in the impugned panel dated 28.08.2006, nothing has been mentioned that the said panel was prepared by applying the Board instruction No. 295/1999. It is clearly mentioned that the employees mentioned in the memorandum were found suitable as a result of written examination conducted on 03.12.2005 and perusal of records by committee on 24.08.2006. The respondents cannot add something more to what has been there in the order by way of filing counter reply. In this context it is pertinent to mention that in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi the Hon'ble Supreme Court has held that:
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order in the beginning may by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.
16. In the said case the Apex Court has referred to the following observation of the Hon'ble Supreme court in the case of Gordhandas Bhanji :
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
17. It is also required to be noted that the equivalent grade of Goods Guard is Rs. 5500-9000 is also the grade of Traffic Apprentice for which the panel was proposed to be formed as per notification dated 25.07.2005.Therefore, if the pay scale of the private respondents is equated with stationary scale of Rs. 5500- 9000 in terms of Railway Board instruction dated 01.10.99, under serial circular No. 295/99, they will become ineligible for the purpose of selection. In this connection it will not be out of place to mention that while filling up the post of Welfare Inspector Gr.III in the pay scale of Rs. 5000-8000 the following eligibility criteria was fixed:
Eligibility Criteria : The following staff will be considered eligible to volunteer for appearing in the selection for promotion to the post of Welfare Inspector Gr. III in the pay scale of Rs. 5,000-8,000:
(i) Group 'C' staff in possession of any of the following qualifications irrespective of the grade or length of service or other educational qualifications.
(a) Diploma in Labour Welfare/Social Welfare;
(b) Diploma in Labour Laws;
(c) LLB with paper(s) in Labour Laws;
(d) Post graduate Diploma in Personnel Management awarded by an institution recognised by the Government of India; and
(e) MBA with paper(s) in Personnel Management awarded by an Institution recognised by the Government of India.
Provided that staff working in grade Rs. 5000-8000 or above on regular basis will not be eligible to appear in the aforesaid selection.
Provided further that eligibility of staff in possession of qualification as mentioned above will also be subject to the condition that they have successfully completed the probation in the respective grade.
(ii) Group 'D' staff who have completed at least 7 years' service in Group 'D' and are in possession of any of the qualifications mentioned in (i) above.
(iii) Staff in the grades next below the grade of Welfare Inspector i.e., those in grades of Rs. 4500-7000 and Rs. 4,000-6000 with 5 years service in the respective grade in case the higher grade does not fall in the normal line of advancement, otherwise 5 years service together in these grades.
(iv) Staff in the grades Rs. 4500-7000 and Rs. 4,000-6000 who are Graduates irrespective of the length of service in these grades provided the staff concerned have successfully completed the probation in the respective grades.
(v) Staff in grades lower than the grade next below the grade of Welfare Inspector i.e., those in grades Rs. 3,200-4900 and Rs. 3,050-4590 who are graduates and who have completed not less than 7 years service in the respective grade in case the higher grade does not fall in the normal line of advancement, otherwise, 7 years service together in these grades.
18. Three questions arose there in regard to the procedure for holding selection and empanelment for the same. The 3rd question that arose was, "whether an employee fulfilling any of the qualifications enumerated in para 1(i) of Board's letter dated 24.5.66 and working in grades equivalent to or higher than the grade of Welfare Inspector, viz. Rs. 5000-8000 will be eligible to appear in the selection?
19. The said question was answered as below:
Only the staff in grade(s) below the grade of Welfare Inspector viz. Rs. 5,000-8000 will be considered eligible. In other words staff working in grade Rs. 5,000-8000 or above are not eligible.
(Page 6 to 8 of Bahri's Railways Establishment Rules & Labour Laws, 2004)
20. There is a specific instruction for preparation of panel and the same has been discussed by the respondents in the counter reply filed by the official respondents which had undergone review in terms of the judgment of the Hon'ble Supreme Court as has been discussed by the official respondents in their counter reply as mentioned above.
21. In view of the above facts and circumstances, when admittedly the private respondents and applicants were in the same pay scale and thereby they (PRs) did not have any disadvantage to compete with other non-running categories, as their pay scale was not lowest among the other eligible categories and that the equivalent scale of the private respondents and the pay scale of the post of Traffic Apprentice for which the panel was prepared is the same i.e. Rs. 5500-9000 and when in the impugned panel there is no whisper that the said panel was prepared by applying serial circular No. 295/99, the respondents are not justified in preparing the panel by placing the private respondents on the top of the panel by applying Railway Board instruction dated 1.10.1999 (S.C. No. 295/99). However, we find that in the impugned order dated 28.08.06 it is made clear that the said panel is provisional. Therefore, change in provisional panel will not prejudice any one in the panel.
22. We, therefore, declare that for the reasons stated above, the impugned select provisional panel dated 28.08.06 prepared by the respondents by applying Serial Circular No. 295/99 suffers from infirmity and is liable to be quashed. The same is accordingly, hereby quashed and set aside. Respondents are directed to prepare the panel according to rule/instruction without applying the Sr. Circular No. 295/99 in case of private respondents.
23. In result, the OA is allowed to the extent indicated above with no order as to costs.