Central Administrative Tribunal - Delhi
Ashok Kumar Rai vs Union Of India Through The General ... on 2 June, 2009
Central Administrative Tribunal Principal Bench OA No.276/2009 New Delhi this the 2nd day of June, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) Ashok Kumar Rai, S/o late Shri Ram Rattan Rai, R/o 105/4, Thompson Road, Railway Colony, New Delhi. -Applicant (By Advocate Shri Yogesh Sharma) -Versus- 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The President/General Manager (N. Railway), Indian Railway Conference Association, Baroda House, New Delhi. 3. The General Secretary, Indian Railway Conference Association, DRMs Office Complex, State Entry Road, New Delhi. -Respondents (By Advocate Shri S.K. Pathak) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Eligibility condition of one years work experience in inter-change branch to the post of Assistant Director of Wagon Interchange (Group B) as well as list of eligible officers prepared on 14.1.2009 for selection for formation of panel as Assistant Director (Wagon Interchange) (hereinafter referred to as A.D. (WI)) Group B post are challenged. Applicant seeks consideration for the post of A.D. (WI).
2. Indian Railway Conference Association (IRCA), which is in vogue since 1904 consist of such Railway Administrations working a railway open for passenger traffic in India as desire to join it each of whom shall be represented at its meetings by one delegate. Fundamental Rules in Chapter-I prescribe standing committee etc. and as per Rule 2 Chapter-II the IRCA shall exercise full powers in establishment and cognate matters in regard to the strength, cadre, etc. of the IRCA establishment within the limits of the budget sanctioned by the Railway Board shows that it is funded by the Government of India. The Association under Rule 5 in Chapter-II has authority to delegate all or any of its powers to the President and with regard to cadre, appointments and rules regarding establishment the following provisions have been made:-
7. Appointments.(1) Group A and Group B.--Appointments to Group A and Group B sanctioned posts in the I.R.C.A. shall be made by the President, I.R.C.A. in consultation with the Executive Council. Temporary vacancies in Group A and Group B posts may, however, be filled in by the President, I.R.C.A. (2) Group C and Group D.Appointments to sanctioned posts in Group C and Group D shall be made by the President, I.R.C.A., or such lower authority to whom the powers have been delegated by the President.
8. Rules regarding Establishment.The provisions of the codes and rules applicable from time to time to Indian Railway Establishment in matters relating to pay, traveling allowance, joining time, miscellaneous advances, provident fund, pensionary benefits, gratuity, foreign service, leave, discipline and appeal, conduct etc. and any other rules that the Association may prescribe are applicable to the staff of the Assoication.
Note.Fixation of pay of I.R.C.A. Officers on Promotion from Group B to Senior Scale.The Pay of an Assistant officer, Scale Rs.7500-12000 (RSRP) on promotion to the Senior Scale Posts of General Secretary and Netural Control Officer in I.R.C.A. from a date subsequent to 1.1.1973, should be fixed in the following manner:-
(i) Pay at the minimum of the Senior Scale, or
(ii) The pay as Assistant Officer stepped up by one increment in terms of Rule 2018 B (FR 22C) RII and increased by Rs.250/- if it is a stage in the Senior Scale, otherwise, at the stage next above that; whichever is more beneficial.
3. As per the Executive Councils meeting and its agenda dated 21.8.1982 in subject No.2 an avenue for promotion of senior subordinates of IRCA to class-II posts was created by creating a post of A.D., which is to be filled earlier by deputation but later on by drawing officers of the TTE and C departments, from Railways as done in the past, shows the practice followed by the Railways.
4. Applicant has also sought through Right to Information Act, 2005, wherein it is acknowledged that for the post of AD (WI) the examination under selection is conducted under Rule 103 and sub rule (31) of Indian Railway Establishment Code (IREC). It is so acknowledged by IRCA in its letter dated 14.1.2009 that for the post of AD (WI) a pre-selection training is held, which is in vogue under the Railway Rules. The Tribunal in one of the decisions in Indian Railway Conference Association Employees Union v. Union of India & another, OA No.252/99, decided on 9.11.2000 ruled that a staff under IRCA neither appointed by Railways nor are paid from the funds of the Government or from the Railways, therefore, their employees do not hold civil post within the meaning of IREC. However, a subsequent decision in Ram Krishan v. Union of India & another, OA No.492/2001, decided on 13.2.2002 on the basis of a decision of the Apex Court in Vikram Singh v. Union of India and Ors., 1991 (17) ATC 294 that IRCA is still under the control and supervision of the Railways Board allowed the OA. In one of the cases of Tapan Kumar Dass v. Union of India & Ors., OA No.2196/2006, decided on 21.5.2008, when selection for the post of Assistant Secretary, Group B was challenged, though the OA was dismissed but it has been held that selection is held as per the provisions of IREM and IREC.
5. With the above backdrop of IRCA, applicant, a personal Inspector Grade-I in pursuance of an advertisement issued by IRCA on 27.10.2008 applied for selection to the post of A.D. (WI), where the following criteria has been laid down:
All Group C ministerial staff in grade Rs.5000-8000 (pre-revised scale) and above would be eligible for selection to Group B post, provided they have rendered 5 years non-fortuitous service and have continuous one year work experience in Interchange Branch as on inviting of the application for the above selection.
6. However, when the candidature of applicant was turned down and he was not included amongst the candidates found eligible, vide order dated 14.1.2009, applicant approached this Tribunal and by an ad interim order he has been allowed to sit in the examination provisionally, subject to the outcome of this OA.
7. Learned counsel of applicant has challenged the criteria of one years experience in the advertisement by invoking the principle of excessive sub delegation, contending that whereas the only qualification under the adopted rules of IRCA, which follow the corresponding rules mutatis mutandis of Railways, is 5 years eligibility under paragraph 201.1 of IREM-I and 203.1 of the IREM, laying down eligibility criteria, where experience is not one of the attributes.
8. It is further stated that as IRCA in practice has adopted for its selection to Group A and B posts Rules of Railways, any deviation and prescription of experience does not come within the ambit of any other rule, which the Association has failed to demonstrate to have adopted, containing experience.
9. It is also stated that the provisions of Railways Rules contained in IREM in the matter of joining time, pensionary, discipline and appeal, conduct rules, etc. would also include promotion and in the event the rules of Railways are silent as to the experience, it cannot be supplemented by the respondents without any authority.
10. Learned counsel would contend that the applicant under Railway Rules for Group B posts was eligible and as no notification has been issued by the President, IRCA in consultation with the Executive Council as to laying down of prescription of eligibility criteria of experience, rejection of the candidature is denial of fundamental right to be considered on fair and equitable basis for promotion.
11. Learned counsel would further contend that all Group C employees when by a Council Agenda ibid are to be considered in IRCA and having not worked on inter change basis the question of experience does not arise as the inter change branch in the Railways has been declared surplus. It is stated that this clause has been added just to favour the dear and near of the respondents in the matter of promotion.
12. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that as per Railway Boards letter dated 9.6.1995 it has been clarified on 8.11.1995 in the matter of appellate authority that for IRCA Railway authorities cannot function as Disciplinary/Appellate authorities, as they are not their employees. It is contended that condition of applicability of minimum prescription as per IREM has to be followed but nothing precludes the respondents to prescribe higher qualification for promotion, for which there is presumption in law that it has been cleared from the Executive Council. Shri Pathak would contend that IRCA is an autonomous body not under the direct control and supervision of Railways but for convenience and practicability Railways Rules have been adopted but for promotion, which is not figured in the rules, any other rule has been prescribed. It is stated that IRCA has its own object, financial and administrative control, which is contributed by Railways, including foreign Railways and these employees of IRCA are not governed by any rules framed under proviso to Article 309 of the Constitution of India.
13. Learned counsel would contend that there are no recruitment rules for the post of A.D. (WI) and earlier this post was being drafted from Zonal Railways on deputation basis. Since the post is being filled up through selection from IRCA cadre and the post of AD (WI) is a unique post dealing with interchange related matters. It is further stated that the post of AD (WI), IRCA in Group B has fallen vacant w.e.f. 24.7.2007, which is an ex cadre post and with a view to fill up the said post the General Managers (P) of all Indian Railways were requested to forward applications of willing and eligible officers on deputation basis, normally for three years, who have minimum three years experience of working as an Assistant Traffic Manager on the Railways as a normal practice in vogue at that time, but no response was received, as no officer volunteered for the said post in IRCA on deputation basis. The post of AD (WI) was circulated vide letter dated 27.10.2008 for holding selection, which consist of written test followed by viva voce. The feeder posts for the said post are all Group C ministerial staff in grade Rs.5000-8000 for selection to Group B; post provided they have 5 years non-fortuitous service and have continuous one year work experience in interchange branch was provided, keeping in view the fact that the responsibilities of the circulated post related to wagon interchange and dealing with foreign railways.
14. In additional affidavit learned counsel of respondents would contend that eligible candidates who have been declared eligible by the impugned orders are not impleaded in the OA and being affected and necessary parties the OA is bad for non-joinder.
15. As regards the decision of the Apex Court in Vikram Singh (supra) the Railway Boards clarification that Railway authorities cannot act as disciplinary/appellate authorities a Writ Petition No.8213/1983 Hans Raj Arora v. Union of India & Ors., came to be filed before the Apex Court, making 7 claims on the allegation of discrimination. Out of the said claims, vide order dated 14.8.1987 (reported in 1988 Supp. SCC 564), three claims were granted by the Apex Court, viz., cadre restructuring, benefit of group insurance and benefit of house building advance. In respect of other claims, including the claim to be treated as Railway employees the Apex Court observed that the other claims are consequential upon the employees and thus did not allow the IRCA employees the status of the Railway employees. As such it is stated that the IRCA employees have not been bestowed the status of Railway employees. Though in Vikram Singhs case (supra) learned counsel for the Railways had never disputed control and supervision of Railway Board over IRCA, but it was in the context of the jurisdiction of the Tribunal. In the above view of the matter, learned counsel has relied upon the following decisions:
i) S. Satyapal Reddy and others v. Govt. of A.P. and others, (1994) 4 SCC 391.
ii) Yogesh Kumar and others v. Govt. of NCT of Delhi and others, (2003) 3 SCC 548.
iii) Technical Employees Association of Railways and another v. Ministry of Railways and others, (2000) 9 SCC 412.
iv) Dilip Kumar Garg and another v. State of U.P. and others, CA No.5122/2007, decided on 3.3.2009.
v) Tamil Nadu Electricity Board and another v. Tamil Nadu Electricity Board Thozhilalar Aykkiya Sangam, (2008) 3 SCC 359.
vi) State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574.
vii) State of J&K v. Shiv Ram Sharma and others, (1999) 3 SCC 653.
16. Learned counsel of applicant in his rejoinder has stated that for any post in IRCA there are no statutory rules and in the counter filed it is admitted that IREM and IREC are followed. Learned counsel while referring to para 203.2 of the IREM states that in case a junior is promoted, senior is also to be promoted. It is also stated that applicant has approached the Tribunal even before written test was conducted, as such no estoppel or waiver has to be applied.
17. We have carefully considered the rival contentions of the parties and perused the material on record.
18. Laying down eligibility criteria and qualification either for recruitment or for promotion is the prerogative of the administrative authority. Rules framed under proviso to Article 309 of the Constitution of India operate the field and cannot be supplemented by any executive instruction. Right to be considered on fair and equitable basis is a fundamental right guaranteed to a government servant. Denial of promotion arbitrarily against the rules amounts to violation of Articles 14 and 16 of the Constitution of India. It is also trite in law that administrative/executive authorities are creature of statute and are bound by all four corners of the statute. It is also trite that under subordinate legislation regulations can be framed and executive orders be issued by the administrative authorities but it cannot be de hors the rules, conferring powers upon the authorities to do so. As ruled by the Apex Court in Bharathidasan University and another v. All India Council for Technical Education and others, 2001 (8) SCC 676 that power to make regulation is confined to certain limits and made to flow in a well defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the Courts are bound to ignore them when the question of their enforcement arise and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It is also trite that administrative instructions can only fill up the gaps in the rule but it cannot be inconsistent with it, failing which it would be ultra vires in its enforcement. In the subordinate legislation an office memorandum issued by Government of India if contravenes the rules, it has no sanctity in law. It is also held in Dilip Kumar Ghosh & Ors. v. Chairman & Ors., 2005 (7) SCC 567 that a circular cannot override the rules occupying a particular field.
19. In A. Satyanaryana & Ors. v. S. Purshotham & Ors., 2008 (2) SCC (L&S) 279 acknowledging right to be considered a fundamental right it is held that a statutory rule must be made in consonance with the constitutional scheme. It should not be arbitrary and be reasonable.
20. In O.P. Lather and Ors. v. Satish Kumar Kakkar and others, 2001 (3) SCC 110 regarding eligibility qualification for promotion and judicial review the Apex Court while relying upon the decision in State of Haryana v. Shamsher Jang Shukla, 1972 (2) SCC 188 held that once a rule is clear, issuing a clarification for equivalent qualification for the purpose of appointment, would not be apt in law.
21. The Apex Court in Shailendra Dania v. ---------S.P. Dubey, 2007 (5) SCC 535, a three-Judge Bench ruled that while interpreting a service rule the principle of interpretation in consonance with the practice followed for a long time is followed in law.
22. In the matter of promotion the Apex Court in Mangi Lal v. State of Rajasthan, 2007 (9) SCC 189 ruled that eligibility and experience stand on a different footing. In Andhra Bank v. B. Satyanarayana & Ors., 2004 SCC (L&S) 433, a three-Judge Bench on laying down eligibility norms for promotion and the subordinate legislation a valid regulation once framed has been treated to be a part of statute and employer is entitled to lay down policy decision, laying down criteria for promotion but such eligibility norms must be defined by the employer on a realistic basis but this has to be exercised as per the available source, i.e., the Rules.
22-A In Prahlad Sharma v. State of U.P., 2004 SCC (L&S) 621 in a case where the Corporation has adopted the government rules, the following observations have been made:
7. Rule 13 of the U. P. Rules of 1999 pro-vides as under:
"13. Revision - Notwithstanding anything contained in these rules, the Government may of its own motion or on the representa-tion of concerned Government servant call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by the these rules; and
(a) confirm, modify or reverse the order passed by such authority; or
(b) direct that further inquiry be held in the case, or
(c) reduce or enhance the penalty im-posed by the order; or
(d) make such other order in the case as it may deem fit."
The U. P. Rules of 1999 relate to the em-ployees of the State Government. The revisional power has thus been vested in the State Government to exercise the same on its own motion or on the representation of concerned Government servant. In exercise of this power the State Government could call for the record of any case decided by an authority subordinate to it and pass appro-priate order confirming or modifying or re-versing the order under revisional scrutiny besides other powers as provided for under the Rule. The question for consideration is as to whether or not this revisional power is available to the State Government in rela-tion to the employees of the Corporation. In this connection it may be observed that a Corporation or any other organization may adopt the rules on any subject, as may be applicable in the State Government or any other organization. But by doing so only the rules are adopted not the authorities unless specifically provided for. Otherwise it would result in a queer situation where the authorities of the organization whose rules on a particular subject have been adopted by another organization would start exercising those powers in relation to the mat-ter of the organization adopting the rules, which would obviously not be permissible. If the organisation adopts the rules per-taining to disciplinary matters as prevalent in the Government or other organization, it would only mean that same procedure would be applicable in respect of the employees of the organization adopting the rules namely, the manner of holding an enquiry into the charges, opportunity of hearing, provision for appeal or revision would be applicable in respect of the employees of the organiza-tion adopting the rules but such powers would be exercisable by the corresponding authorities in the organization adopting the rules. If some power is vested in a particu-lar authority, for example, in this case in the State Government or for that matter it could be with any other officer or function-ary of the State Government, would not sub-ject the employees of a corporation or or-ganization to the control of those authori-ties of the organization whose rules have been adopted. If an appeal is provided to be preferred against an order of punishment, to an authority who is higher than the pun-ishing authority, that remedy may be avail-able to the employees of the organization adopting the rules for preferring the appeal to the higher authority of his own organiza-tion but not that the appellate authority would also be the same belonging to the or-ganization whose rules are adopted. Simi-larly, if any authority corresponding or par-allel to the State Government is available in the corporation such authority may exer-cise revisional powers as conferred upon the State Government in the U. P. Rules of 1999. The authorities of a foreign organization cannot be vested with such powers merely because of adoption of the rules on a par-ticular subject as applicable to other organi-zations. The same procedure or protection will be applicable and available to the em-ployees of the corporation as may be pro-vided under the U. P. Rules of 1999 but the corresponding authorities would obviously be different. Otherwise authorities of the other department whose Rules are adopted may get wide powers like looking into any records of the organization adopting the rules and exercising powers like in this case vested under rule 13, upsetting, modifying, reversing orders passed by the authorities of the adopting organization.
8. The learned counsel for the appellant also draws our attention to rule 13 to indi-cate that if the rule is to be applicable, as it. is, then the Government will have power to revise the order only in case it has been passed by an authority subordinate to it. The Managing Director or the Chairman are the authorities and functionaries of the cor-poration. Incumbent of such offices may even though some times be Govt. servants on deputation but while working as Chair-man or the Managing Director or any au-thority in the organization or the corpora-tion, they would not be subordinate to the Government. It is again to be noticed that then perhaps the right to invoke the revisional powers may be available only to the "concerned Government servant" as pro-vided under rule 13 and may not be avail-able to the employee of the corporation. Therefore, it is submitted and in our view, rightly, that adoption of rules are imple-mented in a manner as they fit in the struc-ture of the adopting organization and not as a straight-jacket application to the adopt-ing organization. It has also been pointed out that according to the provisions of the rule 13, as it is, an order can be subjected to the revisional power of the State only if the order has been passed in exercise of any power conferred under Rules of 1999. It is submitted that the orders passed by the Managing Director or the Chairman can-not be said to be orders passed under the U. P. Rules of 1999 and not under the rules as adopted by the Corporation.
9. The appellant has placed IAIR 1970 reliance upon a decision reported in 1970 (1) SCC 177, Dr. S. L. Aggarwal v. The General Manager, Hindustan Steel Ltd. In this case services of an officer of Hindustan Steel Ltd. were terminated. He sought protection of Article 311 of the Constitution of India. This Court held that the appellant was an em-ployee of the Hindustan Steel Ltd. which has its independent existence. Thus rules and provisions relating to the Government em-ployees could not be applicable to those em-ployees. In paragraph 10 of the judgment it is held as follows :
"..........We must, therefore, hold that the corporation which is Hindustan Steel Lim-ited in this case Is not a department of the Government nor are the servants of it hold-ing posts under the State. It has its inde-pendent existence and by law relating to Corporations it is distinct even from its mem-bers."
It was also observed that even though a cor-poration may be completely owned by the Government or the directors may be appointed by the President of India, neverthe-less in the eye of the law the company was a separate entity and had a separate. legal existence.
10. The other decision which has been referred by the learned counsel for the appellant is reported in 1994 Supp. (3) SCC 385, Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd. & Anr. v. Employees Union & Anr. In this case, in the appoint-ment letter which was issued to the seasonal employees, it was specified therein that their conditions of service shall be governed by Model Standing Orders. Some of the provi-sions of the Model Standing Orders provided for making the services of some categories of employees permanent. The seasonal em-ployees also claimed the same benefit. It has been held that it was incorrect to say -that all the Model Standing Orders would be ap-plicable to the seasonal employees. It has been observed that the Model Standing Or-ders would be applicable to the seasonal employees mutatis-mutandis. It is further observed that the Model Standing Order No. 4-B in particular, will be inapplicable to the seasonal employees because of the very na-ture of their employment and hence it could not be read into service conditions of the seasonal employees even though it was men-tioned in their letter of appointments that they shall be governed by the provisions of the Model Standing Orders. It was further held that only such conditions of service would be applicable which could be applied to the seasonal employees and not the other conditions. It has also been observed that the Model Standing Orders would be appli-cable to the seasonal employees mutatis-mutandis.
11. The expression "mutatis-mutandis" itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, as has been done in the present case, make the princi-ples embodied in the rules applicable and not the details pertaining to particular au-thority or the things of that nature. In the present case, we find that the High Court has found that the U. P. Rules of 1999 have been adopted mutatis-mutandis. Therefore, in our view, the revisional power which has been vested in the State Government in re-spect of the employees of the State may be exercisable by an authority parallel or cor-responding thereto in the Corporation in regard to employees of the Corporation.
23. Having regard to the above ratio decidendi, the case-laws cited by the learned counsel of respondents lay down general law as to laying down qualification over and above or higher qualification through a circular and non-interference in policy decision. In Tamil Nadu Electricity Board (supra) though it is the prerogative but has to be exercised by IRCA in consonance with the Rules.
24. The R.T.I. sought by the applicant and provided by the respondents clearly indicated that for the post of AD (WI) the selection has been held as per the Railway rules.
25. This has brought us to the pivotal question as to interpretation of Rule-8 of IRCA Rules, which is to be done on settled principle of literal and grammatical construction, which shall not defeat the purpose of the Act and carries the object of the Act. We cannot supply causes omissus and no Court could add or delete the words in a statute, as ruled by the Apex Court in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., 2008 (3) SCALE 469. However, some times in interpretation of a service rule when the statute is clear a literal construction is to be supplied, as ruled in Raghunath Rai Bareja & Another v. Punjab National Bank & others, 2006 (13) SCALE 511. As ruled in Nair Service Society v. Dr. T. Beermasthan & Ors., 2009 (4) SCALE 435 that if two interpretations are possible, then the one favoring practice followed for a long time is made out, which is not against the rules has to be followed. Group A and B appointments in IRCA to the sanctioned posts are done in consultation with the Executive Council. As per Rule 8 what is applied to the service condition of Pay, TA, Joining Time, Misc. Advance, Provident Fund, Pensionary benefits, gratuity, foreign service, leave, discipline & appeal, and conduct rules, the rules framed by the Railway establishment under their Code and Manual are mutatis mutandis adopted by the respondents. In fact, with the word etc. figuring shows that few components of conditions of service have been mentioned by way of illustration but left over are also included for its operation on applicability and adoptability of Railway Rules in IREC and IREM. We cannot isolate promotion being a condition of service. This clearly shows that when the provisions of Code and Rules are available under the Railway rules, are to be followed for holding a selection for promotion. That does not mean that respondents right to adopt any other rules even for these service conditions can be foreclosed, but the rules are to apply for regulating these conditions of service and also employees. In the above view of the matter, as the statute is clear that if the rules of Indian Railways Establishment are not adopted, then that is to be adopted on prescription are the rules, which govern the service conditions, including promotion of the employees in IRCA.
26. As we find that para 203, a general provision for selection from Group C to Group B on promotion prescribes 5 years regular service but no experience has been laid down what the respondents have prescribed is a condition and eligibility of one years experience. Respondents are without jurisdiction to prescribe such a condition over and above the provisions of Railway Establishment except when other rules are adopted and applied to such promotion, which contains a provision of experience. The qualification/eligibility of experience of one year cannot be equated as a rule. As such, what is to be applied mutatis mutandis in the matter of promotion are the rules of Railway Establishment and when these rules do not provide as an eligibility experience, the same cannot be prescribed by the respondents, which goes beyond their power and such a prescription is itself contrary to the rules and is ultra vires. No doubt, the instances and the case-laws cited by the learned counsel of respondents as a ratio decidendi lay prescription of higher qualification but nowhere it is held that against the rules such a prescription is valid in law.
27. We also find that in the matter of appointment to any of the cadres and posts no recruitment rules are framed by IRCA and they bank upon by adopting mutatis mutandis the rules of IREM, which they themselves acknowledged in the RTI for the present post of AD (WI) amounts to a policy of the respondents and they cannot approbate and reprobate simultaneously to selectively adopt Rules of Railway Establishment but in addition thereto prescribe without adopting the rules other than the Railway establishment rules which contain a provision of past experience.
28. Moreover, though we are not experienced to lay down qualification, yet we find that once it has been allowed to the Railways to forward applications from group C employees, where this experience in interchange branch would not be fulfilled, as the branch has been declared as surplus and no candidate from Railways possesses the same amounts to foreclosing the right of consideration for promotion of applicant.
29. A policy decision when irrational, arbitrary and violative of Articles 14 and 16 of the Constitution of India has to be interfered with as per the decision of the Apex Court in C.S.I.R. v. Ramesh Chand Agrawal, 2009 (1) SCC (L&S) 547.
30. Another aspect of the matter is that the applicant has not impleaded the eligible candidates their rights by no means are likely to be affected by the outcome, as they are still eligible and have only participated in the written examination for which results have not been declared. A person who merely gets selected has no indefeasible right for such appointment, as such when the applicant is challenging the principle, i.e., a qualification beyond jurisdiction prescribed by the respondents and seeks a valid right of consideration as his fundamental right in the matter of promotion, the objection cannot be sustained in law, though the applicant was allowed provisionally to participate in the written examination, the result is being subjected to the final outcome of the OA.
31. Moreover, in para 203.2 if a junior is considered for selection by virtue of specifying relevant minimum service conditions of persons senior to him shall be held to be eligible despite non-fulfilling the requisite minimum service condition. In that event also, the others who have applied being juniors to applicant, he has a right to be considered in preference.
32. Resultantly, we hold that prescription of one years experience in interchange branch as an eligibility criteria for selection to Group B post of A.D. (WI) is irrational, illogical and with an oblique motive to support the claim of particular individuals, which when issued against the rules without jurisdiction and this subordinate legislation being ultra vires cannot be sustained in law. As a result thereof, this OA is allowed to the extent that without affecting the rights of others, respondents are directed to deem the applicant eligible in criteria sane experience of one year and his name be included in the list dated 14.1.2009. As a result thereof, as per the result of the examination for which applicant was allowed provisionally, he shall be further considered for promotion as AD (WI). No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.