Central Administrative Tribunal - Allahabad
Shyam Bahadur vs North Eastern Railway on 24 May, 2023
OA No. 730 of 2022
Reserved
(On 11.05.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated: This the 24th_ day of _May_ 2023
Original Application No. 730 of 2022
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
1. Shyam Bahadur, a/a 38 years, S/o Sri Wakeel Singh, R/o Railway
Colony, Tanakpur, District Champawat (UK).
2. Nirmalesh Kumar, a/a 35 years, S/o Sri Jaganath Prasad, R/o
Railway Colony, Tanakpur, District Dhampawat (UK).
3. Bind Sharma, a/a 47 years, S/o Sri Keshaw Sharma, R/o Quarter
No. T-18/A, Railway Colony, Canjdundwara, District Kanpur.
4. Dinesh Kumar, a/a 39 years, S/o Bhairaw Prasad, R/o Loco Roadk
Guard Line Fatehgarh, District Farrukhabad.
5. Pradeep Mandal, a/a 38 years, S/o Sri Khiru Mandal, R/o Railway
Colony Baheri, District Bareilly UP.
6. Ashish Kumar, a/a 38 years, S/o Sri Sitaram Prasad, R/o Railway
Colony, Ganjdundwara, District Kasganj, U.P.
7. Arvind Kumar aged about 33 years S/o Sri Maniram Sharma,
Resident of Near Arya Samaj Mandir, A-191 Alok Nagar, District
Bareilly.
8. Rajkumar aged about 44 years S/o Harihar Mahato, Resident of
Railway Colony Kichha (Uttarakhand).
9. Azeez Husain, aged about 40 years S/o Sri Mukhteyar Husain, R/o
118, Chak Mehmood, Old City, District Bareilly.
10. Shivam Yadav aged about 34 years S/o Shri Shiv Kumar Yadav,
R/o Santi Nagar Bhilhore District Kanpur Nagar.
11. Babloo Kumar aged about 39 years S/o Lakhan Prasad, R/o
Harsinghpur Nawada, District Kasganj.
All applicants are presently working in grade pay of Rs. 1900/- at
North Eastern Railway Izzat Nagar Division, Bareilly.
. . .Applicants
By Adv : Shri Vinod Kumar
Page 1 of 25
OA No. 730 of 2022
VERSUS
1. Union of India through General Manager North Eastern Railway,
Gorakhpur-273012.
2. Divisional Railway Manager, North Eastern Railway, Izzat Nagar
Bareilly-243122.
3. Senior Divisional Personnel Officer North Eastern Railway Izzat
Nagar, Bareilly-2431232.
4 Senior Divisional Operating Manager,
North Eastern Railway, Izzat Nagar Bareilly-243122.
5. Ram Gopal Meena S/o Babu Lal Meena
6. Anil Kumar Verma S/o Bhagwan Bux
7. Subodh Kumar S/o Shyamdev Paswan
8. Shailesh Chaudhary S/o Late Rameshwar Chaudhary
9. Yatendra Singh S/o Bhushan Kumar
Respondent No.5 to 9 are working as points-man under the control
of respondent no.2 North Eastern Railway, Izzat Nagar, Bareilly.
10. Mohan Singh, S/o S. Singh, a/a 38 years, R/o Village Baroth, Teh
Mauth District Mathura.
11. Ajay Kumar Kashyap, a/a 38 years, S/o Net Ram, R/o Railway
Colony, Lal Kuan (UP)
12. Ashwani Kumar Srivastava, S/o Brij Kishore Srivastava, R/o 399,
02 Avas Vikas Colony, Kasganj UP.
13. Durgesh Kumar a/a 44 years, S/o Ram Singh, R/o 60 C Ralway
Colony Kashipur Udhamsing Nagar UK
14. Kamal Kishore a/a 29 years, S/o Vinod Kumar, R/p Sahebwala
Peeh Malgodain Road, Mohan Kashganj.
15. Pramod Kumar, a/a 38 years, S/o Ram Prasad, R/o Barha Pilibhit.
16. Prem Chandra Sharma, a/a 35 years, S/o B. Sharma, R/o T/12C
Railway Colony, Hathras City.
17. Mukesh Kumar, a/a 40 years, S/o Het Ram Singh, R/o Naglabeech
Sawabergate Kashganj UP.
18. Rajendra Singh, a/a 38 years, S/o Chitten Singh, R/o Village
Nagela Bhahuti PO Goriha, PS Soran Singh, Kashganj.
19. Yogndra Kumar Sharma, a/a 40 years, S/o S.P. Sharma, R/o
Railway Colony, LalKuan UK.
20. Gaurav Saxena, a/a 39 years, S/o P.N. Saxena, R/o 37 Phase 2,
Basant Bihar Bareilly.
Page 2 of 25
OA No. 730 of 2022
21. Govind Kumar, a/a 35 years, S/o Todilal, R/o Sri Ran Nagar
Colony, Pilibhit.
. . .Respondents
By Adv: Shri Shri Chakrapani Vatsyayan, Shri S.M. Ali, Shri S.K. Om and
Shri P.K. Mishra
ORDER
By Hon'ble Dr. Sanjiv Kumar, Member (A) The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quashing the impugned panel order dated 25.07.2022 issued by respondent no.2 and to direct the respondents to consider the promotion of applicants against the notified vacancies and to issue any other order deemed fit and to award cost.
2. The facts of the applicants is that they are working on the post of Points man in the grade pay of Rs. 1900/- at the different railway stations of North Eastern Railway Izzat Nagar Division Bareilly and their work and conduct have remained satisfactory and they are having unblemished service and are entitled to participate under the departmental promotion rules to Group „C‟ employees working in grade pay of Rs. 1900/-. The respondents have issued notification dated 07.12.2021 for promotion to Group „C‟ employee under 60% departmental quota for the post of Goods Guard, whereby total 44 vacancies were notified, out of which 35 posts were said to have been notified for general candidates, 7 posts of SC candidates and 2 posts for ST candidates. Against the aforesaid notified vacancies, the respondent department has invited the applications amongst the eligible candidates for promotion to the post of Goods Guard under certain terms and condition of the notification. Applicants being one of the eligible and bonafide candidates had applied against the aforesaid notified vacancies, while fulfilling all the terms and condition. Pursuant to the aforesaid notification the written examination was conducted on Page 3 of 25 OA No. 730 of 2022 12.06.2022, the applicants appeared and the result were declared on 12.07.2022 by which the applicants have been declared successful, but their respective marks have not been declared. In the said result the applicants‟ name are found at Sl. No. 54, 50, 53, 52, 41, 38, 37, 36, 34, 33 and 51 respectively. The applicants say that they were surprised that the respondents had issued impugned panel list dated 24.07.2022 by which the names of the applicant were struck-off for the purpose of promotion which they say was quite illegal and arbitrary and discriminatory in nature, and were against Article 14 of the Constitution.
3. The notification dated 07.12.2021, as per the applicants, had total vacancies of 44, whereas in the impugned panel list out of 44 notified vacancies only 40 candidates have been empanelled and rest 4 vacancies have remained unfilled which is said to have been reserved for SC candidates and shall be carried forward in the next selection and departmental promotion, whereas the qualified candidates under the category of general have still not been empanelled. The applicants argued that the respondent authorities cannot apply the reservation roster under the departmental promotion as per law laid down by the Hon‟ble Apex Court in M. Nagraj's case [Writ Petition (Civil) No.61 of 2002 titled M. Nagaraj and others vs. Union of India and others], whereby it has been clearly held that reservation would not be applied under the departmental promotion unless and until necessary data is collected regarding the inadequacy of reservation for SC/STs by the respective department for the cadres meant for reservation in promotion. The applicants say that they have arrayed last five selected candidates to give them opportunity to represent their case, and aggrieved by the said order applicants have submitted their joint representation before respondent No. 2 on 02.08.2022 requesting therein that their promotion be considered as Page 4 of 25 OA No. 730 of 2022 per rules because no reservation roster can be applied under the departmental promotion in view of the law laid down by the Hon‟ble Apex Court in the case of M. Nagraj and Ors vs. Union of India and Ors (supra). They further argue that coordinate bench of this Tribunal Principal Bench New Delhi has already decided the similar issue in Original Application No. 3476 of 2013 (Ram Pher Yadav and others vs. U.O.I. & others) vide judgment dated 22.01.2018. They further cite the CAT Principal Bench orders in cases bunched alongwith that of Diana George and others Vs. U.O.I. & others, Original Application No. 249 of 2016 decided on 02.11.2020, after taking into consideration all recent law on the issue. They further stated that it is clear from the impugned order dated 25.07.2022 that only 12 unreserved candidates have been promoted against 35 posts meant from General category and 23 posts of unreserved category only SC and ST candidates have been promoted without disclosing their respective merit as to whether they have obtained higher marks than the present applicants in the written test as well as on the basis of evaluation of respective service records of the candidates.
4. The applicants further say that the Government authorities have failed to explain the reasons that under which provision the SC and ST candidates have been promoted against the unreserved vacancies which were notified for the general candidates, since there is no special provision under the Railway Service Rules for jumping up the reserved category candidates against the unreserved vacancies. They further say that SC and ST candidates were given special pre-examination training prior to undergoing the selection process, while as the present applicants were even not allowed the said facilities of pre examination training and also they were not allowed their own leave for the purposes of preparation for the aforesaid selection. Meaning thereby this is a very good example of Page 5 of 25 OA No. 730 of 2022 repeated discrimination against the general and OBC candidates with a purpose to reward the SC and ST candidates, and they emphatically argued that as already affirmative action was done for SC/ST through prerequisite training meaning thereby their candidature could not be on equal footing to others and should not be considered against the post of unreserved category which has been notified under notification dated 07.12.2021.
5. The applicants emphatically argued that vide M. Nagrag‟s case (supra) the Hon‟ble Apex Court have directed that reservation in promotion can only be given by the state after obtaining quantifiable data of backwardness of reserved category employees, as in the present case it has not been collected, hence, it may be unconstitutional to give reservation in promotion without such data being collected and substantiated. Hence, they argue that the said order is in violation of Article 14 and 16 of the Constitution. Hence, they request to quash the said panel order dated 25.07.2022 and direct the respondents to consider the promotion of the applicants against the notified vacancies.
6. The official respondents have filed counter affidavit wherein they say that notification dated 07.12.2021 was issued by the Operating Department for promotion to the post of Goods Guard with Grade Pay of Rs. 2800/- Level V under 60% departmental promotion quota against 44 vacancies (Gen. 35, SC 7 and ST 2) and list of inter se seniority of eligible employees was issue on 17.01.2022 as per condition mentioned in the notification dated 07.12.2021. After considering the representation of employees of inter se seniority a corrected seniority list was issued on 08.04.2022 and vide letter dated 13.05.2022 information was given for appearing in written test held on 12.06.2022 to the eligible employees Page 6 of 25 OA No. 730 of 2022 through their respective supervisors. The result of the written test held on 12.06.2022 was declared on 12.07.2022 for promotion in which 58 employees were found suitable and in this regard vide letter No. Ka/254/Goods Guard 60% Departmental Promotion / Selection / Operation / II dated 25.07.2022 by which a panel of 40 employees in which from Sl. No. 1to 35 against general vacancies and Sl. No. 36 to 39 against SC vacancies and Sl. No. 40 against ST vacancy were short listed for promotion. The respondents further say that it is noteworthy to mention that the selection was made under 60% departmental promotion quota as per the direction issued by the Railway Board Circular No. E(NG) I-2011/PM1/26 (RBE No. 17/2014) dated 06.02.2014 and in the said panel the circular issued by the Railway Board No. 95-E (SCT) I / 49 / 5 (2) dated 21.08.1997 has also been complied with which has been subject to final outcome of the pending Court case before Hon‟ble Supreme Court on reservation in promotion. In para No. 10 of the annexure of the letter dated 21.08.1997 the respondents categorically state that while operating the roster, persons belonging to communities for whom reservation has been made, but who are appointed on merit and not owing to reservation, should not be shown against reserved points as clarified in the 1997 circular. Several reserved category candidates on the basis of merit i.e. marks obtained, service records and seniority secured place on the panel dated 25.07.2022 and the said panel has been approved by the competent authority.
7. In their parawise reply the respondents for para 4.12 of the OA, respondents have mentioned at para 19 of the counter affidavit at page 13 that the contents of paragraph No. 4.12 of the OA are wholly misconceived hence denied. They submit that the selection panel of 40 employees issued on 25.07.2022 are in compliance of Railway Board Page 7 of 25 OA No. 730 of 2022 letter No. 95-E (SCT) I / 49 / 5 (2) dated 21.08.1997 which is applicable and relevant and according to rules. For para 4.26 of the OA in their counter affidavit the respondents mentioned in their para 27 at page 16 that the contents of paragraph No. 4.26 to 4.28 of the OA need no comments as these are matter of record. They emphasize that they have done the promotion as per the Railway Board circular dated 06.02.2014 and 21.08.1997 and the said panel is as per prescribed rules and procedures and they have filed those rules with the counter affidavit. They prayed that the OA may be dismissed.
8. Private respondents No. 5 to 9 have also filed their counter affidavit. They, while agreeing with the general facts of the case, say that strictly as per rules they have been selected. Applying the reservation policy during the selection process as per the instructions of the Railway Board dated 22.06.2022 is well followed by the Selection Committee while finalizing the foresaid selection process and the applicants have failed to challenge the said Railway Board circular dated 22.06.2022. Hence, they can‟t challenge the present panel and so the case of the applicant should be dismissed.
9. Further counter affidavit has been filed by private respondent Nos. 10 to 21 wherein while agreeing the general facts of the case they say that the selection is as per rules and they are selected as general candidates and their names appear in the panel at Sl. No. 20, 4, 6, 7, 9, 10, 17, 18, 19, 24, 26 and 27 respectively and applicants could not qualify the selection in question and hence their names do not appear in the panel dated 25.07.2022, hence, as per the case in the Hon‟ble Apex Court of Om Prakash Shukla vs. Union of India and Ors they are restrained from challenging the said panel as they participated in the said proceedings. Page 8 of 25 OA No. 730 of 2022 They further say that they being general candidates their case has to be distinguishable from respondent Nos. 5 to 9 who are SC category candidates and if in their case there are any irregularities it should be distinguishable and can be rectified separately without affecting the promotions of these general category candidates having name in the panel. They further argue that the advertisement dated 07.12.2021 had shown clearly the vacancies earmarked for SC and ST and the applicants have participated in the selection process without challenging the said notification, and hence at this stage applicants are restrained in taking the plea that there can‟t be any reservation in the matter of promotion that too after publication of the panel dated 25.07.2022. Hence, they request to dismiss the OA.
10. Rejoinder affidavit has been filed by the applicants wherein they reiterated some of the facts of the OA and they specifically argue that while preparing the impugned panel list dated 25.07.2022 while placing the reserved candidates against the general vacancies, even those candidates lower in merit than the general candidates find place in the panel, and as such the impugned panel list dated 25.07.2022 does not sustain in the eye of law and is liable to be quashed and set aside as the panel is not as per merit list prepared and marks obtained as shown by the respondents themselves. They further state that principle of applying the merit points to occupying the general seat by the reserved candidates who are higher in merit does not apply in the departmental promotion, whereas this principle should have been applied against the selection of direct recruitment. Apart from aforesaid the respondents / selection committee wrongly acted upon while promoting the several reserved candidates who are less in merit than the present applicants which are very well established on the fact of record from bare perusal of the merit Page 9 of 25 OA No. 730 of 2022 chart of the promotion as enclosed as CA-3. The applicants quote the case of Pawan Kumar Bharti at Sl. No. 35 in the merit list who has secured 31 marks in written examination and 24 marks for service record and 16.22 marks for seniority, aggregating to 71.22 marks; while the applicant No. 7, who is placed in the merit list at Sl. No. 41 has secured 35.5 marks in written, and 30 marks for service record and 14.4 marks for seniority, aggregating to 79.9 marks; and by this individual case they want to point out that the aforesaid list clearly demonstrates that all the applicants have been kept out of the panel inspite of the fact that their marks obtained in the written examination is much higher than the last empanelled candidate from reserved category in the impugned panel list and even in aggregate marks most of the applicants are higher than the aforesaid empanelled reserved category candidates. They further argue that, in this view the entire selection proceedings stand vitiated under the law and the present applicants deserved to be empanelled by virtue of their merit secured in the written examination etc. Hence, they request to allow their OA and set aside the said panel and to direct the respondents to reconsider the case of the applicants.
11. Further rejoinder affidavit has been filed to the counter affidavit filed by the private respondent Nos. 5 to 9 and the applicants emphatically say that respondent No. 6 has secure only 75.8 as aggregate marks, whereas the applicant No. 7 has secured 79.9 marks and remained outside the panel; whereas respondent No. 6 is occupying an unreserved post. They say that respondent No. 8 Shailesh Chaudhary has secured only 31 marks in the written examination and in aggregate 70.24 marks only, which is less than the marks scored in aggregate by the present applicants. They further state that the Railway Board circular dated 22.06.2022 cannot be applicable in their case because the selection in question was finalized Page 10 of 25 OA No. 730 of 2022 with the rules and instructions applicable earlier than the said circular. Hence, they request to allow the OA.
12. The case came up for final hearing on 11.05.2023. Shri Vinod Kumar, learned counsel for the applicants and Shri Chakrapani Vatsyayan, Shri S.M. Ali, Shri S.K. Om and Shri P.K. Mishra, learned counsel for the respondents were present and heard. We have gone through the record and have carefully examined the rival contentions.
13. From the pleadings of both the parties following issues are in dispute and come for our consideration:-
Q i. What are the modalities of selection of 60% quota for promotion to the post of goods guard, where from 5 different cadres officials are joining together and competing for promotion?
Q ii. Is the present selection strictly as per the modalities provided in the notification dated 07.12.2021 for promotion?
Q iii. Is the case of Hon‟ble Apex Court Judgment in the case of M. Nagaraj and others vs. Union of India and others (supra) and Jarnail Singh & Ors. vs. Lachhmi Narain Gupta & Ors. - Civil Appeal No. 629 of 2022 and CAT orders in Original Application No. 3476 of 2013 - Ram Pher Yadav and others vs. U.O.I. & others are relevant in this case?
Q iv. By giving pre examination training and similar affirmative action does the department make SC/ST candidates a class apart who would not qualify for the general category post?Page 11 of 25 OA No. 730 of 2022
Q v. Does the promotion envisaged in the instant case attracted the provisions of the circular dated 21.08.1997 (Annexure CA-2 page 23 of the counter affidavit)?
Q vi. If so, what orders?
Our findings to Q No. (i) and (ii) (we take them together as they are interrelated)
14. From the record it is evident that the present selection is based on the notification dated 07.12.2021 which is not disputed. The said notification at reference mentions other letters dated 12.05.2017, 27.02.2018, 15.112.2018, 14.12.2018 and 20.03.2019 only and none others. On simple perusal of this notification the subject is "विषय:- ऩररचाऱन विभाग में गाडड माऱ ग्रेड ऩे 2800 प्रतिशि विभागीय ऩदोन्नति कोटे के अन्िगडि ररक्ि ऩदों को भरने हे िु चयन के सम्बंध में ।" and on this basis the selection was made. Here, there is under "पात्रता की शतें", and wherein it is written that as per the Railway Board letter dated 12.05.2017 certain categories of employees in certain grades who have three years of work experience of five categories were eligible to apply. The categories are as under:-
(अ)-गाडी लऱवऩक (ग्रेड ऩे 1900) ऱेिऱ-2, प्रिर गाडी लऱवऩक (ग्रेड ऩे 2400) ऱेिऱ-4।
(ब)- िाण्जिय लऱवऩक ( ग्रेड ऩे 2000) ऱेिऱ-3, टटकट कऱेक्टर ( ग्रेड ऩे 2000) ऱेिऱ -3।
(स)- केबबनमैन (ग्रेड ऩे 1900) ऱेिऱ-2,एिं (ग्रेड ऩे 2400) ऱेिऱ-4 ण्विचमैन/ऱीिरमैन/पिांइटमैन (कॉटािाऱा) शंटमैन (ग्रेड ऩे 1900) ऱेिऱ-2।
(द)-सहायक गाडड (ग्रेड ऩे 1900) ऱेिऱ-2, िररष्ठ सहायक गाडड (ग्रेड ऩे 2400) ऱेिऱ-4।
Page 12 of 25 OA No. 730 of 2022 (इ)- रे ऱिे बोडड के ऩत्र सं E(NG)I-2012/PM 1/22 (आरबीई सं. 30/2018) टदनांक 27.02.2018 के अनस ु ार शंटटंग मावटर/ शंटटंग िमादार (ग्रेड ऩे 2400) ऱेिऱ-4।
15. Then under "ररण्क्ियों को भरने हे िु प्रतिशििार तनम्निि हैं":-
क्रम सं. श्रेणी बुऱाये िाने का
प्रतिशि
1 प्रिर गाडी लऱवऩक/ गाडी लऱवऩक, िाण्जिय 28
लऱवऩक, टटकट ऩरीऺक,
ण्विचमैन/ऱीिरमैन/शंटटंग मावटर/ शंटमैन/
की मैन, सहायक गाडड, िररष्ठ सहायक गाडड,
ग्रेड ऩे 1900/-, 2400/-
2 िाण्जिय लऱवऩक 2000 4
5 केबबनमैन / कॉटािाऱा ग्रेड ऩे 1900 28
कुऱ 60
16. In "चयन का प्रकार" it is mentioned that as per Railway Board letter dated 07.08.2003 in the written examination those who have secured 60% marks, their records will be evaluated and as these Goods Guard posts has reservations for SC/STs and there are condition that only those who have obtained 60% marks will be in the panel for being considered and for written examination there will be 50 marks and then it is given how written examination will be conducted and then other conditions to be taken into account are mentioned. The 3X formula for calling employees will be there and black and blue pen for answering will be required and 60% departmental promotion quota successful employees have to go through the medical test category „A‟/2, which will be necessary to pass and continuous 3 years experience will be required, and ACP and MACP will not be considered for promotion, and relevant date will be 07.12.2021 to reckon service. Only this much details were given in the said notification. Page 13 of 25 OA No. 730 of 2022
17. There is no reference in this notification of the letters dated 06.02.2014 of the Railway Board which is mentioned by the official respondents in their counter affidavit and which is annexed at page 22 of the counter affidavit which has been relied for the selection procedure for promotion to selection post and formation of panel in the order of seniority among those securing qualifying marks. In the notification dated 07.12.2021 also clearly it is mentioned that it is for 44 posts (35 for General, 7 for SC and 2 for ST).
18. What we gather out of this notification and as in the reference of this notification dated 07.12.2021 for promotion is that there was no mention of the circular dated 06.02.2014. Hence, how the circular dated 06.02.2014 is relevant to the selection in this case is not very clear. What appears on the cursory reading of the notification dated 07.12.2021 that in the said selection, as the applicants were coming from 5 different cadres hence the same was based on the qualifying marks obtained in the examination and it was stipulated that if someone gets less than 60% marks they were not considered qualified as that was the „bench mark‟ to be crossed for efficiency. And what is mentioned that the people who had crossed that bench mark in 1:3 formula they will be called for 44 notified vacancies that means again it has to be seen that in what proportion General, SC and STs were to be called as per this formula. Doesn‟t it mean maximum 105 General candidates, 21 candidates of SC and 6 candidates for ST could have been called for verification of records?
19. From simple reading of the said circular, one may infer that no marks is assigned for सेवा मूल्ाांकन, barring if there was any adverse entries in the record those will be efficiency bench mark as in practice ordinarily it is reckoned, but no other specific bench marks have been Page 14 of 25 OA No. 730 of 2022 prescribed. If that is the situation then only with adverse entries in the service records someone will be eliminated all others have to be considered as qualifying. We cannot find of any mention of any marks to be provided for service records and, if at all what will be the modification for such marks allocation? We also do not find any mention of marks being provided for seniority, based on some seniority list. Further, we do not find in the said notification dated 07.12.2021 any mention of selection based on some seniority. We do not find mention of circular dated 06.02.2014, which is annexed with the counter affidavit in the vacancy notification dated 07.12.2021. Hence, how was the contents of the said circular quoted in the counter affidavit, relevant in this selection is not clear.
20. But, on further perusal of the said letter dated 06.02.2014 we find a vague mention that it pertains to "selection procedure for promotion to selection posts formation of panel in the order of seniority amongst those securing qualifying marks". There in at para 2 (A) it is mentioned that, "selection of posts as per avenue of promotion by restricting the field of eligible to three times" (as subject). And, "Normal selection with seniority marks and 60% pass marks in the aggregate including marks including marks in the written examination, record of service and seniority. Panel being made as per seniority with 80% and above classified as outstanding in order of their seniority allowing them to supersede not more than 50% of the field of eligibility" (as clarification). On the whole the above two sentences in the said circular dated 06.02.2014 are too cryptic to be clearly understood as to its intent, as to how it will be implemented? Because there is no clear mention in the said circular as to what will be the proportion of weightages of the written test, and the service record and the seniority. Page 15 of 25 OA No. 730 of 2022
21. Whereas, the respondents in the counter affidavit have filed at page 30 to 33 annexure CA-3 the relative marks of different candidates where written test marks are given with a total of 50 marks for the written test, and service record having 30 marks, and seniority having 20 marks each in the percentages. Respondents have not been able to convince us from where this formula of 50% + 30% + 20% is arrived at, no circular is filed to substantiate the same. Further, no circular is guiding us as to how these aggregate marks have to be used to prepare the select list.
22. What appears to be that this aggregate percentages in this document has been used for only ascertaining the number of people who supersede others by obtaining 80% in aggregate to be considered as outstanding candidate as mentioned in the notification dated 06.02.2014 of the Railway Board No. E(NG) I-2011/PM1/26 (RBE No. 17/2014). But these details are not forthcoming in the vacancy notification dated 07.12.2021 that these will be the modalities and consideration for promotion. Also, closure scrutiny of the circular dated 06.02.2014 it mentions of formation of panel in order of seniority amongst those securing qualifying marks. Now which seniority it is talking of is not clear, was the said seniority based on this aggregate marks as provided in annexure CA-3 based on written test, service records and seniority assessed in 50:30:20% proportion, or was it some other seniority list which existed prior to the examination is not very clear?
23. The counsel of the official respondents say that it is based on some seniority list which existed prior to the examination, which is contested by the applicants. The case came for mention to be heard on 11.05.2023. This question was again asked and the official counsel for the Page 16 of 25 OA No. 730 of 2022 respondents said that it is some seniority list which existed before the examination which they have relied and used, hence, the examination process was only for the purpose of qualifying marks to be obtained for efficiency bar and those who have not obtained 60% have been eliminated, and the exercise of annexure CA- 3 is for the purpose of finding outstanding candidates for superseding others only. And that they have not made promotions based on the marks given in this document (Annexure CA-3), but based on the seniority which existed before the examination. Whereas, the applicants emphatically say that the promotion should be based on seniority list prepared based on the aggregate marks and not some earlier seniority, which doesn‟t exists, as the applicants have come from different cadres. On record nowhere the respondents have filed such inter se seniority list which existed prior to the examination of all the candidates eligible for examination called in the proportion of 1:3.
24. Again, from the record there is no clarity and one can only infer that the notification for this particular promotion dated 07.12.2021 is in no where giving details in its reference of the letter dated 06.02.2014 quoted by the respondents in their counter affidavit, hence, the applicability of the said document and the process gone through by the respondents in the instant case does not appear to be coherent and transparent and understandable and in our considered opinion appears to be perverse to that extent and vitiates the whole selection process.
25. If the respondents have to go by the notification dated 07.12.2021 for the instant promotion, they have to clearly go by the contents of the said notification and ensure that the selection is based on criteria laid down therein and everyone who had obtained 60% and more who were eligible and amongst the eligible candidates based on merit who ever Page 17 of 25 OA No. 730 of 2022 have more marks should have been selected. Otherwise by bringing extraneous criteria based on circular dated 06.02.2014 which were not clearly defined in the said vacancy notification dated 07.12.2021, and which does not clearly lay down the selection process in an unambiguous manner which could be understood by a lay person also in our considered opinion does not appear to be proper. Hence, we are not inclined to agree with the contention of the learned counsel for the official respondents that they have relied three different criteria, one criteria given in the original notification date 07.12.2021 about qualification of candidates falling 60% bench marks in the written test being eliminated at the outset, second criteria of qualification of outstanding candidates bases on the letter dated 06.02.2014 and giving fast track promotion to certain candidates having 80% and above aggregate marks classified as outstanding who supersede others; and then thirdly, relying on some third seniority list which we are unable to scrutinized as it is not placed before us, which they rely for giving present promotion, which have caused such anomaly as pointed out by the applicants in their rejoinder affidavit against the para 6 that the candidate Pawan Kumar Bharti at Sl. No. 35 as qualified general category seat in the merit list (dated 25.07.2022 Impugned order), who appears at Sl. No. 28 in the marks list (Page 31 of the counter affidavit - Annexure CA-3), has secured only 71.22 marks, whereas one of the applicant No. 7 placed at Sl. No. 41 in the merit list and secured 79.9 marks and not selected. Hence, we have no doubt to come to a conclusion that the selection process was in-coherent, nonspeaking and perverse and need to be interfered with. So, our answer to the first two questions are that the selection impugned order was not strictly in terms of the original vacancy notification dated 07.12.2021. It was clearly based on certain extraneous criteria not defined therein. Whereas, the selection should be strictly as Page 18 of 25 OA No. 730 of 2022 per the guidelines elaborated in the vacancy notification without depending on other criteria imported from documents not referred therein. Our findings to Q iii is following:
26. As this case could be decided based on the first two questions, and we need not go for examining other issues framed, but as the third question pertains to very important Hon‟ble Apex Court ruling relevant to the issue of reservation in promotion, we have little option but to examine the same. As far as the third question is concerned, as the notification dated 07.12.2021 clearly said that there will be out of 44 vacancies, 35 for general candidates, 7 for SC candidates and 2 for ST candidates, there was clear reservation prescribed there in and the said notification is not challenged, hence, it may not be right at this stage for the applicants to challenge reservation in promotion based on any other basis. Although, form the simple reading of the case laws laid down by the Hon‟ble Supreme Court in the case of M. Nagaraj & Others vs. Union Of India & Others dated 19.10.2006 (supra) and Jarnail Singh & Ors. vs. Lachhmi Narain Gupta & Ors. - Civil Appeal No. 629 of 2022 dated 28.01.2022 of the Hon‟ble Apex Court and based on which circular dated 12.04.2022 from DOPT was issued with subject "Reservation in promotions -
procedure to be followed prior to effecting reservation in the matter of promotions by all departments of the Central Government". In which it is mentioned as below:-
"The undersigned is directed to bring to your notice the judgment dated 28.01.2022 of the Supreme Court of India in the case of Jarnail Singh and Ors. vs. Lachhmi Narain Gupta and Ors. (Civil Appeal No. 629 of 2022 arising out of SLP (C) No. 30621 of 2011} and other connected matters. Pursuant to this judgment, the Ld. Attorney General for India has rendered his considered opinion in the matter.
2. In the judgment dated 28.1:2022, the Supreme Court has set out the conditions that are to be satisfied by the Government for the purpose of implementing the policy of reservation in promotions. These conditions are:
(i) Collection of quantifiable data regarding inadequacy of representation of Scheduled Castes and Scheduled Tribes;
(ii) Application of this data to each cadre separately; and Page 19 of 25 OA No. 730 of 2022
(iii) If a roster exists, the unit for operation of the roster would be the cadre for which the quantifiable data would have to be collected and applied in regard to the filling up of the vacancies in the roster.
This judgment currently holds the field."
27. Simple reading of the circular dated 12.04.2022 of the DOPT; it is clear that it was a mandatory provision to be followed strictly before giving any reservation in promotion. As the selection list came out on 25.07.2022, after this circular dated 12.04.2022 and the order of the Hon‟ble Supreme Court in Jarnail Singh & Ors. vs. Lachhmi Narain Gupta & Ors. - Civil Appeal No. 629 of 2022 dated 28.01.2022 which is very relevant in this case as required to be complied with. Hence, the relevance of that circular has also to be examined by the respondents before giving reservation in promotion, and proceeding further in this instant case of promotion with reservation for SC/STs. On our specific question to the respondents, if they had complied with the collection of quantifiable data regarding inadequacy of representation of SC/STs in this cadre in question, we got answer in negative. Hence our answer to the third question framed supra is in affirmative, and this circular and the orders of the Hon‟ble Supreme Court quoted supra are very relevant in the instant case, and need to be complied by the department, before embarking on promotions for any cadre where reservations have to be given to the SC/STs.
Our answer to Q (iv) is following:
28. DOPT OM No. 36011/1/98-Estt.(Res) dated 01.07.1998 is quite relevant to this case. The subject of the said OM mentions, "Relaxations and concession for SCs and STs classification regarding" The third paragraph of the said OM reads as follows:
"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selection an SC/ST/OBC candidates, for example in the age limit, experience qualification, permitted number of chances, in written Page 20 of 25 OA No. 730 of 2022 examination, extended zone of consideration larger than what is provided for general category candidates etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies."
29. On simple readings of this circular it is very clear that only such SC/ST candidates who are selected on the same standard as applied to general candidate shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST candidates, for example in the age limit, experience qualification, permitted number of chances, in written examination, extended zone of consideration larger than what is provided for general category candidates etc., the SC/ST candidates are to be counted against reserved vacancies.
30. As argued by the learned counsel for the applicants affirmative action of 3 weeks training for the SC/ST candidates before taking the multiple choice objective type test makes them a class apart as defined in the above circular which gave them edge over others in clearing the efficiency bar of 60% marks in the said test and also propped many of them with 80% and above marks qualifying them for accelerate climb up superseding others, should not qualify them to be considered as merit candidate for being adjusted against the general category seats appears to be convincing. Above circular gives only illustrative list of such conditions, and before considering such per-trained candidates for general category promotion seats, the respondent must clearly examine the issue as per the OM dated 01.07.1998 quoted supra. After examining the instant case with the OM dated 01.07.1998 we are inclined to answer this question in affirmative.
Page 21 of 25 OA No. 730 of 2022 Q (v) Does the promotion envisaged in the instant case attracted the provisions of the circular dated 21.08.1997 (Annexure CA-2 page 23 of the counter affidavit)?
31. On closer perusal of the said circular dated 21.08.1997 shows that it gives provisions regarding adjusting meritorious SC/ST candidates in the general merit seats in a vacancy based roster, if such SC/ST candidates qualify for promotion on their own merit. But does this apply to all departmental promotions? The said circular of Railway Board does not shed much light on this issue.
32. OM of DOPT No. 360/17/2001-Estt.(Res.) dated 31.01.2005 shed some light on this issue. Wherein the subject matter is, "Reservation in promotion - Treatment of SC/ST candidates promoted on their own merit". And the contents read as following:-
"The undersigned is directed to refer to this Department's th O.M.No.36028/17/2001-Estt.(Res.), dated 11 July, 2002 whereby it was clarified that the Scheduled Caste and Scheduled Tribe candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points. References have been received seeking clarification on the following points:
(i) The date of effect of the O.M. No.36028/17/200 1-Estt.(Res.), dated 11.7.2002; and
(ii) Whether the orders will apply in case of promotions made by non-selection method.
2. It is clarified that the O.M. No.36028/17/2001-Estt.(Res.), dated 11.7.2002 takes effect from the date of its issue i.e. with effect from 11.7.2002. However, the cases where SC/ST candidates promoted on their own merit before 11.7.2002 have been adjusted against unreserved points need not be re-opened.
3. It is also clarified that since in the case of promotions by non- selection, promotions are made on the basis of seniority-cum- fitness and the concept of merit is not involved in such promotions, the O.M. dated 1 1.7.2002 does not apply to the promotions made by non-selection method."
33. On closer perusal of the above, it is clear that since in the case of promotion by non-selection promotions are made on the basis of seniority-cum-fitness and concept of merit is not involved in such Page 22 of 25 OA No. 730 of 2022 promotions, the OM dated 11.07.2002 does not apply to the promotions made by non-selection method. And OM dated 11.07.2002 says:-
"(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualification will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion alongwith other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points of reservation in future/further promotions, if any.
(iv) 50% limit in reservation will be computed by excluding such reserved category candidates who are appointed / promoted on their own merit."
34. On closer scrutiny we can find that purport of the Railway Board OM dated 21.08.1997 is same as that of DOPT OM dated 11.07.2002 (supra). So, it is clear that not in all departmental promotions SC/ST candidates appointed by promotion would qualify to be adjusted against the general vacancy.
35. Hence to give the benefit of circular dated 11.07.2002 of DOPT or the OM of Railway Board dated 21.08.1997, the authorities must first ascertain, if the promotion is based on merit or seniority.
36. In the instant case if the promotion was strictly based on the original vacancy notification dated 07.12.2021 it would have been based on marks obtained in the qualifying examination, so it would have been based on merit and all those SC/ST candidates who would have qualified on merit alone, would have been eligible for promotion against general post. However, the authorities in the instant case have super imposed the provisions of OM dated 06.02.2014 as they aver in their counter affidavit, to effect promotions based on some prior existing seniority list, Page 23 of 25 OA No. 730 of 2022 and the exam and marks is only used for eliminating certain candidates as nonqualified (having less than 60% marks in written test) and to give accelerated promotion to others superceding certain candidates (those having more than 80% marks in aggregate of written test, service records and seniority weightages in 50:30:20 % proportion). Hence, the nature of instant promotion was essentially a promotion on the basis of seniority-cum-fitness and essentially merit was not involved in such promotions, and as clarified in the OM dated 31.01.2005, the OM dated 11.07.2002 does not apply to the promotions made by non-selection method, so in such cases SC/ST candidates could not have been adjusted against general vacancy. Authorities should be very cautious and careful to define the promotion and apply those rules in each case after ascertaining the nature of promotion. In the instant case methodology of promotion itself appears to be unclear and disputed.
37. Other contentions taken by the parties are left open as they are not relevant at this stage.
38. From the above it is clear that the applicants have made out clear case for interference with the impugned order. Hence, in view of the foregoing discussions we pass following orders:
"OA is allowed. The impugned order dated 25.07.2022 is set aside and the case is remanded back to the competent authority to reexamine the whole process of selection and do promotions strictly in terms of notification dated 07.12.2021. If they find that the notification dated 07.12.2021 was incomplete and vague and not implementable, they may have liberty to completely eschew the same and do the exercise denovo if required and so advised. Selection process should be clearly defined in the vacancy circular and the selection should be strictly in terms of the said selection process so laid down. All reservation in promotion should strictly be in Page 24 of 25 OA No. 730 of 2022 compliance with the circular dated 12.04.2022 and OM dated 01.07.1998, 31.05.2005 and 11.07.2002 and the relevant circulars of DOPT and the Hon'ble Apex Court orders quoted (supra). All associated MAs, if any, stands disposed of. No costs".
(Dr. Sanjiv Kumar) (Justice Om Prakash VII)
Member (A) Member (J)
/Piyush/
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