Central Administrative Tribunal - Mumbai
Vinod G. Joshi And Ors. vs Union Of India (Uoi) And Ors. on 24 November, 2006
Equivalent citations: 2007(2)SLJ115(CAT)
ORDER Muzaffar Husain, Member (J)
1. The applicants 10 in number have filed this O.A. challenging the Notification dated 27.6.2005 issued by Senior DOM (E) BCT convening the selection for formation of panel for filling up of 39 vacancies of passenger guard, in scale Rs. 5000-8000. They are also challenging the letter dated 09.3.2006 whereby panel of 24 candidates has been published. The applicants are seeking the following relief:
(a). This Hon'ble Tribunal may graciously be pleased to call for the records of the case from respondents and after examining the same, be pleased to quash and set aside the Notification dated 27.6.2005 and Panel of Passenger Drivers (Goods) dated 09.3.2006 with all consequential benefits.
(b) This Hon'ble Tribunal may further be pleased to direct the official respondents to consider the case of the applicants for their lateral induction as Passenger Guards without subjecting them to written test and only by considering their record of service.
(c) Cost of this original application be provided for.
(d) Since the cause of action, respondents and the reliefs sought by all the applicants are same, applicants be permitted to file a Joint Original Application.
(e) Any other and further order as this Hon'ble Tribunal may deem fit, proper and necessary in the circumstances of the case.
2. The factual background forming the foundation of the subject matter of controversy involved in this case is as follows. The applicants are working on the post of Senior Goods Guard in Mumbai Division of Western Railway in the pay scale of Rs. 5000-8000. Prior to their promotion to the post of Senior Goods Guard they were working on the post of Goods Guard in the scale of Rs. 4500-7000. respondent No. 2 issued a Notification dated 27.6.2005 convening the selection for formation of panel to the post of Passenger Guard in the scale of Rs. 5000-8000. By the said notification Senior Goods Guard in the scale of Rs. 5000-8000 and Goods Guard in the scale of Rs. 4500-7000 were called for the selection. The names of applicants were included in the list of candidates eligible to appear for the selection. Prior to the selection convened by Notification dated 27.6.2005 the official respondents never used to conduct the written test to fill up the post of Passenger Guards and only a viva voce test used to be conducted. However, respondents No. 2 announced written test for the post of Passenger Guard vide letter dated 30.9.2005. By the said letter, eligibility list was also revised and fresh list was published. The names of applicants figures in the revised list also. The written test was held on 22.10.2005 and 09.11.2005. Thereafter, respondent No. 2 published the result of written test on 06.02.2006 and the senior most Senior Goods Guards from SI. Nos. 1 to 32 were declared as failed in the written test; whereas name of the most junior Goods Guard, who was at SI. No. 104 in the list of eligible candidates was declared passed. A representation was addressed on 17.02.2006 by senior most person working on the post of Senior Goods Guard and it was requested for making promotion as per seniority. A representation was also addressed on 17.02.2006 to Secretary, Railway Board (Vigilance Department) alleging malpractice in the selection. Respondent No. 2 however, went ahead with the selection and published the panel dated 09.3.2006 of 24 candidates out of them 12 candidates are Senior Goods Guards and 12 are Goods Guards. However, posting orders in respect of selected candidates are not yet issued. Aggrieved by the action* of respondents in making the Senior Goods Guards in the scale of Rs. 5000-8000 to appear for written test for selection to the post of Passenger Guard carrying the pay scale of Rs. 5000-8000, the applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985.
3. In reply filed by respondents 1 and 2 it is stated that the post of Passenger Guard scale Rs. 5000-8000 is classified as 'Selection' and mode of filling up of post was viva voce test. In terms of Railway Board letter dated 07.8.2003, rules governing promotion of Group 'C' staff Para 215 substituted that "selection post shall be filled by a positive act of selection made by Selection Boards, from amongst the staff eligible for selection. The positive act of selection shall consist of only written test to assess the professional ability of the candidates." The procedure as revised above is applicable to selections notified on or after the date of issue of letter dated 07.8.2003. the eligibility list was notified on 27.6.2005 and the date of written test fixed on 22.10.2005 along with the eligible staff appeared in 'A' list of eligibility list notified vide letter dated 27.6.2005. It is also stated that as a result of written test held on 22.10.2005 and supplementary test on 09.11.2005 the employees who were qualified the written test obtaining the qualifying marks, were declared passed vide letter dated 06.02.2006. 117 eligible candidates were called for written test and out of them, 74 candidates were appeared in the written test. Out of 74 candidates, only 24 candidates have qualified the written test. It is not fact that the SI. No. 1 to 32 all were failed. Out of these 32 candidates, 06 candidates at SI. No. 01 to 05 and SI. No. 10 were absent in the written test.
4. In the reply filed by respondent Nos. 3 and 4 it is stated that respondent No. 2 conducted selection for the post of Passenger Guard where applications were invited from Senior Goods Guards and Goods Guards to be posted as Passenger Guard in accordance with law because Passenger Guard post is honourable and prestigious post. Though the grade of Senior Goods Guard and Passenger Guard is same, Passenger Guard is a selection post. The applicants appeared in the written test for selection of Passenger Guard but all of them declared failed and juniors have been declared successful and selected by the Selection Board, They have no right to challenge the selection after they have participated in the selection process which was fair, legal and in accordance with the rules and regulation. It is also stated that the O.A. suffers from the defect of non-joinder of necessary parties inasmuch as 22 employees who have been declared passed and empaneled for promotion as Passenger Guard are necessary parties and the applicants have failed to implead them.
5. Intervenors 1, 2 and 3 also filed written submission.
6. Mr. S.V. Marne, learned Counsel appearing on behalf of applicants advanced contention that the Notification dated 27.6.2005 and the resultant panel dated 09.3.2006 are absolutely illegal and void. Respondents have illegally conducted the selection for the post of Passenger Guard which carries the pay scale of Rs. 5000-8000. Senior Goods Guards, who were also in the pay scale of Rs. 5000-8000 have been illegally subjected to the written test. Learned Counsel submitted that the issue is no more res-integra and it is covered by several judgment of this Tribunal. Learned Counsel placed reliance on the judgment in case of Gulam Mustafa v. Union of India decided by Allahabad Bench of this Tribunal on 01.01.2003. The Allahabad Bench held that induction of Senior Goods Guards in the same pay scale is not a vertical movement but a lateral induction. The said judgment was upheld by Allahabad High Court by order dated 09.4.2003 dismissing the writ petition filed by Railways. He also placed reliance on a decision in case of Mithilesh Kumar v. Union of India in O.A. No. 1268/04 decided on 01.02.2006 by Allahabad Bench of this Tribunal. It was held therein that Senior Goods Guards being in the identical pay scale, should not be subjected to any written test and that their selection for lateral induction as Passenger Guards should be conducted without holding any written test, but only by scrutiny of service records or viva voce. Learned Counsel further placed reliance on a decision of Calcutta Bench of this Tribunal in O.A. 274/03 in case of Prabir Kumar Chattopadhyay v. Union of India decided on 27.5.2005. The Tribunal set aside the panel and selection of Passenger Guards holding that Senior Goods Guards cannot be subjected to written test. Learned Counsel submitted that it is now settled position that the Senior Goods Guards cannot be subjected to written test for their lateral induction as Passenger Guard. Respondent No. 2 has illegally subjected the applicants for written test and has declared them failed. By subjecting the senior most Senior Goods Guards to the selection, the official respondents have facilitated their supersession by their rank junior working on the lower post of Goods Guard. Learned Counsel further submitted that the applicants have been working on the post of Senior Goods Guard for a considerable period and they cannot be made to compete with the candidates working in the post of Goods Guard for selection to the post of Passenger Guard carrying the same scale of pay. For lateral induction, Senior Goods Guards will definitely have priority claim as compared to Goods Guards. Therefore, the suitability for Senior Goods Guards is required to be considered only on the basis of service record.
7. Mr. V.S. Masurkar learned Counsel appearing on behalf of official respondents contended that the scale of Rs. 5000-8000 is identical for the post of Senior Goods Guards as well as Passenger Guards but the post of Senior Goods Guard is only a non-functional grade; whereas the post of Passenger Guard is functional grade. The post of Senior Goods Guard is classified as non-selection post and staff promoted as Senior Goods Guard on the basis of seniority-cum-suitability just on the basis of service record. Whereas the post of Passenger Guard is classified as selection post. There is no change of duties in case of Goods Guard and Senior Goods Guard whereas on promotion as Passenger Guard duties are also changed. The rules for fixation of pay of Senior Goods Guard scale Rs. 5000-8000 and Passenger Guard scale Rs. 5000-8000 are different, only because that the Senior Goods Guard is non-functional scale and Passenger Guard is functional scale. Therefore, Senior Goods Guard scale Rs. 5000-8000 cannot be promoted as Passenger Guard scale Rs. 5000-8000 without passing selection. The selection conducted vide respondents letter dated 27.6.2005 and panel notified vide memorandum dated 09.3.2006 is according to rules and regulation issued by Railway Board. Learned Counsel further contended that in terms of Railway Board letter dated 07.8.2003 an Advance Correction Slip 150 to IREM Volume I Chapter-II Section (B) Rules governing promotion of Group 'C' staff in existing Sub-para (a) substituted provides that selection post will be filled by positive act of selection made by Selection Board among the staff eligible for selection. The positive act of selection shall consist of written test to assess the professional ability of candidates. The procedure as revised is applicable to the selection notified on or after issue of letter dated 07,8.2003. Therefore, amended rule will be applicable to the impugned notification dated 27.6.2005. He further argued that Railway Board issued letter dated 09.10.2003 restructuring of certain Groups C and D cadre. Para 3 of the said circular provides the method of fixation of pay under Rule 1313 (FR 22). It also provides the benefit of fixation of pay will now be admissible in the case of functional promotion such as from Senior Goods Guard to Passenger Guard though in the identical scale of pay.
8. Mr. CM. Jha learned Counsel appearing for respondents 3 and 4 contended that the official respondents have conducted selection for the post of Passenger Guard which carries the scale of Rs. 5000-8000. The official respondents did not force the applicants to appear in the selection, but they themselves have responded to notification dated 27.6.2005 and submitted their willingness to take part in the selection. They had participated in the selection process without raising any objection and having declared failed in the written test, now they cannot challenge the process of selection. Learned Counsel has placed reliance in case of Madanlal and Ors. v. State of Jammu & Kashmir . Learned Counsel has also placed reliance on the decision of Apex Court in case of K.H. Siraj v. High Court of Kerala 2007(1) SLJ 164 (SC) : 2006 SCC (L&S) 1345. It is also contended that the respondents have correctly conducted the written test because viva voce test has been eliminated by the Railway Board. Therefore, selection process in force is, through written test only. Learned Counsel further contended that the case of Coordinate Bench of Allahabad High Court and Coordinate Bench of Calcutta are not applicable to the facts of the present case. He has further placed reliance on a decision of Jabalpur Bench of this Tribunal in Ramprakash and Ors. v. Union of lndia in O.A. 211/ 04 decided on 20th August, 2004.
9. Mr. Ajay K. Panicker appearing on behalf of intervenors No. 1, 2 and 3 adopted the arguments advanced by learned Counsel for the official respondents and private respondents. He has also filed written submission. Learned Counsel further contended that the duties of Goods Guard and Passenger Guard are not similar for which he has placed reliance on Para 1011 of the Operating Manual. He has also contended that the Railway Board by circular dated 07.8.2003 changed the process of selection and specified the positive-act consisting of only written test to assess the professional ability of the candidates. The said circular has not been challenged by the applicants.
10. We have considered rival contentions raised, arguments advanced and the case law cited by learned Counsel for the parties.
11. On the basis of pleadings and oral submissions of the rival parties the following issue emerges:
(i) whether the post of Passenger Guard is selection post as notified by letter dated 27.6.2005 and the method of selection was rightly adopted by official respondents.
(ii) whether the appointment of Senior Goods Guard in scale of Rs. 5000-8000 to the post of Passenger Guard in scale of Rs. 5000-8000 can be said to be promotion.
(iii) Whether applicants who participated in the selection process without raising any objection and after being declared unsuccessful they have no right to challenge the selection.
(iv) Whether the O.A. is not maintainable for non-joinder of all necessary parties.
12. Issue Nos. 1 and 2 are interrelated, hence these issues can be taken up together. It is the case of the applicants that they have been illegally subjected to selection for the post of Passenger Guards in scale of Rs. 5000-8000. Applicants are working on the post of Senior Goods Guard, which also carries the pay scale of Rs. 5000-8000. Movement of Senior Goods Guards to the Passenger Guards cannot be termed as promotion, but is required to be treated as lateral induction, since both the posts carry same scale of pay. Therefore, the respondents cannot subject Senior Goods Guards for written test for their lateral induction to the post of Passenger Guards. The official respondents submitted that as per correction slip No. 150 to Para 215 of IREM substituted by Railway Board Circular No. 132/03 dated 07.8.2003 the selection post will be filled by positive act of selection made by Selection Board from among the staff eligible for selection. Positive act of selection consist of only written test to assess the professional ability of the candidates. This procedure is applicable to the selection notified on or after the date of issue of letter dated 07.8.2003. The respondents have also filed G.M. letter dated 12th June, 1995 (Annexure A-1). Annexure to this letter is classification of posts in traffic branch of Western Railway it indicates that post of Passenger Guard is a selection post. There is another document of AVC traffic department filed by private respondents 3 and 4 as Annexure R-2 to the sur-rejoinder. It also indicates that Passenger Guard is a selection post. Allahabad Bench of this Tribunal in case of Gulam Mustafa v. Union of India in O.A. 829/01 and 859/01 decided on 01.01.2003 it has been held that the post of Passenger Guard is a selection post. The Calcutta Bench of this Tribunal in case of Prabir Kumar Chattopadhya and Ors. v. Union of India and Ors. in O.A. 274/03 decided on 27.5.2005 it has been observed that the post of Passenger Guard is classified as selection post. Thus, there is no dispute that the post of Passenger Guard on grade Rs. 5000-8000 is a selection post.
13. Learned Counsel for the applicant vehemently urged that the movement of Senior Goods Guard to Passenger Guard is a lateral induction and placed reliance on the decision of Allahabad Bench of this Tribunal in case of Gulam Mustafa and Ors. v. Union of India O.A. Nos. 829/2001 and 859/2001 decided on 01.01.2003 upheld by Allahabad High Court vide order dated 09.4.2003. The Tribunal observed:
Railway Board circular dated 27.1.1973 read with circular dated 14.7.1993 provides that Senior Goods Guards shall be considered by lateral induction as Passenger Guards in the same grade-Hence induction of Senior Goods Guards as Passenger Guards, both in the same pay scale, is not vertical movement-It is a lateral movement meaning thereby posting from one post to another in the same pay scale which does not have any element of promotion-Held on facts of the case selection vitiated in law and hence liable to be set aside.
He also relied upon decision of Calcutta Bench of this Tribunal in case of Prabir Kumar Chattopadhyay in O.A. 74/04 decided on 27.5.2005 and further relied on the decision of Allahabad Bench of this Tribunal in case of Mithilesh Kumar and Ors. v. Union of India and Ors. in O.A. No. 1268/04 decided on 01.02.2006. The circular dated 27.01.1993 and 14.7.1993 relied upon by the Allahabad Bench in deriving the term "lateral induction" Tribunal observed:
It would therefore imply that movement of Senior Goods Guards whose pay scale is Rs. 5000-8000 when posted as Passenger Guard will be only lateral induction and not exactly a promotion. In fact in one of the earlier orders, this proposition has been held by so this Tribunal and the same has been upheld by Hon'ble High Court when the matter was carried by the Railways in writ petition. The Railway Board's circular dated 27.01.1993 read with 14.7.1993 provides that Senior Goods Guard shall be considered by lateral induction as Passenger Guard in the same grade.
The Calcutta Bench of this Tribunal in case of Prabir Kumar Chattopadhyay observed:
We therefore find the present application is well covered by judgment of coordinate Bench of Tribunal at Allahabad even though some of the specific circulars and instructions of the Railway Authorities which have been quoted and rolled upon by Coordinate bench do not seem to have been produced before us by either side.
14. It would be relevant to discuss some of the circular of Railway Board Circular (RBE No. 19/03) dated 27.01.1993 was issued for the purpose of restructuring of certain Groups-C and D cadre. The relevant part of the said circular is quoted below:
4. Existing classification and filling up of the vacancies:
The existing classification of the post covered by these restructuring orders as selection and non-selection as the case may be remain unchanged. However, for the purpose of implementations of these orders, if an individual Railway servant become due for promotion to a post classified as a selection post, the existing selection procedure will stand modified in such a case to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written and or viva voce test. Similarly for posts classified as non-selection at the time of these restructuring the same procedure as above will be followed. Naturally under this procedure the categorization as 'outstanding' will not figure in panels. These modified selection procedure has been decided upon by the Ministry of Railways as a one-time exception by special dispensation, in view of the numbers. involved, with the objective of expediting the implementation of these orders.
15. The Railway Board letter dated 14.7.1993 (RB No. 106/93) issued for the purpose of restructuring of Group-C staff in Traffic Transportation and Transportation (Power) Department for rationalisation of designation and mode of filling up of upgraded post regarding. In Para 1 of the circular it is stated that the purpose of said circular is to decide the question of prescribing standard designation for the upgraded post as well as regulating procedure for filling up of vacancies thereunder and lateral induction of staff so upgraded in their normal promotional grade. Paras 3 and 4 of the such circular are quoted below:
3. It was further been decided that promotion of staff in the lower grade to these newly upgraded posts in the Traffic Transportation and Transportation (Power), Departments designated as "Senior" will be on the basis of seniority-cum-suitability. For example, promotion of Goods Guard and Shunters in the scale Rs. 1,200-2040 as Sr. Goods Guard and Sr. Shunter respectively in the scale Rs. 1350-2200 will be on the basis of seniority-cum-suitability. Benefit of fixation under Rule 1313 (FR 22)(i)(a)(l) -R- II will be admissible for such promotion.
4. Further indication of the upgraded staff in their normal promotional grades in the identical scale of pay will be as per the existing classification of posts. For example lateral induction of Sr. Goods Drivers, scale Rs. 1600-2660 and Sr. Goods Guard scale Rs. 1350-2200 as Passenger Driver and Passenger Guard respectively in the identical grades will be by existing process of selection. In these case however pay will be fixed in terms of Rule 1313 FR 22(i)(a)( 1) -R-II and the benefit of fixation under Rule 1313 FR 22(i)(a) (1) will not be admissible.
16. Learned Counsel for the applicant also contended that there is obviously no written test provided for promotion from Goods Guard to Passenger Guard and only viva voce test used to be conducted. Learned Counsel for the official respondents submitted that the Railway Board while terming the said "lateral induction" has already decided and laid down the rule that induction of the upgraded staff in their normal promotional grade in the identical scale of pay will be as per existing classification of the post and that even lateral induction of Senior Goods Guard as Passenger Guard in the identical grade will be existing process of selection. In this case, vacancies have been notified for the first time on 16.5.2005 i.e. after 02.3.1993 the normal selection procedure applicable to the post as on 16.5.2005 shall apply. Learned Counsel further submitted that the applicants have challenged the method of selection. The viva voce test was also a method of selection which was obviously being followed. The Railway Board vide letter dated 07.8.2003 changed the process of selection and specified that positive act of selection shall consist of only written test of assess the professional ability of the candidates. Learned Counsel has drawn our attention to Para 3.1 (i) and Para 4 of the said circular, which reads as under:
3.1 As a corollary to elimination of viva voce in the departmental selections, the following decisions have also been taken:
(i) Written test will invariably form part of all selections held for promotion to posts classified as 'selection' including the posts for which presently only viva-voce forms part of the selection.
(ii) ...
4. It has also been decided that the procedure as revised above will be applicable to selection notified on or after the date of issue of this letter.
The advance correction slip relating to the Railway Board letter dated 07.8.2003 provides:
For the existing Sub-para (1) substitute the following:
Selection post shall be filled by a positive act of selection made by Selection Boards, from amongst the staff eligible for selection. The positive act of selection shall consist of only written test to assess the professional ability of candidates, for which reasonable advance notice should be sent.
Learned Counsel further drawn our attention to the Railway Board letter dated 09.10.2003 issued on the subject restructuring of certain Groups-C and D cadre. The relevant Para 3 is quoted below:
Staff selected and posted against the additional higher grade posts as a result of restructuring will have their pay fixed under Rule 1313 (FR-22)(i)(a) (l) R-II on proforma basis with effect from the cut-off date with the usual option for pay fixation as per extant rules. Actual payment based on the pay so fixed should be made from the date of taking over the charge of the higher grade posts, arising out of these restructuring orders. The benefit under this rule will however, no longer be available in the case of movement from lower grade to higher grade in the nonfunctional situations where there is no change in duties as in the case of movement from Goods Guard to Sr. Goods Guard and Goods Driver to Sr. Goods Driver etc. In the case of such movement the pay will be fixed under Rule 1313 (FR 22)(i)(a)(2) R-II. However, the benefit of fixation of pay under Rule 1313 (FR-22) (i)(a)( 1) R-II will now be admissible in the cases of functional promotions from Sr. Goods Guard and Passenger Goods Driver and Sr. Goods Drivers to Passenger Drivers etc. though in identical scale of pay.
We notice that in terms of Railway Board letter dated 09.10.2003 Groups-C and D staff have restructured from 01.11.2003 and the percentage of post of Passenger Guard and Goods Guard stood revised as per Annexure-A (ii) as under:
--------------------------------------------------------------------
Category Grade Existing Revised
Rs. percentage percentage
--------------------------------------------------------------------Passenger Guard 5500-9000 20 27 5000-8000 80 73 Goods Guards 5000-8000 20 27 4500-7000 80 73
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A perusal of Para 3 of the Railway Board letter dated 09.10.2003 indicates that the benefit under this rule will not be available in case of movement from lower grade to higher grade in non-functional situation, where there is no change in duties and responsibilities as in case of movement from Goods Guard to Senior Goods Guard and Goods Driver to Senior Goods Driver etc. In case of such movement pay will be fixed under Rule 1313 (FR 22(i)(a)(2)-R-II. However, benefit of fixation of pay under Rule 1313 FR 22(i)(a)(l )-R-II will now be admissible in case of functional promotion such as promotion from Senior Goods Guard to Passenger Guard and Senior Goods Driver to Passenger Driver etc., though in the identical pay scale. Thus, it appears that as per instructions contained in the Railway Board letter dated 09.10.2003 the post of Senior Goods Guard is non-functional post with no change of duties. Passenger Guard is a functional post since change of duty is involved and benefit of fixation of pay admissible as in case of promotion is also given. In view of Railway Board letter dated 09.10,2003 whereby the fixation of pay under Rule 1313 (FR 22(i)(a)(l)-R-II is allowed in the matter of appointment to the post of Passenger Guard and higher responsibility is recognized in the movement from the post of Goods Guard to Passenger Guard. The private respondents 3 and 4 have also filed table showing the difference in duties of Goods Guard and Passenger Guard (Exhibit Rl on page 68 of the O.A.). The intervenors have also filed Para 1011 of the operating manual of Western Railway (Exhibit R-3) to show that nine duties in addition to 20 duties are prescribed for Guards working on Passenger Trains. They have also filed the information received under Right to Information Act (Exhibit R-5) regarding duties of Goods Guard and Passenger Guard as provided by the Railway Administration to show that there is difference between duties, responsibilities, working condition and monitoring on the working of Passenger Guard. It is the function and prerogative of the Government, Railway Board in this case, to lay down policy for holding of written test as part of selection procedure to assess the professional ability of the staff concerned having regard to the nature of duty and responsibility to be discharged by the staff on the promotional post. Since the responsibilities of the Passenger Guard is higher than the Senior Goods Guard and the matter of written test, as a part of selection process, has been prescribed under the Rules. In view of the matter, there is no difference between Goods Guard and Senior Goods Guard so far as the duties and responsibilities are concerned, both are doing the same job. But in case of Senior Goods Guard and Passenger Guard as their responsibilities are not same, though the pay scale is identical, they are a class apart. Merely because all the Senior Goods Guards are placed in the higher scale, it does not place them on a higher pedestal as far as responsibilities are concerned, basically they remain Goods Guard. Thus it is established on record that the post of Passenger Guard carries responsibilities of greater importance than that of Senior Goods Guard. Therefore, movement from Senior Goods Guard to Passenger Guard is a promotional movement even though the scale is identical. It would be discriminatory to give Senior Goods Guard extra advantage in the form of relaxation or difference method of selection for the post of Passenger Guard.
17. Learned Counsel for the applicant argued that as per judgment of Hon'ble Supreme Court in case of Tarsem Singh v. State of Punjab means advancement in rank, grade or both as observed by Apex Court in Para 9, it reads as under:
Promotion as understood under the Service Law Jurisprudence means advancement in rank grade or both. Promotion is always a step towards the advancement to a higher position, grade or honour.
The said position of law has been laid down in the context of departmental rules, whereas in the present case, the rule position is altogether different. Moreover, Hon'ble Supreme Court nowhere held that selection cannot be held for appointment On the contrary Hon'ble Supreme Court in the said judgment has interalia held that:
We are therefore, of the view that only those ministerial employees are eligible for promotion under Rule 8(l)(a)(i) who are in the pay scale or the post of the Labour Inspector.
Learned Counsel for the private respondents relied upon Para 211 of IREM it defines as under:
Promotion includes promotion from a lower grade to a higher grade, from one class to another class or from one group to another group.
He has also placed reliance in case of State of Rajasthan. Fateh Chand Soni, (1996) 1 SCC 562 wherein it has been held:
In the literal sense the word 'promote' means "to advance to a higher position, grade, or honour". So also 'promotion' means "advancement or preferment in honour, dignity, rank, or grade." 'Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression 'promotion' has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post.
Thus in the backdrop of rule position discussed in foregoing paragraph, also in the light of decision of Apex Court in Fateh Chand Soni's case (supra) the movement of Senior Goods Guard to Passenger Guard is a promotional movement from one class to another class.
18. Learned Counsel for the applicant further argued the advance correction slip No. 150 relating to the order dated 07.8.2003 stipulates written examination for selection. The said correction slip also stipulates "the staff in the immediate lower grade with minimum two years service in that grade only will be eligible for promotion." It shows that the written examination is meant in case of promotional post from lower grade to higher grade. The advance correction slip No. 150 firstly stipulates that selection post shall be filled by positive act of selection mode by Selection Board from among the staff eligible for selection and positive act of selection shall consist of only written test to assess the professional ability of the candidates. It further stipulates the eligibility to appear in the written examination from lower grade to higher grade for all categories of Group-C in general. Learned Counsel for respondent argued that as per Railway Board letter dated 22.3.2005 issued as clarification sought by Northern Railway combined service in the basic grade and senior grade in the category of Driver and Guard can be taken into account for reckoning two years residency period for promotion to the next functional grade which also means that a person with less than two years can be promoted to senior grade. As per this instruction for promotion from Goods Guard to Senior Goods Guard there is no need of minimum two years of residency period for promotion to non-functional post. The promotion to the functional post i.e. Passenger Guard Grade 5000-8000 two years combined service of Senior Goods Guard Grade 5000-8000 and Goods Guard grade 4500-7000 is essential. Thus, the rule shall be read with Railway Board letter dated 09.10.2003 and 22.3.2005. As we have stated earlier that movement from Senior Goods Guard to Passenger Guard is a promotional movement though in the identical scale of pay. Therefore, we find no force in the contention advanced by learned Counsel for the applicants that written test is not applicable in the case of present applicants.
19. In case of B.S. Vadera v. Union of India Hon'ble Apex Court held that:
The Railway Establishment Code has been issued by the President in exercise of his powers under proviso to Article 309. Under Rule 157 the President has directed the Railway Board to make rules of general application to non-gazetted Railway servant under their control. The rules, which are embodied in the Schemes, framed by the Board, are within the powers, conferred under Rule 157, and, in the absence of any act, having been passed by the 'appropriate' Legislature, on the said matter, the rules, framed by the Railway Board, will have full effect and, if so indicated, retrospectively also. Such indication, about retrospective effect, is clearly there, in the provisions.
In the light of decision of Apex Court Railway Board letter dated 07.8.2003 read with Railway Board letter dated 09.10.2003 has force of law. A perusal of this rules makes it amply dear that the movement from Senior Goods Guard to Passenger Guard is a promotional movement even though the scale is identical. The procedure followed for promotion to Passenger Guard before issuing of these letters was viva voce test, it has been eliminated by Railway Board letter dated 07,8.2003 and it provides that written test will invariably form part of all selections, held for promotion to posts classified as 'selection' including the posts for which presently only viva-voce forms part of the selection. Para 4 further provides that procedure as revised will be applicable to the selection notified on or after the date of issue of this letter. Para 213 of IREM authorises GM or Head of office or DRM to prescribe passing of departmental test for Railway servant being considered fit to hold specified post. The relevant para of Para 213 reads as under:
213. Promotion A Railway servant may be promoted to fill any post whether a selection post or a non-selection post only if he is considered fit to perform the duties attached to the post. The General Manager or the Head of Department or Divisional Railway Manager may prescribe the passing of the specified departmental or other tests as conditions precedent to a Railway servant being considered fit to hold specified post; such rules should be published for the information of the staff concerned.
The applicants have not challenged the Railway Board letter dated 07.8.2003,09.10.2003 and Rule 215 of IREM. Without challenging the rule, its effect cannot be challenged as held by Hon'ble Apex Court in case of Chairman and Managing Director, Indian Airlines v. Binod Kumar Sinha and Ors. 2002(1) SLJ 316. In the light of rule position, we find that the term lateral induction, which is not a vertical movement, is also covered in the definition of promotion. Even the lateral induction from one class to another class or from one group to another group, may be subjected to selection if the classification of the post so requires. It is established on the basis of evidence on record that the post of Passenger Guard is a selection post and rule requires the holding of written test for the post of Passenger Guard. As we have stated earlier that the movement from Senior Goods Guard to Passenger Guard is a promotional movement even though the pay scale is identical. Thus, we find that the official respondents have conducted the entire process of selection in accordance with rule and Railway Board letters issued on the subject. The authorities are competent to do so. It is well founded administrative action. We do not find any ground to interfere in view of the decision of Hon'ble Apex Court in case of Indian Airlines Corporation v. Capt. K.C. Shukla 1993(2) SLJ 2 (SC) : 1992 SCSLJ 326, wherein it was observed:
Promotion - Selection - Whether a post should be filled by promotion or by selection is a matter which is governed by Promotion and Recruitment Rules -Where Rules are not violative either of the regulations or the Act or arbitrary the Courts will have little jurisdiction to interfere with it.
20. So far as the reliance of the learned Counsel for applicants on the decision of Allahabad Bench of this Tribunal in Gulam Mustafa case decided on 01.01.2003 upheld by Allahabad High Court by order dated 09.4.2003 in Civil Miscellaneous Writ Petition No. 15196/03 is concerned, the Tribunal held (a) the post of Passenger Guard is a selection post (b) Induction of Senior Goods Guard both in the same pay scale is not vertical movement, but a lateral induction. In this case, the panel of 05.7.2001 was challenged by the applicants. At the relevant time Railway Board letter dated 14.7.1993 was applicable which provided that lateral induction of Senior Goods Guard as Passenger in the identical grade will be by existing process of selection. The existing process of selection was viva voce at that relevant time, which has been eliminated by Railway Board letter dated 07.8.2003 and advance correction slip No. 150 relating to the said order has been issued which specifically provides that the selection post shall be filled by positive act of selection, which shall consist of only written test to assess the professional ability of the candidates. Thus, the ratio of the case cited by learned Counsel for the applicants is based on the earlier rule position, which cannot be applied to the facts of the present case. The next decision relied upon by learned Counsel for the applicant is the decision of Calcutta Bench of this Tribunal in Prabir Kumar Chattopadhyay v. Union of India in O.A. 274/03 decided on 25.7.2005 is based on the decision of Allahabad Bench of this Tribunal in Gulam Mustafa case (supra). Hon'ble Calcutta Bench observed in Para 10 as follows:
We, therefore, find that the present application is well covered by the judgment of the Coordinate Bench of the Tribunal at Allahabad. Even though some of the specific circulars and instructions of the Railway Authorities which have been quoted and relied upon by the Coordinate Bench do not seem to have been produced before us by either side and it is also not known whether this decision of the Coordinate Bench had been appealed against or had become final as the controversy raised in the present case is similar to that which was decided by the Coordinate Bench, we are therefore bound by the decision of the Coordinate Bench and find no reason as to why the principles followed therein would not be applicable to the facts and circumstances of the present case. Therefore, the application is allowed. The provisions panel of selection for the post of Passenger Guard Rs. 5000-8000 (RSRP) declared by order dated 6.3.03 is hereby quashed. The respondents are directed to reconsider the matter of appointment on the post of Passenger Guard in the present case in accordance with the steps taken by them in compliance of the order of the Coordinate Bench of this Tribunal at Allahabad.
The rule position as existed at the relevant time has not been placed before the Calcutta Bench of this Tribunal, In the matter before Calcutta Bench panel dated 06.3.2003 was challenged. However, rule position has been changed by Railway Board letter dated 07.8.2003. Thus the decision is also not applicable to the facts of the present case. The next case relied upon by learned Counsel for the applicants is, another decision of Allahabad Bench of this Tribunal in Mithilelsh Kumar and Ors. v. Union of India and Ors. in O.A. 1268/04 decided on 01.02.2006. A perusal of the judgment it appears that the latest rule position and Railway Board letter dated 09.10.2003 was not produced before the Bench. This has direct impact on the controversy involved in that case. Therefore, factual and legal position as stood today were not produced before Allahabad Bench and Calcutta Bench of this Tribunal. In view of the changed position of rule, as existed today, which came into force with effect from 07.8.2003, much before the Notification dated 27.6.2005 and the panel dated 09.3.2006, the ratio of these case will not be applicable to the facts of the present case and hence the decision of Coordinate Benches cited by learned Counsel for the applicants will not be helpful to them. In case of State Financial Corporation v. Jagdamba Oil Mills Hon'ble Apex Court held that:
Courts should not place reliance on decisions without discussing as to how the factual situation fits in which the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrase and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
21. Learned Counsel for the respondents relied upon the decision of Jabalpur Bench of this Tribunal and argued that Jabalpur Bench has independently evaluated the facts and decided the O.A. on merit. The decision of Allahabad Bench was cited before Jabalpur Bench of the Tribunal, it observed in Para 5 as under:
5. We have heard the learned Counsel for both the parties and perused the records. Admittedly the applicants appeared in the written examination for the post of Passenger Guards. But as they have been failed in the said examination so they could not be called for viva-voce.
In this case it appears that the applicants made representation on 28.10.2003. However, the Tribunal after considering the facts of the case dismissed the O.A.
22. The next question arises for our consideration is whether the applicants who participated in the selection process without raising any objection and having declared unsuccessful, they have no right to challenge the selection. Learned Counsel for respondents argued that the applicants, in response to the Notification dated 27.6.2005 offered their willingness and they appeared in the written test for selection to the post of Passenger Guard. After having declared failed, they have no right to challenge the selection. Learned Counsel for the private respondents relied on the decision in the case of Madanlal (supra). In Para 9 of the judgment the Court observed:
It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round that subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
23. Learned Counsel for the applicants argued that the applicants had no choice except to participate in the process of selection and to appear in the written test, now they are challenging the holding of test itself. It is not statutory requirement to make representation, hence the question of estople does not arise. Learned Counsel placed reliance in Mohan Lal Agarwal and Ors. v. Bhubaneswari Prasad Mishra and Ors. wherein it was held:
The promotion policy here had been opposed. Further the conditions of promotion policy here were such that the respondent had not choice except to participate in the selection process. Nor did he have the time to approach the High Court before participating in the selection process.
In this case the promotion policy was challenged by the persons not promoted. But in the present case the process of selection has been challenged after participating in the written test by the applicants. The written test was conducted in accordance with rule. Therefore, the ratio of Mohan Lal Agarwal and Ors. v. Bhubaneswari Prasad Mishra and Ors. is not applicable to the facts of the present case.
24. Learned Counsel has also placed reliance in case of Raj Kumar and Ors. v. Shakti Raj and Ors. 1997 SCC (L&S) 1029. The Apex Court held that the entire procedure is also obviously illegal. Therefore, principle of estopple by conduct or acquiscence has no application to the facts in this case. In the present case, it is noticed that the applicants themselves have given willingness to appear in the selection and they have participated in written test. A perusal of the impugned letter dated 27.6.2005 clearly stated that "Those employees who are unwilling to appear for the said test should submit their written refusal to this office within 15 days on receipt of this letter." The applicants never raised objection at that time. However, it is noticed that after declaration of the result on 06.02.2006, the first representation was addressed on 17.02.2006 (Annexure A-5) and another representation on the same day was sent to Secretary, Railway Board alleging malpractice in the selection. Whereas, the applicants had ample opportunity to agitate against the said notification prescribing the written examination. The applicants did not resist but appeared in the examination and made representation after they were declared unsuccessful. The ratio of Rajkumar case (supra) by the larger Bench in which the judgment of Apex Court in Madanlal v. State of Jammu & Kashmir (supra) was considered and it was held that principles of estople by conduct or acquiscence has no applicable in this case. The peculiarity of the case has been highlighted in Para 16 of the judgment that the Government has not taken out the post from the purview of the Board but after examinations were conducted under 1965 Rules and after the results were announced, it exercised the power under proviso to Para 6 of 1970 Notification and the posts were taken out from the purview thereof. Therefore, the Selection Committee was constituted for selection of candidates. The Court held that the entire procedure is also obviously illegal. In the present case, the applicants willingly appeared in the written test but failed and after that they have raised grievance. The written test was conducted as per Para 215 IREM which was amended by Correction Slip No. 150 by Railway Board letter dated 07.8.2003. Thus the procedure was perfectly legal and according to rules. In another judgment of Hon'ble Apex Court in University of Cochin v. N.S. Kanjoonjamma and Ors. decided on 20.3.1997 in which Hon'ble Judges of Division Bench were part of the Larger Bench that decided the case of Rajkumar and Ors. v. Shaktiraj and Ors. In N.S. Kanjoonjamma case Their Lordship of Apex Court held:
Rules providing for reservation of posts for SC/ST adopted by University - vacant post of Asst. Registrar and Deputy Registrar advertised for recruitment of SC/ST - Selection Committee formed by Vice Chancellor - Both selected candidates and petitioner, an unselected candidate, participating in selection process- Petitioner having participated in selection is estopped from challenging the process -Omission in advertisement to state that it was special recruitment - on material -Recruitment in question being special recruitment - R. 4 has no application.
Thus, it appears that each case will be decided on its own facts. The facts of the present case are distinguishable and therefore, the ratio of Rajkumar is not helpful to the applicants. The applicants in this case have appeared in the written test. They have taken a chance to appear in the written test are now estopped from challenging the notification and the result of the written test on the plea that the written test should not have been conducted.
25. The next point arises for our consideration is that whether the O.A. is not maintainable for non-joinder of necessary parties. Learned Counsel for official respondents as well as private respondents argued that the applicants have not impleaded 22 employees who have been empaneled and whose posting as Passenger Guard is stayed as a result of interim order passed by this Tribunal. Learned Counsel for the applicants submitted that respondents 3 and 4 have been made parties in representative capacity and it is not necessary to implead all the selected candidates, since the interests of the selected candidates are protected by respondents 3 and 4. Learned Counsel has placed reliance in case of All India SC/ST Employees Association v. A. Arthur Jeens and Ors. . The Apex Court held while challenging the panel of selected candidates at least some of the selected candidates must be impleaded as respondents. It is not disputed that there are as many as 24 candidates on the panel declared on 09.3.2006, out of them two empaneled candidates have been impleaded as private respondents and three have joined as intervenors. The applicants have challenged the appointment of all 24 candidates. Therefore, in such proceedings, the necessary parties to be impleaded are those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. In the present case the relief is claimed against all the candidates. It has been held by Apex Court in case of Khetrabasi Biswal v. Ajay Kumar Baral and Ors. 2004(1) SLJ 511 (SC) : 2004 SCC (L&S) 182. Para 6 it has been held:
The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.
Thus all selected candidates are necessary parties in this case against whom the applicants are seeking relief. They are required to be impleaded as respondents. In the absence of impleadment of necessary parties the order will have no binding effect as held by Apex Court in Khetra Biswal case (supra). So far as the reliance of the applicants in case of All India SC/ST Association case (supra) is concerned we notice that Hon'ble Apex Court held that at least some of the successful candidates must be impleaded as respondents. The Apex Court nowhere held that all the necessary parties should not be impleaded. Thus O.A. suffers from vice of non-joinder of necessary parties.
26. For the reasons stated above, the applicants have failed to establish any vested, legal right justifying the grant of relief claimed by them on any valid, legal and tenable ground. O.A. lacks merit, it is accordingly dismissed without any order as to costs. Interim order dated 30.3.2006 is also vacated.