Central Administrative Tribunal - Mumbai
Milind K. Gaikwad vs Union Of India on 24 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.
O.A.108/2006.
Dated this Thursday the 24th day of February,2011.
Coram : Hon'ble Shri Jog Singh, Member (J)
Hon'ble Shri Sudhakar Mishra, Member (A).
Milind K. Gaikwad,
Sr.Statistical Inspector,
working under Sr.DEE (TRO),
DRM's Office, Bhusaval,
Rly. Qtr. No.D/22, Tapti Road,
Bhusaval. .. Applicant.
( By Advocate Shri D.V. Gangal ).
Versus
1. Union of India, through
Secretary, Railway Board,
Rail Bhavan, New Delhi.
2. General Manager,
Central Railway,
Mumbai CST.
3. Chief Personnel Officer,
G.M.'s Office,
Mumbai C.S.T., C.R.
4. V. Sebastin Pitchairaj,
Assistant Personnel Officer (W),
D.R.M.'s Office, Bhusaval.
5. T.W. Koshy,
Assistant Personnel Officer (C),
CAO(C)'s Office,
Mumbai C.S.T., C.R.
6. D.R. Gaikwad,
Assistant Secretary (P.G.),
G.M.'s Office,
Mumbai C.S.T., C.R.
7. U.C. Bodake,
Assistant Personnel Officer,
Zonal Railway Training Institute,
Bhusawal, C.R.
8. Ashok Trivedi,
Assistant Personnel Officer (T),
D.R.M.'s Office, Bhusaval, CR.
9. Md. Safiqual Islam,
Assistant Personnel Officer,
G.M.'s Office,
Mumbai C.S.T., C.R.
10. G.P. Bhagat,
Assistant Personnel Officer(T),
D.R.M.'s Office,
Mumbai C.S.T., C.R.
11. G.M. Srinivasan,
Assistant Personnel Officer,
D.R.M.'s Office,
Pune, C.R. ..Respondents.
( By Advocate Shri V.D. Vadhavkar ).
O R D E R
Per : Shri Sudhakar Mishra, Member (A).
The applicant is an employee of the Central Railway. Through this O.A. he seeks promotion to a Group 'B' post. It may be stated at the outset that he has actually been promoted subsequent to filing of the O.A. However, in view of the relief sought, the O.A. was taken up for consideration.
2. Briefly stated, the facts of the case are that the applicant was originally appointed as Gangman in the year 1982. He had several promotions in his career; promoted as Jr. Clerk in 1984, Sr. Clerk in 1985, Statistical Inspector Grade III in 1992, Statistical Inspector Grade II in 1993 and Statistical Inspector Grade I in 1997. Thereafter he was looking forward to be promoted as Assistant Personnel Officer (herein after APO), a post in the Group 'B' Cadre.
2.1 The respondents notified the selection process on 24.6.2004 for selection of 11 APOs, 10 in the General Category and 1 in the ST category. The selection was to be made by promotion from Group 'C' against 70% L.G.S. Quota. Written examination was first conducted on 21.8.2004 and the supplementary written examination was held on 04.09.2004.
2.2 Out of the total 210 candidates appearing at the test, 19 were declared qualified as per Notification dated 21.09.2004, depicting integrated seniority list of the qualified candidates. After dealing with the representations received in response to that list of successful candidates, the revised integrated seniority list was issued by the respondents on 29.09.2004. All the candidates declared eligible for viva-voce test were interviewed on 01.10.2004. All of them were subjected to medical examination.
2.3 On the basis of over all performance, 10 of the candidates were empanelled on 05.10.2004 for promotion against the general posts and no candidate was found suitable for being posted against the ST vacancy. Although the applicant had qualified in the written test and was subjected to medical test and interview, his name did not appear in the panel of 10 candidates chosen for promotion as APO.
2.4 Being aggrieved the applicant submitted a representation dated 29.11.2004 to Respondent No.3. The applicant had submitted that he was ranked fourth in the combined seniority list and had possessed suitable higher qualifications in consideration of which; besides considering his performance in the competitive examination; he should have been selected. In response to his representation the applicant received the brief communication dated 04.05.2005 (Annexure A-6) that he was not found suitable for the post of APO and, therefore, he has not been empanelled. Hence this O.A. 2.5 The applicant mainly seeks the following relief:-
8(a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case and after going through the same, it may be declared that the panel dated 05.10.2004 is illegal, but may not be set aside. It may be declared that the Applicant's name be included in the panel dated 05.10.2004.
(b) It may be declared that the Applicant be placed at the appropriate place in the panel with consequential benefits of pay fixation, seniority and payment of arrears.
(c) It may be declared that the order dated 04.05.2005 is illegal and be quashed.
3. Besides the elaborate pleadings and attached documents the applicant has furnished even more elaborate synopsis and gists of arguments. However, in the synopsis dated 07.02.2011 he has almost condescended to reduce the burden of poring over all his anxious submissions. The relevant portion is reproduced hereunder:-
The applicant states that he has submitted IX Issues/Merits in his OA, Rejoinder, additional reply and brief of the same produced in Gist II along with relevant rules, case laws and explanations.
The Hon'ble Tribunal is requested to go through all the Issues/Merits at Page-3 to 22 of Gist II and decide the case on merits.....
4. Before actually stating and considering the issues raised by the applicant, the record of his performance at the recruitment needs to be set down. The same is depicted in the following table:-
___________________________________________________ Heads Maximum Minimum Marks Marks Qualifying Obtained Marks by Applicant Written test 150 90 94 (Professional ability) Record of service 25 15 } 16 } } } Viva-Voce 25 } 30 8 }24 Total 200 120 118 4.1 The applicant failed because he did not secure the required minimum of 30 marks against the combined heads of 'Record of Service' and 'Viva-voce' and also because he failed to score the over all required marks of 120.
5. The First issue raised by the applicant in the Gist-II filed on 16.12.2010 is that marks have not been given in accordance with the Indian Railway Establishment Manual (herein after IREM)while evaluating Record of Service. But while doing so, the applicant simultaneously refers to the provisions of Para 204 and also Para 219 of IREM and the directives issued thereunder. The respondents contend that some of the exhibits like A-1 and A-2 pertain only to promotion within the Group 'C' category and do not pertains to promotion to Group 'B' category.
5.1 That impelled us to have a close look at IREM. It is seen that the Chapter II thereof contains rules governing promotions of staff in Group 'C'. It has two sections. Section 'A' contains Rules Governing Promotion of Sub-ordinate Staff, incorporating therein Rules 201 to 209, all dealing with promotion from Group 'C' to Group 'B' posts. Section 'B' of Chapter II contains Rules Governing the Promotion of Group 'C' Staff, incorporating Rules 210 to Rule 228, all dealing with promotions within the Group 'C' cadre. Having seen that and the matter before us being a case of promotion to Group 'B', we will ignore all the rules referred to on behalf of the applicant which are contained in Section 'B' of Chapter II of IREM and the instructions issued thereunder.
5.2 In this connection the applicant would also claim support from the decision of this Tribunal in O.A.No.66/1989 dated 24.4.1995 in the case of S.S. Amrute Vs. Union of India and the decision dated 19.2.2010 of this Tribunal in O.A.No.34/2005 in the case of J.P. Shoke Vs. Union of India.
5.3 The Second issue raised by the applicant is that he had higher qualification by way of Post Graduate Degree in Management & Personnel Relations and should have been awarded 5 marks for higher academic qualification and 5 marks for technical qualification at the viva-voce test consisting of personality, address, leadership, academic and technical qualification; whereas, he was awarded 5nly 8 marks. The applicant stressed that Para 204.1 of IREM has been violated thereby.
5.4 The Third issue raised by the applicant is that he is the senior most and ranked fourth in the integrated seniority list. But, however, he was not empanelled while 8 of his juniors have been empanelled. The applicant contends that being senior and having higher technical and educational qualification he should have been empanelled in preference to his juniors and in support of that contention cites a judgment of the co-ordinate Bench of this Tribunal at Allahabad in the case of Azmatullah Khan Vs. Union of India [ATR 1993(1)C.A.T. 60].
5.5 Claiming it to be another issue, the applicant raises the Fourth issue which is reproduced hereunder:-
The applicant states that as per Supreme Court's Judgment in case of Dharamveer Singh Tomar vs. Administrator Delhi Administration he is fit for promotion, the said Para 2 of judgment at page 229 is reproduced - The expression 'fitness' means there should not be any adverse entry in the character rolls of concerned person at least 3 years and not disciplinary proceedings should be pending against him. 5.6 The next issue raised by the applicant is that inspite of being a senior SC candidate he was superceded. Even though the selection was to be made in respect of unreserved posts, supercession could be made only with the approval of the Minister concerned i.e. Minister of Railways. Since such approval was not taken, the statutory provisions of protecting SC/ST employees has been violated. In this connection the applicant refers to an O.M. dated 28.1.1982 of MHA and a letter dated 24.10.2002 of Railway Board.
5.7 By way of Sixth issue the applicant contends that 'equality before law' and 'equal protection of law' as enshrined in Article 14 and 16 of the Constitution of India has been infringed by not following various orders, instructions and rules issued in this behalf. The applicant relies on a decision of the co-ordinate Bench of this Tribunal at Jaipur in the case of B.D. Kubba and another Vs. Union of India, decision dated 14.7.2004 in O.A.No.254/2003.
5.8 The applicant raises yet another issue on the aspect of reservation. He contends that his claim for promotion as a senior SC candidate under Article 46 of Constitution of India has been denied in violation of the Constitutional provisions.
5.9 The Eighth issue raised by the applicant is that the reply given by the respondents informing him that he was not found suitable was a routine denial without any support of material fact. Such denial is not sustainable in view of the decision of the Hon'ble Supreme Court of India in the case of Union of India Vs. M.L. Capoor [AIR 1974 SC 87].
5.10 The last of the issues raised by the applicant is that the post of APO is a non safety category post. The applicant has been wrongly assessed and has not been given legitimate marks because viva-voce was not foreseen under the rules and yet viva-voce was conducted.
5.11 The final written submission made thereafter is reproduced below:-
In view of the facts mentioned above, the applicant prays for the following relief:-
a) The Respondent be directed to constitute a Review Selection Committee and direct the said Selection Committee to award marks to the Applicant in respect of Record of Service and viva-voce as follows:
(i) Record of Service means Confidential Report for 5 years,
(ii) Relevant Service Record means Awards and Commendation Certificates total 13 received by the Applicant,
(iii)Integrity of Character which is beyond doubt should also be given proper marks.
b) In respect of viva-voce the marks should be allotted under the following sub-heads:
(i) Interaction / Response of the Applicant towards the questions put to him in the oral interview by the Selection Committee;
(ii) Personality, Address, Leadership initiative and drive also should be reassessed on the basis of various references & rulings submitted by the applicant.
(iii)Academic and Technical Qualifications possessed by the Applicant should also be granted proper marks.
c) Other Issues/Merits like Seniority, Supersession Article 46, 14 and 16 shoould also be taken into account while judging merits.
In view of the judgment in S.S. Amrute's case the entire panel need not be set aside but the name of the Applicant be interpolated in the light of Review Selection Committee recommendations and the Applicant be empanelled in the Panel dt. 05.10.2004. He be granted all consequential benefits.
6. Per contra, the respondents contend that the selection process has been conducted as per rules and by following the extant instructions on the subject of selection from Group 'C' to Group 'B' as laid down by Railway Board's letter dated 16.1.2001. Since the applicant failed to secure the required marks he was not empanelled. The respondents stress that the applicant cannot claim a separate method of evaluation for himself while all other aspirants were evaluated as per the existing method of evaluation following the prescribed rules and procedures.
6.1 The respondents state that the reliance placed by the applicant on the decision in Amrute's case (supra) is misplaced, since in that case the challenge was to the selection list of Assistant Engineers drawn by a Departmental Promotion Committee of the Central Railway on 21.9.1988. The instructions dated 16.1.2001 followed by the respondents in the present case was not in force in Amrute's case. As such the facts of that case are distinguishable. The respondents particularly point out that the applicant has not raised any issue of bias against the DPC and the DPC has acted as per rules and regulations governing selection from Group 'C' to Group 'B'.
6.2 As regards the challenge to the evaluation in the viva-voce test, the respondents have cited the Hon'ble Supreme Court's decision in the case of Madan Lal & Ors. Vs. The State of Jammu & Kashmir & Others [1995(1) SC(SLJ) 369] to contend that once an assessment on merit is made by an expert committee, that cannot be challenged on the ground that the assessment was not proper as that would be the function of an appellate body. Besides, the validity of viva-voce test cannot be judged simply on the basis of the result thereof unless there is anything to show that the entire selection process was vitiated on account of malafides or bias.
6.3 As to the selection of candidates other than the applicant being questioned by the applicant, the respondents contest it citing the judgment of the Hon'ble Supreme Court in the case of Durga Devi Vs. State of Himachal Pradesh [1997(2) SC (SLJ) 209].
6.4 The respondents specifically state that the applicant was not senior most among the SC candidates. One Shri S.M. Raybhole was the senior most SC candidate but he could not secure qualifying marks in the Record of Service and Viva-voce put together and hence was not selected.
6.5 The respondents further point out that promotion as APO was effected by calling applications from 8 different seniority groups like Personnel Inspectors, Welfare Inspectors, Law Assistants etc. As per Railway Board's letter dated 24.10.2002, forwarding the proposal to Railway Minister is applicable only when the cases of eligible SC/ST candidates who though available are not selected against the reserved vacancies. Para-V of the said letter specifically speaks of SC/ST candidates who become eligible for promotion against the unreserved vacancies and if they are not proposed to be promoted then the approval of the Minister is to be taken. But the applicant was not eligible for promotion since he did not secure the required marks. Besides, it has been submitted that the applicant has not made any representation against the assignment of seniority as per the list finally published on 29.9.2004.
6.6 The respondents have further submitted that the decision or assessment of the selection committee cannot be subjected to scrutiny by any judicial forum unless there is any allegation of breach of prescribed procedure or of malafides. Reliance in this regard has been placed on the judgments of the Hon'ble Supreme Court in the cases of M.V. Thimmaiah & Ors. Vs. UPSC & Ors. [(2008) 1 SCC (L&S) 409, Mrs.Anil Katiyar Vs. Union of India & Others [1997 (1) SCSLJ 260, Indian Airlines Corpn. Vs. Capt. K.C. Shukla & Ors. [1992 SCSLJ 326, Parvez Quadir Vs. Union of India [AIR 1975 SC 446], Dalpat Abasaheb Solunke Vs. B.S. Mahajan [AIR 1990 SC 434], Major General IPS Dewan vs. Union of India & Ors. [1995(1) SCSLJ 412.
7. We have heard Shri D.V. Gangal, learned counsel for the applicant and Shri V.D. Vadhavkar, learned counsel for the respondents. We have perused the pleadings and other documents on record and have also perused the official records which the respondents have produced for our perusal.
8. The undisputed facts of the case are that the applicant was eligible to be promoted as APO and he had participated in the selection process notified on 24.6.2004 for conducting selection against 70% LGS quota. The notification declared 11 vacancies of APO to be filled up, of which 10 were in the General category and one was in the ST category. There was no vacancy in the SC category to which the applicant belongs. The notification made it clear that a written test was to be held for the purpose and viva-voce test was also be held in respect of those candidates who qualified in the written test. The applicant had applied for selection. At the written test he scored 94 marks from out of the maximum marks of 150. The qualifying marks being 90, he had qualified in the written test. He also passed the medical test and that is how he had appeared at the viva-voce test. In the viva-voce test he scored 8 marks from out of maximum of 25 marks and in the segment of 'Record of Service' he scored 16 marks from out of maximum marks of 25.
8.1 Although the applicant had scored more than required minimum marks (15) in the segment of 'Record of Service', he scored only 24 marks in the combined segment of Record of Service and viva-voce test, whereas he was required to score minimum of 30 marks in the said combined segment. Therefore, he failed to qualify. Besides, he was otherwise disqualified because of failing to score overall marks of 120, since he had scored overall total of 118 marks.
9. Besides the nine issues raised in the background of the above facts, the applicant has also contended that constitution of the Selection Board was not in accordance with the statutory provisions. It is particularly contended that the Selection Committee was not provided with the services of a senior Dy. General Manager or Additional Chief Vigilance Officer. It is, therefore, necessary to take look at the statutory provisions, so as to appreciate the objection raised by the applicant.
9.1 The provisions of IREM having been copiously referred by the parties, it is necessary to reproduce relevant provisions of IREM containing rules governing promotion of subordinate staff; i.e. from Section 'A' of Chapter II of IREM; providing rules for promotion from Group 'C' to Group 'B' posts.
202.1 Composition of Selection Committee.- Selection Committee will be constituted under the orders of the General Manager for the purpose of making recommendations to him in respect of Group 'C' staff considered suitable for promotion to Group 'B'.
The Selection Committee should consist of 3 Heads of Department or Additional Heads of Department including the Chief Personnel Officer or Additional Chief Personnel Officer and the Head of the Department concerned or as has been provided for in the relevant Recruitment Rules. The Senior Deputy General Manager or the Adll.CVO of the Vigilance Organisation should be nominated to serve on the Committee. If none of the officers constituting the Departmental Promotion Committee belongs to either Scheduled Caste or Scheduled Tribe holding the rank not lower than the Junior Administrative Grade may be nominated.
204.1 Selection Procedure.- The selection is based on a written test to adjudge the professional ability, vivavoca and assessment of records by the Selection Committee. The marks allotted and the qualifying marks under the different head are as follows:-
Maximum Qualifying Marks Marks
(i)Professional ability 50 30
(ii)Personality, Address, Leadership & Academic technical qualifications25 15
(iii)Record of service 25 15 ____________________ 100 60 ____________________ In respect of Accounts department the marks allotted and qualifying marks are as follows:-
.....
.....
204.6 Personality, Address and Qualities of Leadership should be assessed at the viva-voce test.- In case written test is not held for adjudging professional ability this should also be assessed at the viva voce though 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. 9.2 From the proceedings of the Selection Committee it is seen that the Selection Committee consisted of the Chief Personnel Officer, the Financial Advisor & Chief Accounts Officer and the Chief Electrical General Engineer. All the three are stated to be Heads of their respective Departments and together they formed the Standing Committee for promotion as constituted by the General Manager. Unlike as provided under Para 202.1 no senior Dy. General Manager or Additional Chief Vigilance Officer was nominated to serve on the Committee. But, as we see it, no illegality can be attached thereby to the constitution of the Selection Committee which, as provided under the rules, constituted of 3 Heads of the Departments. Besides, the applicant has not raised the challenge against constitution of the Selection Committee so as to seek quashing of the entire panel. In fact, the applicant has specifically pleaded to the contrary. He wants the panel not to be quashed and yet would like to challenge the constitution of the Selection Committee for the limited purpose for supporting arguments against only his non-selection. We find little merit in such a challenge.
10. Turning to the issues raised by the applicant for our consideration, the first issue raised by the applicant is that the marks have not been awarded in accordance with IREM while evaluating Record of Service. Discussion on this issue will effectively include discussion on evaluation of all the relevant segments; i.e. the written test, viva-voce test and also Record of Service. We presently proceed to do so.
11. In the case at hand, as already mentioned, a written test was first held and the successful candidates thereat were subjected to viva-vove test. Although 25 marks are set apart for deciding personality, address, leadership and academic technical qualifications as per Para 204.1, exclusion thereto is provided under Para 204.6 to the effect that personality, address and qualities of leadership should be assessed at the viva-voce test in case written test is not held. Thus, it is obvious that the said 3 traits are to be basically assessed through written test and the written test having been held in the present case provision; or, insistence, for separate marking on these 3 traits at the viva-voce test has to be ruled out. In the present case, therefore, the viva-voce test was to include only the subjective satisfaction of the panel of interviewers and the performance by the applicant at the interview, having regard to his professional qualifications.
12. It is important to point out that there is no separate provision under the rule or under any instructions to separately set apart marks towards professional qualification. That being so, the applicant's grievance against allocation of 8 marks at the viva-voce test without any allegation of bias or of complicity against the respondents in awarding those marks, it is not given to this Tribunal to sit in judgment over to the reasonability; or, otherwise; of the marks awarded in the viva-voce test. That is the settled position of law.
12.1 The applicant has made the submission that separate marks should have been awarded for the awards received by him. That would have boosted the marks scored by him in the segment of Record of Service and in this regard the applicant refers to letter dated 27.6.1973 of the Railway Board, which forms a part of Annexure A-10 to the rejoinder filed by the applicant. It is seen there from that one mark indeed is advised to be added for each award, but not beyond over all total of 15 marks. Since the applicant had otherwise scored 16 marks in the segment of Record of Service there was certainly no scope for the respondents to have given additional marks towards the awards received. Whether the respondents separately considered this aspect or not, so far as the contention of the applicant is concerned we do not find merit in it.
13. So, then, the position is that the applicant happily accepted the correctness of the marks awarded in the written test and we are precluded from judging the adequacy of the marks awarded to him at the viva-voce test. That leaves for consideration applicant's grievance against awarding of marks in the segment of 'Record of Service'.
14. We have perused the Minutes of the Records of DPC proceedings. We have also perused the confidential records maintained in respect of the applicant. The mode of evaluation of confidential records as has been applied in the applicant's case, the same system has been applied in the cases of all successful examinees at the written test.
15. On perusal of the proceedings of the Selection Board it is seen that the selection process was held in accordance with Railway Board's letter dated 20.8.1991 (Exhibit R-2) which follows the provisions of aforementioned Para 204.1 of IREM. The assessment of 'Record of Service' was based on the preceding 5 years' confidential reports, as per Railway Board's letter dated 16.1.2001 (Exhibit R-4). It is, thus, clear that provisions of rules and instructions have been followed in evaluating the performance of all the candidates across the Board.
16. The applicant's reliance on the decision in Amrute's case is ill founded because that case is distinguishable on facts. The distinguishing facts have succinctly been referred to in the operative part of the order, relevant portion of which is reproduced hereunder:-
10. We are therefore of the view that a patent injustice has been done to the applicant in O.A.66/89 (Shri S.S. Amrite) by adopting the system of negative marking and in the context of the facts mentioned by us above. It also appears that the Annual Confidential Reports of the officer have generally been good and adverse remark to the effect (unfit for promotion) was subsequently expunged. We are therefore of the view that in this particular case intervention by the Tribunal would be justified. We are therefore required to consider as to what relief is to be given and we dispose of the O.As by passing the following order.....
17. As can be seen, in Amrute's case negative marking was done and there were certain adverse remarks to the effect that he was unfit for promotion, though such remarks were subsequently expunged. No such thing happened in the applicant's case. Besides, as has been pointed out by the respondents, Railway Board's letter dated 16.1.2001 as to awarding marks against Record of Service, was the prevailing instruction at the time of selection held relating to the present case; whereas, a separate set of rules governing assessment of Record of Service was operative prior to that. It may be stated that in Amrute's case the O.A. was filed in 1989.
18. The applicant's reliance on the decision dated 19.2.2010 of this Tribunal in J.P. Shoke's case (supra) is also ill founded as the facts of that case are clearly distinguishable. We do not consider it worthwhile to bring out the facts in that case so as to point out the distinction between the two cases.
19. The second issue raised by the applicant contending awarding of additional marks for higher qualification has also been addressed under Paragraphs 11 and 12 above and is found devoid of merit.
20. The third issue raised by the applicant is that being pretty senior and having higher qualification he should not have been overlooked and in support of this submission he places reliance on a decision of this Tribunal in the case of Azmtullah Khan Vs. Union of India (supra). In this connection the first point to note that it is not a 'non-selection post' to which promotion was to be made. It was a 'selection post' to which promotion was to be made on the basis of merit-cum-seniority. For assessing merit elaborate selection process was held. The applicant failed in merit. Therefore, in spite of his educational qualification and experience, i.e. seniority, he had to be overlooked.
21. That the decision in Azmatullah Khan proceeded on absolutely distinguishable facts is amply borne out by the operative part of the order of the Allahabad Bench of the Tribunal in that case. The same is reproduced hereunder:-
6. In the instant case the respondents have cautiously avoided giving a very definite reply regarding merits and have stated that in selection when grading is done meritorious juniors supersede seniors who thus stand superseded. The tenor of written statement is in line with the wrong application and description of statutory rule regarding criteria for selection which according to respondents' plea is merit alone without there being anything else. The selection is seems was made from this very angle ignoring the requirements of rules with the result that selection so far as the applicant is concerned requires reconsideration of difference as far as merit is concerned was not substantial and the balance was little on the side of junior, the applicant will have an edge over him in view of seniority. Accordingly the application is allowed in part and the respondents are directed to reconsider the record of applicant vis-a-vis those who have been selected in the three selections and if merit being more or less same with their difference, the applicant shall be given notional promotion with effect from the date his next junior was promoted and actual date with a month of reconsideration of review D.P.C. which shall meet within 3 months from the date of communication of this order. No order as to costs. Unlike in the case of Azmatullah Khan, as has been seen and held herein above, more meritorious candidates were picked up by following the rules and instructions. Therefore, the applicant cannot have any grievance in that regard. In fact in that case the Tribunal had noticed an illuminating judgment of the Hon'ble Himachal Pradesh High Court which was delivered by the Hon'ble Chief Justice R.S. Pathak (as he then was of the High Court). The relevant portion is reproduced hereunder:-
But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility the emphasis shifts from seniority-cum-fitness to merit-cum-seniority......, when merit is the dominating principle the rule of merit-cum-seniority is applied and when that rule is applied, it is necessary that the comparative merit of all eligible candidates must be considered. There must be selection and as the Supreme Court observed in Janki Prasad Vs. State of Jammu and Kashmir [(1973) 1 SLR 719], selection means that the men selected for promotion must be of merit......
22. The fourth issue, as per the applicant, is that he was fit for promotion and yet was not promoted and in support of that contention he relies on the Hon'ble Supreme Court's judgment in the case of Dharamvir Singh Tomar. On perusal of the judgment in Dharamvir Singh Tomar's case [(1991) 1 ATC 925] which is placed before us as Exhibit A-15 it is seen that promotion in that case to the Selection Grade Teacher post was to be given on the basis of 'seniority subject to fitness'. In that context the Hon'ble Supreme Court elaborated that the expression 'fitness' means that there should not be any adverse entry in the character rolls of the concerned person atleast for the last 3 years and no disciplinary proceedings should be pending against him. The appellant in that case fulfilled those conditions and hence he was held by the Hon'ble Court as fit for promotion. Whereas in the present case the promotion was effected on the basis of merit-cum-seniority. Since the applicant failed in merit he was unfit for promotion.
23. The next contention the fifth issue raised by the applicant is that he being senior SC candidate he should not have been superceded without obtaining the approval of the Railway Minister. Reference in this context has been made to an OM. Dated 28.1.1982 of MHA (Exhibit A-10) and to Railway Board's order dated 24.10.2002 (page 221 of the O.A.)
24. We have perused the above mentioned OM and order. The OM dated 28.1.1982, inter alia, enjoins that In posts filled by promotion supercession of SC/ST candidates even against unreserved vacancies should be reported to the Minister/Minister of State/Deputy Minister as the case may be ..... The order dated 24.10.2002 enjoins that -
(v) Wherever the SC/ST candidates become eligible for promotion against unreserved vacancies by virtue of composite seniority and they are superseded by others, such cases should also be put up to the authorities as mentioned in the foregoing paras.
25. The relevant 'foregoing para' is para (ii) of that order which is reproduced hereunder:-
(ii) In promotion to Gr.B and within Gr B Such case should be reported to Board for further information to MR/MSR/DMR concerned as the case may be within a period of one month of the finalisation of the selection list. Thus, it is seen that there is no illegality in the present case. No approval of the Minister was to be taken. The matter was only to be reported to the Minister and such report was to be sent through the Railway Board within a month of final selection. If at all, there was an administrative irregularity. But, to repeat, no illegality was caused, particularly because the applicant had failed to qualify in the selection process held in accordance with the rules.
26. The next issue which the applicant has thought fit to raise is that the principles of equality before the law and equal protection of law as enshrined in Article 14 and 16 of the Constitution of India has been observed in breach by not following various orders, instructions and rules issued. However, as we have discussed herein above, we find that there has been no infraction of any rule, law or instructions in the matter of selection. The applicant's reliance on the decision in Kubba's case, therefore, is misplaced. But what is more, the facts in Kubba's case are also totally different. It would be adequate to reproduce a few sentences from the operative part of the order:-
Admittedly, in this case, a number of juniors to the Applicants have been promoted but the case of the Applicants have not been considered and we have absolutely no hesitation in coming to the conclusion that there has been infringement of the fundamental rights of the Applicants in non-considering the case of the Applicants for promotions at par with their juniors. If that be so, the Original Application is well-founded and the action of the Respondents are discriminatory, arbitrary and offended the equality clause enshrined in Articles 14 and 16 of the Constitution of India. Contrary to the facts in Kubba's case the applicant was allowed to participate in the selection process and he actually did participate. But, unfortunately for the applicant, he was not found meritorious enough to be promoted. The selection process was held in accordance with the rules. Under the circumstances, the decision in Kubba's case has no reference value for the present one.
27. The seventh issue raised by the applicant is that in the matter of promotion of senior SC/ST candidate like him provisions of Article 46 of the Constitution has been observed in breach by not following the same.
27.1 Article 46 of the Constitution provides as under:-
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. In the notification dated 24.6.2004 initiating the selection process in this case, it is specifically mentioned under the heading Scheme of Examination that Relaxation is permissible to SC/ST employees (best among failures). As has been mentioned earlier, from out of the posts advertised there was no slot for SC candidates. As the respondents have pointed out, the applicant was not the senior most among failed SC candidates. Shri S.M. Raybhole was the senior most. We also find that the applicant was not also the best among the failures of SC/ST candidates. It was Shri Raybhole who was the best and he had secured 132.4 marks. It is also pertinent to point out that the Selection Committee while subjecting the candidates to viva-voce test was guided by the instructions in that regard as is apparent from Para 6.1 of the proceedings of the Selection Board dated 04.10.2004. The same is reproduced hereunder:-
6.1 all the 19 eligible candidates who attended the viva-voce test held on 1st October, 2004 were subjected to viva-voce test by the Selection Board. The candidates belonging to reserved community were interviewed separately (in the beginning) as per Railway Board instructions. Under the circumstances we are unable to appreciate that either constitutional provision or the rules of selection were infringed in any manner.
28. The applicant next contends (eighth issue) that the response dated 04.5.2005 by Respondent No.3 hereto, as given to the applicant's representation dated 29.11.2004, was a routine rubber stamp reason stating that he was not found suitable and no material fact was given. Although the applicant does not contend that thereby any rule or instruction has been infringed; nor even takes the trouble to contend that tenets of natural justice have been infringed, he places reliance on judgment of the Hon'ble Supreme Court in the case of M.L. Capoor Vs. Union of India [AIR 1974 SC 87].
29. As we have verified, the respondents have maintained meticulous records of the selection process and obviously after referring to those records they have given the reply dated 04.05.2005 that he was found unsuitable. Besides, the facts in M.L. Capoor's case (supra) were totally different of course there were issues for no consideration in that case but the issue relevant for the present matter was something like this. Under Regulation 5(5) of the IAS/IPS (Appointment by promotion) Regulations, 1955, a mandatory duty is cast upon the selection committee to record its reasons for the proposed supercession. In Capoor's case, a rubber stamp stating the reason was used mechanically for the purpose. That was frawned upon by the Hon'ble Supreme Court and they held that the mandatory provision of the Regulation 5(5) were not complied with. The decision on this particular issue in that case does not have any relevance for the present matter.
30. So far as the ninth and last issue is concerned, as mentioned earlier, it is an extension of the first issue inasmuch as the contention is that no marks are prescribed for viva-voce test and yet viva-voce was held. The provisions of the rules have been noted and discussed earlier and as seen there is no infringement of the provisions of the rules.
31. In the case of Dalpat Abasaheb Solunkhe Vs. B.S. Mahajan [AIR 1990 SC 434] the Hon'ble Apex Court have held as under:-
It is needless to emphasise that it is not the function of the Court to hear appeal over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection or proved malafides affecting the selections etc.
32. In the case of Madanlal & others Vs. State of Jammu & Kashmir & Others [(1995)1 SCSLJ 369] the Hon'ble Supreme Court held as under (relevant portions reproduced):-
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to re-assess the relative merits of the concerned candidates who had been assessed at the oral interview nor can be petitioners successfully urge before us that they were given less marks though their performance was better.
17..... It has to be kept in view that there is not even a whisper in the petition about any personal bias of the members of the interview committee against the petitioner. They have also not alleged any mala fides on the part of the interview committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced. It remains in the exclusive domain of the expert committee to decide whether more marks should be assigned to the petitioners or to the concerned respondents. It cannot be the subject matter of an attack before us as we are not sitting as a court of appeal over the assessment made by the committee so far the candidates interviewed by them are concerned.
18..... The validity of viva voce test cannot be judged simply on the basis of the result thereof unless there is anything to show that the entire selection process was vitiated on account of mala fides or bias or that the interview committee members had acted with an ulterior motive from the very beginning and the whole selection process was a camouflage. No such allegations have been made by the petitioners against the selectors who sat in the interview committee. Consequently even this contention is found to be devoid of any factual basis and stands rejected.
33. Thus, in the facts of the case and in law we find that the O.A. is devoid of merit and hence is dismissed. No order as to costs.
( Sudhakar Mishra ) ( Jog Singh )
Member (A) Member (J).
H.