Central Administrative Tribunal - Ernakulam
M Mohan vs General Manager Southern Railway ... on 26 September, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00787/2018
&
Original Application No.180/00006/2020
Tuesday, this the 26th day of September 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Original Application No.180/00787/2018
M.Mohan,
Aged 44 years,
S/o.S.Munusamy,
Helper/AC Electrical Department,
Office of SSE/E/TL/AC, Nagercoil Junction,
Southern Railway, Trivandrum Division.
Permanent Residence at No.404,
10th Street, Sharma Nagar,
Vyaparpadi, Chennai - 600 039. ...Applicant
(By Advocate Mrs.Shameena Salahudheen)
versus
1. Union of India represented by the General Manager,
Southern Railway, Park Town, Chennai - 600 003.
2. The Chief Personnel Officer,
Southern Railway, Chennai - 600 003.
3. The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
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4. The Divisional Electrical Engineer,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
5. Mithilesh Lal,
Helper, Electrical Department, Ernakulam.
Southern Railway, Trivandrum Division,
Trivandrum - 14.
6. S.Sahayaraj,
Helper, Electrical Department, Ernakulam,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
7. N.Suresh Prathap Singh,
Helper, Electrical Department, Nagarkovil,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
8. M.L.Loganathan,
Helper, Electrical Department, Nagarkovil,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
9. Sunilligith.K.,
Helper, Electrical Department, Trivandrum,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
10. Marthi Dasu Babu,
Helper, Electrical Department, Ernakulam,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
11. T.Sunder,
Helper, Electrical Department, Nagarkovil,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
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12. Ashok Kumar,
Helper, Electrical Department, Trivandrum,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
13. T.Anand,
Helper, Electrical Department, Nagarkovil,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
14. S.Gopakumar,
Helper, Electrical Department, Kochuveli,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
15. Sijin.T.,
Helper, Electrical Department, Kochuveli,
Southern Railway, Trivandrum Division,
Trivandrum - 14.
16. R.Lakshmanan,
Helper, Electrical Department, Nagercoil,
Southern Railway, Trivandrum Division,
Trivandrum - 14. ...Respondents
(By Advocates Mr.M.K.Padmanabhan Nair [R1-4],
Mr.Martin.G.Thottan [R6, 8, 9, 11, 13 & 15]
& Mr.T.C.Govindaswamy [R16])
Original Application No.180/00006/2020
Binu.B.,
Aged 30 years,
S/o.Balan,
Helper/AC, Electrical Department,
Office of SSE/AC, Trivandrum,
Southern Railway, Trivandrum Division.
Having permanent residence at Thirunellil,
Vettuveni, Haripad P.O., Alappuzha Dist. - 690 514. ...Applicant
(By Advocate Mrs.Shameena Salahudheen)
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versus
1. Union of India represented by the General Manager,
Southern Railway, Park Town, Chennai - 600 003.
2. The Chief Personnel Officer,
Southern Railway, Chennai - 600 003.
3. The Senior Divisional Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. ...Respondents
(By Advocate Mr.S.Ramesh)
These applications having been heard on 14 th August 2023, the
Tribunal on 26th September 2023 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER These two cases are being taken together for disposal by way of a common order, as the matters agitated in them basically arise from the same issue. The applicant in O.A.No.180/787/2018 had filed the same aggrieved by the selection conducted and the Select List published by the Southern Railway, Divisional Office, Trivandrum vide Annexure A-1 dated 06.08.2018, for selection to the post of Technician Grade-III(AC) in the said Divisional Office under the 4 th respondent, the Divisional Electrical Engineer, Trivandrum Division. The Select List Panel at Annexure A-1 Memorandum indicates names of 12 Helpers, who had been selected for the post of Technician Grade-III(AC). The post is in -5- Pay Band I (PB I) - Rs.5200-20200 plus Grade Pay (GP) Rs.1900/- (Pay Matrix Level 2). The selection was made against the 25% Limited Departmental Competitive Examination (LDCE) quota reserved for serving employees after being recommended by the Selection Committee. The applicant in O.A.No.180/787/2018 was aggrieved by the fact that his name had not appeared in the said Select List (panel). He has arrayed the names at Sl.No.1 to 12 of Annexure A-1 as Respondent Nos.5 to 16 in the O.A. Among the names of the Helpers in the Select List, he was specifically aggrieved by the inclusion of 16 th respondent in the said panel, as the last name (at Sl.No.12) in Annexure A-1. He had filed this O.A seeking the following reliefs :
1. To call for the records leading to Annexure A-1 and set aside the same to the extent of including the 16 th respondent.
2. Declare that the applicant is entitled to be included in the Select List for the post of Technician Grade-III(AC) Electrical Department.
3. Direct the respondents to prepare the Select List strictly in accordance with the Railway Board instructions and notifications.
4. Declare that the 16th respondent is not entitled to be included in the Select List for the post of Technician Grade-III(AC) Electrical Department.-6-
5. Such other relief as may be prayed for and this Tribunal may deem fit to grant.
6. Grant the cost of this Original Application.
2. The applicant in O.A.No.180/787/2018 had joined the Railway service in the Trivandrum Division as a Substitute Helper on the 'Train Lighting' side on 09.11.2006. He submits that he had entered the grade of Helper-II (AC) on 30.07.2010. At the time of filing the O.A he was working in the office of the SSE/E/TL/AC at Nagercoil Junction, Southern Railway. It is submitted by him that the 3 rd respondent, being the Senior Divisional Personnel Officer (SDPO), Southern Railway, Trivandrum, had issued a notification proposing to conduct a selection to fill up the 12 vacancies of Technician-III(AC) under the aforementioned 25% LDCE quota in PB I, reserved for serving employees. As per this notification dated 29.06.2016, produced at Annexure A-3, the number of vacancies in the category of Technician Grade III/AC were 12 in the 25% LDCE Quota consisting of 9 Unreserved (UR), 2 Scheduled Caste (SC) and 1 Scheduled Tribe (ST). It had also been indicated in the notification that the volunteers who would appear against the 25% LDCE quota reserved for serving employees in pursuance of the said notification, should have passed Matriculation or its equivalent or 10 th Standard pass -7- under 10+12 Stream. Further, they should have completed minimum 3 years continuous regular service in Railways as on the date of notification. However, SC/ST employees possessing requisite qualifications would be eligible for being considered against vacancies reserved for them as per extant instruction if they had completed a minimum of one year regular service. Further, it was also indicated that the selection would consist of a written test only. In addition, it was indicated that the empanelled staff possessing the qualification of ITI/Course Completed Act Apprenticeship in the relevant trade in the Railway Establishment may be subject to trade test and those passing the same may be promoted as Technician Grade-III/AC. It was also indicated that such of the empanelled staff who do not possess the qualification of ITI/Course Completed Act Apprenticeship in the relevant trade in the Railway Establishment may be imparted suitable training for one year.
3. It is submitted by the applicant in O.A.No.180/787/2018 that he had expressed his willingness to be considered for the selection. He had attended the written test in pursuance of the same. After the test was completed the respondents published the Annexure A-1 Select List on 06.08.2018, which consisted of the names of 12 candidates who had been -8- selected. Soon after this, on 14.08.2018 they also published the Annexure A-4 results of the written examination consisting of the names of 49 employees who had attended the written examination with the marks obtained by them out of 100. It is to be noted from the said result list at Annexure A-4 that the applicant (at Sl.No.20) had secured 63 marks out of 100. This was exactly the same marks secured by Shri.R.Lakshmanan, the Respondent No.16, who had also appeared in the same examination and who was at Sl.No.18 in the said Annexure A-4 list. However, even though they had both secured the same marks, only Shri.R.Lakshmanan was indicated as the last name in the Select List at Annexure A-1. The applicant has objected to this, submitting that he had more meritorious service in his credit than Shri.R.Lakshmanan, the Respondent No.16. Further, Shri.R.Lakshmanan is far junior to the applicant but has been selected. In addition, the applicant has submitted that the Panel had not been drawn in accordance with the instructions contained in the notification as well as the extant orders binding them. It is to be noted that in relation to the last assertion he had not produced any supporting evidence in the O.A itself, but has only produced certain documents for consideration in his rejoinder and by way of M.As/Argument Notes filed by him later.
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4. The applicant's contention is that the panel had not been prepared properly and that his non inclusion was illegal, arbitrary etc. It is submitted that the applicant had entered into service in the year 2006. He had entered the grade of Helper II on 30.07.2010. Further he has had a record of unblemished service. On the other hand the 16 th respondent had entered the grade of Helper II only on 21.04.2012. He has also been awarded a penalty advice on 11.05.2017. A copy of the Penalty Advice in this regard has been produced at Annexure A-6. It is submitted by the applicant that it is not known how an employee who had been given a penalty advice has been given preference in selection, Thus, the inclusion of the 16th respondent in the Select List is illegal and arbitrary. Further, selections to the post of Skilled Artisan Grade III in Engineering Departments is governed by paragraph 159 of the Indian Railway Establishment Manual (IREM) wherein, it has been indicated that filling up of 25% of the vacancies in that grade is through LDCE and that the same is based on merit. It is the applicant's contention that since he and the 16th respondent had scored the same marks, the criteria to be applied for selection between them should have been seniority. It is submitted that the applicant is senior both in age and in service and, hence preference should have been given to him. However, the 16 th respondent -10- who could exert undue influence on the authorities has been selected by the 4th respondent. In this connection the applicant has also furnished a copy of the seniority list of the Electrical/AC Department, at Annexure A-7, to prove that he was senior to the 16 th respondent. His submission is that objective criteria for selection has been given a go-bye and that the panel had been drawn up according to the whims and fancies of the Selection Committee, without any transparency in the selection procedure. Thus, he has prayed for the relief as indicated earlier.
5. When the matter came up first before this Tribunal on 25.09.2018, it was adjourned for hearing on the interim relief sought. On 15.10.2018 this Tribunal passed an order granting interim relief to the extent of directing the respondents to keep one post of Technician Grade III/AC vacant pending final disposal of the O.A, though there had been a prayer to stay the entire Annexure A-1 Select List. The respondents have thus kept one post vacant and have already as per information provided later in the Argument Notes by the two sides promoted 11 out of the 12 persons appearing in the Select List. The 16 th respondent has been denied the benefit of promotion on account of the pendency of the O.A. -11-
6. A reply statement has been filed on behalf of the official respondents at Sl.Nos.1-4. It is submitted in the reply statement that after the Annexure A-3 notification for filling up of 12 vacancies of Technician Grade III/AC under 25% LDCE quota was issued a large number of volunteers had applied. As many as 49 employees from among them had appeared in the written examination held on 18.11.2017. However, only 14 employees had passed the examination. It has been indicated in the reply statement that the distribution of marks for selection was 85 marks for the written test and 15 marks for record of service, as per Railway Board's letter RBE No.166/2003 dated 23.09.2003, a copy of which has been produced at Annexure R-1. The letter at Annexure R-1 has indicated the procedure for filling up the posts of Skilled Artisan against the 25% promotion quota. The letter lays down that the selection will consist of a written test for 85 marks and viva-voce for 15 marks. However since then instructions for elimination of viva-voce in selections for promotion in Group 'C' posts has been issued. Thus, it has been decided that the procedure for filling up 25% quota for promotion as (Trade) Grade III would also be modified to the extent that 15 marks hitherto allotted to viva-voce would be allotted to record of service.
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7. It is submitted that the assessment of record of service is based on entries in the Service Book/Personal File of the employees regarding academic/technical qualifications, awards/punishments etc. Following from this it is submitted by the respondents that out of the total 15 marks for record of service, 5 marks have been allotted for the actual Service Record (SR), 5 marks for the Performance Report (PR) based on the ACR/APAR and 5 marks for Educational Qualifications (EQ). It has been further decided that under Service Record, each candidate would be given 3 base marks with 1 mark added for each award and 1 mark deducted for each penalty. Under the Performance Report 5 marks would be given for 'Outstanding', 4 marks for 'Very Good' and 3 marks for 'Good' and Average (average for the past three years would be taken). Finally, under Educational Qualifications, those who had SSLC qualifications would be given 3 marks, +2/ITI/Act Apprentices would be given 4 marks and those with Diploma/Degree would be given 5 marks.
8. Based on the above criteria the marks awarded to the applicant and the 16th respondent under different heads are detailed in the following table :
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M.Mohan (applicant) R.Lakshmanan (Proforma Respondent No.16) WT Record of Service Grand WT Record of Service Grand out of Total out of Total SR PR EQ Total SR PR EQ Total 85 85 53.55 3 4 4 11 64.55 53.55 2* 5 5 12 65.55 *1 mark deducted for 1 penalty It is submitted that the applicant (Shri.M.Mohan) had been awarded 4 marks for the Performance Report (as he had got 'Very Good' for the past three years), 4 marks for his Educational Qualifications (SSLC + ITI) and 3 base marks for Service Record. Thus for his Record of Service, he had secured 11 marks out of 15. As his written test marks out of 85 was 53.55, his total adding the 11 marks of Record of Service came to 64.55.
On the other hand, the 16th respondent (Shri.R.Lakshmanan) was awarded 5 marks for Performance Report, as he had 'Outstanding' for the past three years, 5 marks for his Educational Qualifications (B.Sc. Degree) and only 2 marks for his Service Record as 1 mark had been deducted from the 3 base marks for the one penalty entry in the Service Record. Hence, his marks for Record of Service came to 12 out of 15. Since he too had got 53.55 in the written test out of 85, when the 12 marks were added, his total came to 65.55. This was 1 mark more than the applicant in the O.A.No.180/787/2018 (Shri.M.Mohan) who got 64.55. Accordingly, the 16 th respondent had been included in the Select -14- List panel and not the applicant. This was because since only 12 vacancies were there, only 12 names were included in the Panel in order of merit. The applicant had come only in the 13 th position.
9. The respondents submit that it is only due to the fact that the 16 th respondent had got more marks that he had been selected and included in the Panel as per merit. They submit that seniority does not have any role in the selection under the 25% LDCE quota. The number of UR vacancies were 9 and the 16 th respondent had been adjusted against the 9th position in the UR category. The applicant, who also falls in the UR category came in the 10 th position. Thus, he could not get a place in the Panel as the UR vacancies were only 9. As such, the selection conducted was not illegal or arbitrary and was sustainable in the eye of law. It is submitted that the applicant had not produced any documentary evidence or relied on any rule to establish why he should be included in the Panel in preference to the 16th respondent. His claim that he is senior to the 16 th respondent had no relevance in the selection procedure, which was based only on written examination and the record of service. The respondents have also taken into account the penalty imposed on the 16 th respondent, vide Annexure A-6. It is to be noted that the 16 th respondent had been -15- given only 2 marks for his Service Record, as 1 mark was deducted for the penalty, whereas the applicant had been awarded the full base 3 marks for the Service Record. Further, it is also evident from the written examination marks, produced at Annexure A-4, that 3 SC candidates, namely, Shri.N.Suresh Prathap Singh at Sl.No.3, Shri.Marthi Dasu Babu at Sl.No.6 and Shri.Sijin.T at Sr.No.11 had scored 76, 74 and 68 marks, which is much higher than the applicant who had scored 63 marks. Since the selection is based on merit, SC candidates who got more marks than the applicant were included in the panel (at Sl.No.3, 6 and 11 respectively). There is no rule that prohibits placing meritorious reserved community employees in the unreserved quota. In other words, it is submitted that the selection was made as per the merit position of the participants. The applicant who had overall scored less marks than the 16th respondent was not selected. It is submitted that the applicant had made certain allegations on the 4 th respondent, the Divisional Electrical Engineer, for which he should be put to strict proof. In addition, while Annexure A-7 in relation to seniority was accepted as a matter of record, it still cannot count in this selection procedure which is based on the 25% LDCE quota.
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10. The 16th respondent also filed a separate reply statement, wherein Annexure R-16(a) Railway Board Circular No.113/2009 dated 19.06.2009 has been produced. This RBE Circular is in relation to the selection procedure for promotion to General Selection posts and the placement of names on Panel. The Circular indicates that in cases of promotion to General Posts in which candidates are called from different categories, whether in the same department or from different departments and where zone of consideration is not confined to three times the number of staff to be empanelled, Panels should be strictly prepared as per merit, with reference to marks obtained by the candidates in 'Professional ability' and 'Record of Service'. Further, it has been indicated therein that subject to usual relaxation for SC/ST staff wherever permissible those securing less than 60% in 'Professional ability' and 60% in aggregate, will not be considered eligible for inclusion in the Panel. It is also indicated that the service records of only those candidates who had secured a minimum of 60% marks in 'Professional ability', shall be assessed. It is submitted that these instructions had superseded all previous instructions and was the procedure governing the selection process at this stage. It is submitted that the contention of the applicant that all empanelled staff -17- will be subjected to Trade Test and on passing of the same will be promoted as Technician-III was also not fully correct. Only those empanelled staff possessing the qualification of ITI/Course Completed Act Apprenticeship in the relevant trade can be promoted as indicated above. In all other cases, one year training is essential before being promoted. Further, it is submitted by the 16 th respondent that the applicant did not have the said qualification from ITI in the relevant trade ie., in Airconditioning. His qualification was ITI/Electrical, whereas the 16 th respondent was a B.Sc (Maths with Physics and Chemistry) with MBA. It is also submitted by the 16th respondent that the selection was not based on seniority. Moreover, inter-se seniority was not relevant as the selection was conducted by considering Helpers belonging to different seniority units in the Electrical Department of Trivandrum Division. It is for that reason that the names of all those who are included in Annexure A-4 was not seen in Annexure A-7 seniority list.
11. In other words it is submitted by the 16 th respondent that the marks in the written examination, as shown in Annexure A-4, are not relevant for the final empanelment since such empanelment is in terms -18- of the Annexure R-16(a) RBE Circular No.113/2009, which has the force of law. The Annexure A-1 Panel has been prepared not just based on the marks obtained in the written examination alone, but has been prepared based on the marks awarded in the final selection process, which consist of marks obtained in the written examination as well as record of service. In response to the averment about the seniority or rules being flouted, the 16 th respondent has also pointed out that no orders or rules in support of the said averment have been produced by the applicant in the O.A. It is submitted that the 16 th respondent himself had been appointed as a Khalasi on 18.05.2005 in the Electric Loco Shed, Erode. He later joined the Train Lighting Side of the Electrical Department of Trivandrum Division as a Helper on 20.09.2010 and came to the Airconditioning side on 21.04.2012. Hence, he has a longer and better length of service and experience than the applicant. In addition, his overall performance and record of service is superior to that of the applicant and that is why he has been placed in the Panel. It is submitted that in fact the Annexure A-6 Penalty Advice should not have been taken into consideration for this selection proceeding, unlike what the respondents have done, in terms of Annexure A-3 dated 29.06.2016 as the service records and confidential reports have -19- been taken into consideration should have been for a period prior to that date ie., for the years 2013-14, 2014-15 and 2015-16, where the position of law is quite settled.
12. We must note at least in passing at this stage that the different contentions in this O.A were developed by both sides as and when additional pleadings were received ie., many additional arguments were included in support of one position or the other, as and when rejoinders/M.A/argument notes were filed. It is the rejoinder filed by the applicants that contains the strongest arguments in his favour. The applicant submits in his rejoinder that even if Annexure R-1 Railway Board Circular No.166/2003 dated 23.09.2003 in relation to selection has provided for 85 marks for the written test and 15 marks for record of service, nowhere has been laid down that there should be a further sub- division for the record of service, as has been carried out by the official respondents and indicated in their reply statement. He submits, as an example, that nowhere has it been mentioned or indicated that possessing a degree would fetch more marks in the selection than possessing a ITI Diploma in the Electrical Trade, which is directly linked to the job. He submits that the Annexure A-3 notification should have referred to -20- Annexure R-1 Railway Board Order if that was the right procedure. However, the Annexure A-3 notification mentioned that the selection would consist only of written examination. No indication in relation to record of service etc., has thus been indicated in the Annexure A-3 notification, which does not even refer to any of the Railway Board orders. In other words, what has been stated in Annexure A-3 should not be deviated from. The respondents as well as the 16 th respondent are thus seeking to confuse this Tribunal.
13. The crux of the argument relied upon by the applicant is based on paragraph 159 (1) of the Indian Railway Establishment Manual (IREM). It is submitted that this is the only rule in the IREM in relation to the selection to the post of Skilled Artisans Grade-III in various Engineering Departments. This rule (paragraph) provides that the posts will be filled as under :
"(i) 25% plus shortfall, if any against LDCE quota as at (ii) below by selection from Course Completed Act Apprenticeship, and ITI passed candidates in relevant trades from the open market; serving employees who are "Course completed Act Apprentices" or ITI qualified could be considered against this quota allowing age relaxation as applicable to serving employees; and -21- Note : Act Apprenticeship/ITI in relevant trade is the only qualification and no other qualification including Diploma in Engineering should be accepted as an alternative qualification on the ground of being a higher qualification in the same line of training.
(ii) 25% from serving semi skilled and unskilled staff with educational qualification as laid down in the Apprentices Act; and
(iii) 50% by promotion of staff in the lower grade as per prescribed procedure."
14. The contention of the applicant is that it is crystal clear from the above that a Bachelor's degree in any discipline should not give any additional score when selection is made for a technical post and that any averment to this effect is illegal and unsustainable. In any case, the contention that a degree qualification should have higher weightage makes little sense, since recruitment/promotion is to a technical post. Therefore, a technical qualification and that too with an ITI and Trade Certificate in the relevant trade is the only requirement. A Railway Board Order dated 03.08.2001 specifically states that no other qualification, not even Diploma in Engineering, should be accepted as an alternative qualification on the ground of being a higher qualification in the same line of training. This is also provided in the Note under paragraph 159(1)(i). Thus a degree of B.Sc Maths or MBA cannot be -22- given priority on the ground of it being a higher qualification as it is not the same as an ITI qualification in the relevant trade. A copy of the said paragraph 159 (1) of the IREM has been produced by the applicant at Annexure A-13. Hence it is submitted by the applicant that since the qualification of B.Sc Maths/MBA is not the same as an ITI Course Completed in the relevant trade, awarding additional marks for the B.Sc degree possessed by the 16 th respondent is a new and unacceptable introduction by the 3rd respondent, the Senior Divisional Personnel Officer, Southern Railway, Trivandrum. This has the effect of vitiating the selection proceedings and granting undue favour to the 16 th respondent.
15. On the other hand, it is submitted that the applicant is holding an ITI Certificate in the Electrical Trade issued by the Railways along with NCVT and NAC (3 years). He is, therefore, better qualified than the 16 th respondent. Moreover, as admitted by the respondents themselves, the 16th respondent had been inflicted with a penalty. The respondents have failed to justify how a person facing penalty is preferred over an employee who is having unblemished service to be included in the Select List. It is also hard to justify an 'Outstanding' Personal Assessment -23- Report (PAR) awarded to an employee, who had been served with a Penalty Advice. Even if 1 mark is reduced by the penalty for Service Record, it should be noted that the 16 th respondent got the benefit of full 5 marks for Performance Report based on the PARs, which is quite contradictory. Hence, there is not merit in the contentions put forth by the respondents. In addition, it is also submitted that the officer who gave this undue 'Outstanding' assessment in the PAR to the 16 th respondent had been transferred from the said post because of his corrupt practices.
16. Similar contentions to the above have also been further developed in the Argument Note submitted by the applicant. It is reiterated therein that no procedure for examining the 'record of service' was stipulated in the notification issued at Annexure A-3 calling for volunteers for the said promotion under 25% LDCE Quota. Further, no relevant Railway Board orders had been referred to in the notification. The 16 th respondent was unnecessarily been given 1 mark more than the applicant because he is a degree holder and, thereby, included in the Select List. The Note under IREM Paragraph 159(1) specifically states that Act Apprenticeship/ITI in relevant trade is the only qualification and that no other qualification -24- including Diploma in Engineering should be accepted as an alternative qualification on the ground of being a higher qualification in the same line of training. Thus, the respondents cannot grant higher or more marks to the 16 th respondent who has the qualification of B.Sc (Maths) and MBA as it is not the same as an ITI Course completed in relevant trade.
17. The above contentions have not been refuted by the official respondents by way of any additional reply statement etc., filed by them. We note that it is only the 16 th respondent who has sought to meet these contentions in his own argument note. In the argument note given by the 16th respondent, it is submitted that the Annexure R-1 Railway Board Order No.RBE 166/2003 dated 23.09.2003 which had been produced by the official respondents has not been disputed by the applicant as irrelevant in the consideration of this matter. Further, the Railway Board Order produced vide Annexure R16(a) by the 16 th respondent has also not been disputed. It is submitted that these are the main two circulars RBE No.113/2009 dated 19.06.2009 by which the Select List has to be prepared. Once this position is admitted, nothing further needs to be adjudicated. Even though the applicant had prayed for a direction to the -25- respondents to prepare the Select List strictly in accordance with the Railway Board instructions and notifications, no additional Railway Board instructions or notifications have been specifically referred to or produced by him.
18. The 16th respondent has reiterated the contention made by the official respondents that the selection process for preparation of the Select List/Panel provides that 85% marks are kept for the written examination and 15 marks for the record of service. The 15% marks kept for the record of service is further sub divided as 5 marks for Service Record (3 for base marks plus 1 mark for each award and minus 1 mark for each penalty), 5 marks for Performance Reports and 5 marks for Educational Qualification. Thus, in other words, the official respondents had clearly indicated that the selection process was not confined to the written examination alone but consists of 85% weightage for written examination and 15% for the record of service. The Annexure R-1 Railway Board Order No.RBE 166/2003 produced by the official respondents in support of their case categorically shows that there was no infirmity in the selection process. Further, in regard to the contention made by the applicant in relation to paragraph 159 (1) of the IREM -26- produced at Annexure A-13, it is submitted by the 16 th respondent that the applicant has referred to this paragraph to suggest that the 16 th respondent was not eligible to be considered for promotion to the post against the 25% LDCE quota and that the awarding of 1 extra mark for his degree qualification was not justified. In this connection, the 16 th respondent submits that paragraph 159 (1) of the IREM has to be read in total to understand that there are three modes of appointment to the posts in the category of Skilled Artisan Grade III which is indicated as follows once again for ease of comparison :
"i) 25% plus shortfall, if any against LDCE quota as at
(ii) below by selection from Course Completed Act Apprenticeship, and ITI passed candidates in relevant trades from the open market; serving employees who are "Course completed Act Apprentices" or ITI qualified could be considered against this quota allowing age relaxation as applicable to serving employees; and Note : Act Apprenticeship/ITI in relevant trade is the only qualification and no other qualification including Diploma in Engineering should be accepted as an alternative qualification on the ground of being a higher qualification in the same line of training.
(ii) 25% from serving semi skilled and unskilled staff with educational qualification as laid down in the Apprentices Act; and
(iii) 50% by promotion of staff in the lower grade as per prescribed procedure."-27-
It is contended by the 16 th respondent that the selection in question in the O.A.No.180/787/2018 pursuant to Annexure A-3 notification, comes under the (ii)nd provision of paragraph 159 (1) of IREM as brought out above. The Note on which the applicant is paying great emphasis in order to justify that no extra marks should have been awarded to the degree possessed by the 16 th respondent is under the (i)st provision of paragraph 159(1). It only refers to the direct recruitment envisaged under that provision (i) of the paragraph 159 (1) of the IREM. It does not refer to the particular recruitment which is initiated under provision (ii) of the paragraph 159 (1) of the IREM. The only criteria that has been mentioned in the provision (ii) of the paragraph 159 (1) is that 25% of the posts should be filled from serving semi skilled and unskilled staff with educational qualification as laid down under the Apprentices Act.
19. Learned counsel for the 16 th respondent, Shri.T.C.Govindaswamy during oral submissions produced a copy of the Apprenticeship Act, 1961 for reference. As per Section (3) of the Apprenticeship Act, 1961 "a person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he (a) is -28- not less than fourteen years of age, and for designated trades related to hazardous industries, not less than eighteen years of age; and (b) satisfies such standards of education and physical fitness as may be prescribed." Further, it is given in the definition at Section 2(m) that "prescribed" means prescribed by the rules made under this Act. In the Apprenticeship Rules, 1992 it has been provided in Rule 3 in relation to standard of education that "a person shall be eligible for being engaged as a trade apprentice - if he satisfies the minimum educational qualifications as specified in Schedule I." Further, as per Schedule I of the rules which has prescribed the designated trade and essential/desirable educational qualifications it is indicated under Group No.9 - Refrigeration and Air-Conditioning Trades that the essential/desirable educational qualification is 'passed 10 th Class examination under 10+2 system of education or its equivalent'. Learned counsel contended that this is the same qualification which has been mentioned in the Annexure A-3 notification for selection to the post and to the extent that it had indicated the said educational qualification, the same was not challenged by the applicant. Thus, in this connection, since the only qualification which is required by the candidate is a pass in the 10 th Class, there is apparently no need for -29- further qualifications. Thus the argument that a person who possessed a ITI or Electrical Engineering Diploma should be given additional weightage was not relevant as the only qualification under the Apprenticeship Act which is required is a pass in Class 10 examination or its equivalent.
20. It is submitted by learned counsel that the Note below paragraph 159 (1) which has been relied upon by the applicant thus applies only to the direct recruitment quota. It is not relevant for promotion against the 25% LDCE quota meant for serving employees. The contention of the applicant that the 16th respondent is not eligible for consideration for promotion is thus misconceived. Further, the principle behind giving marks as per the record of service being further broken up in 3 different parts for 'performance', 'service record' and 'educational qualification' with higher marks being given for a degree over a diploma has been followed in the Railways, as per the learned counsel for the applicant, from 2003 onwards. This has been the procedure that has been followed in all such recruitments/selections that have been conducted after the Annexure R-1 circular (RBE No.166/03) was issued. This was never questioned by the applicant and hence, it is not correct for him to do so at -30- this stage. In addition, it should also be noted that the applicant does not have any specific qualifications in Refrigeration or Air-Conditioning. Hence, even if one takes into account his qualification from the ITI, it appears not to be in the relevant trade. The applicant was allowed to take part in the LDCE purely on the basis of his Class 10 qualification, as were all others including the 16 th respondent who had appeared in the same. As mentioned earlier this was the qualification which was also indicated in the Annexure A-3 notification. Further, the said notification was not challenged by the applicant.
21. It is also submitted that there was no case by the applicant that the Annexure R-1 Railway Board Order of 2003 (RBE No.166/2003) or the Annexure R-16(a) Railway Board order produced by the 16 th respondent (RBE No.113/2009) are not applicable in the selection. They are the only rules which the official respondents have strictly followed. Hence, the Relief No.3 sought to direct the respondents to prepare the select list strictly in accordance with the Railway Board instructions and notifications has no foundation. Learned counsel has also drawn attention to the recent judgment of the Hon'ble Supreme Court in Tajvir Singh Sodhi & Ors. vs. The State of Jammu & Kashmir & Ors., in -31- Civil Appeal Nos.2164-2172 of 2023 (Special Leave Petition (C) No.20781-20789 of 2021) dated 28.03.2023 where at paragraph 12.1 it has been indicated as follows :
"Thus the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee......"
It is thus submitted that a policy decision in relation to appointment procedure by which the record of service which consists of 15 marks, had been further sub divided from 2003 onwards with certain criteria applicable to all the candidates cannot be attacked at this stage on the principle of estoppel. In addition, no argument was made on this aspect in the grounds in the O.A. In other words, it is submitted that the 16 th respondent had been selected as per the law of the land and the Panel was finalized accordingly.
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22. The learned counsel for the applicant contended in response that these arguments had not been developed in the O.A as the relevant information in relation to the method of selection was given by the respondents only in the reply statement etc. The marks indicated at Annexure A-4 in relation to the written examination were published only for the applicant after the Annexure A-1 Panel was finalized. Further, learned counsel Smt.Shameena Salahudeen contends that when the matter was under consideration, two other candidates, who had been included in the Annexure A-1 Select List, have got their normal promotion under the 50% promotion quota on seniority basis. They were automatically promoted as Technician Grade III after the completion of the trade test. It is submitted that this will make room for another two candidates for promotion under the 25% quota, which can include the applicant.
23. At this stage it is to be noted that the linked O.A.No.180/6/2020 was filed by an applicant who had also appeared in the same LDCE. He submits that he is the next eligible person and prays for inclusion in the Select List against the said 2 vacancies above after 2 of the selected candidates had got normal promotion as Technicians under the -33- 50% quota under the seniority basis. This prayer was however rejected by the respondents vide Annexure A-1 order in the said O.A.No.180/6/2020. It was stated that the name of the applicant was never in the Panel. The selection proceedings were thus completed to the requirement and were accordingly treated as closed. The Select Panel consisted of 12 names to the extent of notified vacancies. It was published on 06.08.2018 and the applicant in O.A.No.180/6/2020 Shri.B.Binu had not been included. The selected employees were later deputed for training. Even if two employees out of this Panel happened to be later considered against the seniority promotional quota, there was no provision to make any replacement to the Panel which has been published earlier. However, applicant has contended in O.A.No.180/6/2020 that as per Chapter II IREM, Section B, Paragraph 220 the currency of a Panel is for 2 years. There is, therefore, nothing wrong in making an inclusion in the Panel in place of the 2 officials who were promoted. Moreover, this was a selection process which had been initiated in the year 2016 after a long gap. Hence such vacancies should have been filled up during the life of the Panel itself. Further, the Interim Order in the O.A.No.180/787/2018 filed by Shri.M.Mohan had kept one post vacant and, thus, including that post, -34- there were 3 vacancies which could be easily adjusted for Shri.M.Mohan, the applicant herein (Shri.B.Binu) as well as the 16 th respondent (Shri.R.Lakshmanan).
24. The respondents have, however, countered the above contentions in their reply statement in O.A.No.180/6/2020. They submit that the Panel which is once approved cannot be changed and that there is no provision to include any candidate after the publication of the Panel. If a person was not having the required marks to be placed in the Panel list, he cannot later claim an indefeasible right to claim promotion. No vested right accrues as a guarantee of promotion is not a condition of service. Further, the employees in the Select List/Panel had completed their one year mandatory training and had joined in the respective place of posting. There was thus no way that the applicant in O.A.No.180/6/2020 could be included at this stage. It was also never contended that there was any malafide intention in forming the Panel excluding him. A Panel which is once approved cannot be cancelled or amended, except in case after it was formed and announced with the approval of the competent authority it was found that there were substantial procedural irregularities or other defects and it was considered necessary to cancel or amend the Panel. -35- Further, this would have to be done after obtaining the approval of the next authority higher than the one that approved the Panel. In the present case there were no procedural irregularities or defects in the Panel. It is submitted that out of 12 employees placed on the Panel, 11 had undergone the training. One post was kept vacant subject to the final outcome of the O.A.No.180/787/2018 filed by Shri.M.Mohan. Hence the last person in the Panel, namely, Shri.R.Lakshmanan, was kept away from the training. Even if some of the employees who found place in the Panel on their merit, namely, Shri.Suresh Prathap Singh at Sl.No.3 and Shri.S.Gopakumar at Sl.No.10 were later promoted as Technician Grade-III under seniority promotional quota, this did not imply that the applicant could immediately be placed in the Panel in replacement. He had not qualified for the selection as per the merit and, hence, there was no question of denial of justice. The Hon'ble Supreme Court in a catena of cases had observed that no one has a vested right for promotion and that promotion is not a condition of service.
25. We have carefully considered the above contentions and arguments provided by both sides in the two O.As. In the first O.A.No.180/787/2018, even if the official respondents had -36- not provided specific arguments to meet the contentions of the applicant, the 16 th respondent through his counsel has brought to our notice various points, including that the selections which are to be conducted under the 25% LDCE quota from among serving employees need only take into consideration educational qualifications as per the Apprenticeship Act. It appears that as per the Act, only a Class 10 basic qualification or its equivalent is required and part of the training can be provided once the selection is done. From the details of the selection proceeding it appears that the 16th respondent was placed above the applicant in O.A.No.180/787/2018, after the record of service was taken into account, inspite of the fact that they had scored equal marks in the examination. The difference in marks in the record of service, which was just 1 mark, has caused this to happen. As pointed out by the learned counsel for the 16 th respondent, there appears to be no rule violation and, in fact, the procedure followed appears to be as per the Annexure R-16(a) and Annexure R-1 Railway Board Circulars. These have not been contradicted by the applicant. It has not been denied that the procedure of breaking up the 15 marks for record of service into 3 segments of 5 marks each for Service Record, Performance Report and Educational Qualification -37- with additional marks being added to or subtracted from the base mark, is something which has been in vogue in the Railways from 2003 onwards. This particular system was not contradicted by the official respondents and, in fact, it was being brought out by them that this was the procedure which was followed in the instant case. We also do not find anything in the Supreme Court's judgment in Tajvir Singh Sodhi (supra) that would cause us to interfere with the process of selection.
26. We do not, therefore, find any reason in the overall facts and circumstances of this case to warrant interference of this Tribunal in favour of the applicant. The O.A.No.180/787/2018, therefore, fails. In this connection, we also direct the official respondents to ensure that the 16 th respondent does not lose seniority etc., due to the fact that one post was kept vacant by way of the interim order passed in the O.A and he was kept away from training. The 16 th respondent may be sent for the appropriate training and also granted the right seniority along with others in the Select List produced at Annexure A-1. His interest would need to be protected to this extent as the operation of the interim order passed -38- by this Tribunal has directly affected it. The respondents are, therefore, directed to take necessary steps as ordered above in the shortest possible time.
27. The applicant in O.A.No.180/787/2018 has, in addition, filed M.A.No.180/430/2019 for a direction to consider the Annexure A-11 application submitted by him for revaluation of his answer book in the written examination. He has submitted in the M.A that as per the written notes provided for training of Technicians by the respondents, for Question No.1 in Part B the answer has 17 points. The total marks allotted for the said question is 10. The applicant submits that he had answered 14 out of the 17 points correctly and is entitled to get at least 8 marks. However, he has been awarded only 4. Similarly, for Question No.2 too, he has been awarded lesser marks. A copy of the relevant notes of the answer booklet and the question booklet has been produced at Annexure A-10. We have considered the M.A. We do not find this is maintainable in the context of the O.A., as it seems to go beyond the reliefs sought by the applicant, which was only in relation to inclusion of the applicant in the Select List in place of the 16 th respondent on the specific grounds which were brought out earlier. The request in the M.A -39- thus appears to be going beyond the scope of the O.A in that sense. Further, it is also not clear under what provision in the rules that the applicant is seeking revaluation of his answer sheets after participating in the selection process. Hence, we are not accepting the prayer in the M.A. The same is closed without directions.
28. We now come to the relief sought in the second O.A.No.180/6/2020. There too, in line with the arguments provided by the respondents as well as in line with our conclusions in O.A.No.180/787/2018 we do not find that a case has been made by the applicant for interference of this Tribunal for changes/inclusion of the applicant's name in the prepared Select List for promotion under the 25% LDCE quota. Even if it is a fact that two persons who appeared in the Select List were subsequently promoted in the usual promotional quota by virtue of their seniority, it does not necessarily result in a change of the Panel and that someone outside the panel should be included in their place. If such orders are passed, it would create dislocation and it would result in sustained prolonging of the life of a Panel. In such cases, as has been laid down by the Hon'ble Supreme Court in a number of judgments, it is best left to the Selection Committee to do the needful. -40- There is no justification for this Tribunal to intervene in changing a Panel when no malafide or legal infirmity has been established. In any case, the fact of the matter is that since the order in O.A.No.180/787/2018 has not gone in favour of the applicant therein that applicant will remain in a higher position than the applicant in O.A.No.180/6/2020. Hence the relief cannot be granted on that ground as well and so necessarily the O.A.No.180/6/2020 also fails.
29. We accordingly do not allow the O.As. The respondents are directed to take necessary steps as indicated above in O.A.No.180/787/2018 at an early date. We make no order in relation to costs in both the O.As.
(Dated this the 26th day of September 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00787/2018
1. Annexure A-1 - A copy of the Select List published by the 4 th respondent dated 06.08.2018.
2. Annexure A-2 - A copy of the Office Order No.47/2010/E1(AC) dated 30.07.2010.
3. Annexure A-3 - A copy of the Notification No.V/ 608/Vol.III Elec/AC/Tech-III/LDCE/Vol.-2 dated 29.06.2016.
4. Annexure A-4 - A copy of the Proceedings No.V/P.608/Vol.III/Elec/AC/Tech.III/Vol.2 dated 14.08.2018.
5. Annexure A-5 - A copy of the representation dated 22.08.2018 preferred by the applicant.
6. Annexure A-6 - A copy of the Penalty Advice No.V/E150/1/3/DAR/RL dated 11.05.2017.
7. Annexure A-7 - A copy of the relevant pages of the seniority list of the Electrical/AC Department dated 13.07.2018.
8. Annexure A-8 - A copy of the answer book.
9. Annexure A-9 - A copy of the question booklet.
10. Annexure A-10 - A copy of the relevant pages for the training of Technicians Notes.
11. Annexure A-11 - A copy of the request for revaluation of answer book submitted by the applicant.
12. Annexure A-12 - A copy of the Alert Notice No.V/P 671/VIII/Elec.AC Trade Test dated 04.01.2019.
13. Annexure A-13 - A copy of the of the relevant extract from IREM Vol.I. -42-
14. Annexure R-1 - A copy of the Railway Board's letter No.E(NG)I- 96/PM 7/56 dated 23.09.2003 (RBE No.166/2003).
15. Annexure R-16(a) - A copy of the Railway Board Order bearing No.E(NG)I-2008/PM7/4 SLP dated 19.06.2009 - (RBE No.113/2009) List of Annexures in O.A.No.180/00006/2020
1. Annexure A-1 - A copy of the Communication No.V/P721/GC/ESM/42 dated 11.03.2019.
2. Annexure A-2 - A copy of the request of the applicant dated 23.01.2019.
3. Annexure A-3 - A copy of the Notification No.V/P.608/Vol.III Elec/AC/Tech-III/LDCE/Vol.-2 dated 29.06.2016.
4. Annexure A-4 - A copy of the Select List published by Memorandum No.P.608/VIII/Elec/AC/Tech-III/LDCE/Vol.-2 dated 06.08.2018.
5. Annexure A-5 - A copy of the Proceeding No.V/P/608/Vol.III/Elect/AC/Tech.III/Vol.-2 dated 14.08.2018.
6. Annexure A-6 - A copy of the Office Order No.09/2019/Elec./AC dated nil.
7. Annexure A-7 - A copy of the No.V/P 608/Vol.III/Elec/EL/GS/Tech-III/Power/LDCE-Vol.II dated 04.01.2019.
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