Central Administrative Tribunal - Madras
K Nelson vs M/O Railways on 13 June, 2024
1 OA 1379/2015
CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH
OA No.310/01379/2015
Dated, Thursday, the 13th day of June, Two Thousand Twenty Four
CORUM:
HON'BLE MR. MANISH GARG, MEMBER(J)
&
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
1. K. Nelson,
Senior Technician,
Carriage and Wagon Unit,
Rameswaram, Madurai Division, S. Rly.
2. R. Pandiselvam,
Senior Technician,
Carriage and Wagon Unit,
Madurai, Madurai Division, S. Rly. ... Applicants
By Advocate M/s. Ratio Legis
Vs
1. Union of India rep. by
The General Manager, Southern Railway,
Park Town, Chennai - 3.
2. The Senior Divisional Personnel Officer,
Madurai Division, Southern Railway,
Madurai - 16.
3. M. Arasappan,
Technician I/C&W, Madurai, S. Rly.
4. M. Prasanna Chandru,
Technician I/C&W, Madurai, S. Rly.
5. Mandiradoss Ganesh,
Technician I/C&W, Madurai, S. Rly.
6. Giritharan,
Technician I/C&W, Milavittan,
Madurai, S. Rly. ... Respondents
By Advocate Mr. R. S. Krishnaswamy
2 OA 1379/2015
ORDER
(Pronounced by Hon'ble Mr. Manish Garg, Member(J))
1. In the instant OA, the applicant seeks the following relief(s):
"To call for the records related to the impugned order no. U/P608/IV/JE/C&W/25%LDCE, dated 10.09.2015, issued by the 2nd respondent and further to direct the respondents to redraw on strict seniority and to pass such order/orders as this Hon. Tribunal may deem fit and proper and thus to render justice."
2. The brief facts of the case are as under:
2.1 The applicants are presently working as Senior Technicians in the respondent department. When they were working as Technicians- I, a notification, dated 02.03.2015, for filling up of the vacancies of Junior Engineer C&W was issued and the applicants applied for the same. According to the applicants, the ratio for filling up of the post of Junior Engineer C & W, notified in the said notification, is UR - 3, SC - 1. The Applicants belong to the UR category. The applicants qualified in the written examination and their names were shown at Sl. Nos. 2 and 3, respectively, in the list, dated 23.07.2015. But, the applicants were not included in the final Empanelment List, dated 10.09.2015.
2.2 It is contended by the applicants that the denial of their appointment is not on the basis of merit. They would further contend that the present selection and rejection of their candidature is in violation of SER. No. 3/87, dated 26.11.1986, which is produced as under:
"As the Railway Administrations are aware, 25% of the vacancies in the grade of Chargemen scale Rs. 425-700/1400-2300 are filled as Apprentice Mechanics drawn from amongst Rankers who 3 OA 1379/2015 possess the requisite qualifications laid down in Board's letter No. E (NG) 1-57/TRI/9 dated 18.03.1961 as clarified/modified vide their letters No. E. (NG)1-75 PMI/122 dated 21.02.1976 and 23.11.1976. It has been suggested to the Board that the normal procedure of selection for promotion to selection posts should be followed for selection of these (intermediate) apprentices too, and accordingly only three times the number of persons to be empanelled should be called for the selection. Information obtained from some of the Railways shows that generally the procedure is to call all volunteering eligible staff for appearing in the written test such of them as obtain 60% marks in the written test are called for viva-voce test. The final panel is drawn up on the basis of seniority from amongst the staff who qualify for empanelment.
2. The suggestion referred to above has been considered by the Board who are unable to agree that only three times the number to be empanelled should be called for the selection. Accordingly the Board wish to clarify that all-the eligible volunteers should be called for the written test. All those, who secure 60% or above in the written test should be called for interview. Such of them as secure at least 60% marks under 'Professional ability" and 60% in the aggregate would qualify to be empanelled The panel should be drawn up on the basis of seniority from among those who qualify. However, all the candidates who secure above 80% marks should be treated as outstanding and placed on the top of the panel without any restriction as to their number but maintaining the inter-se-seniority among themselves Of course the total number to be empanelled will be limited to the number to be taken as Inter Apprentices against the prescribed quota.
3. The above procedure will apply mutatis mutandis to selection of apprentices (ie inter apprentices) from among serving employees in other categories of technical supervision like Signal Inspectors, Train Examiners etc.
4. Where the practice on any Railway Administration is different from the procedure laid down above, these instructions will apply to selection of Inter Apprentices initiated in future."4 OA 1379/2015
2.3 The applicants would contend that, based on the aforesaid instructions, seniority has to be the criteria under merit-cum-seniority and, therefore, they are eligible and entitled to selection to the said post. The applicants have also impleaded in the present OA, the private respondents who were selected. They rely upon the decision, dated 26/27.06.2014, rendered by the Gujarat High Court in SCA No.4066/2009 & batch, wherein this circular, dated 26.11.1986, was relied upon by the respondents. The relevant portion of the said judgment is extracted hereunder:-
"C/SCA/4066/2009 JUDGMENT The stand of the Railway authorities before the Tribunal was that the posts belonged to 25% quota earmarked for intermediate apprentices amongst the serving employees of the Railways. Criteria for selecting candidates under such quota was governed by the Railway Board's circular No 232/86 dated 26.11.1986 which laid down a detailed procedure. Such procedure was followed. The Tribunal, therefore, should dismiss the original application."
3. Countering the argument put forth by the learned counsel for the applicants, the learned counsel for the respondents would specifically rely upon Para 6 of the reply which is extracted hereunder:
"It is humbly submitted that in terms of the Railway Board's letter No.E(NG)I-2008/PM7/4 SLP, dated 19.06.2009, which was issued in compliance of the Orders of the Hon'ble High Court of Punjab & Haryana in WP No. 4746/2002 and confirmed by the Hon'ble Supreme Court of India in SLP No. 16774/2008, the list of selected employees was published on the basis of the order of merit of the volunteers by computing the marks secured by them in the written examination and record of service together."
3.1 It is contended that pursuant to the above, the applicants could not be given empanelment and the Competent Authority of the respondents have rightly passed the order, dated 10.09.2015.
5 OA 1379/20153.2 The respondents further rely on the decision, dated 16.11.2018, rendered by the Hon. High Court of Madras in WP No.22273/2016 wherein the Hon. High Court has held as under:-
"7.On a perusal of the order of the Tribunal, we do not find any error warranting interference. Admittedly, the petitioner and those selected belong to different feeder categories. It is no body's case that the common seniority list is available for different feeder categories. In fact, if one goes by the Board's letter dated 19.06.2009 even for the same feeder category there are different seniority lists which are being followed unit based. Therefore, for each and every unit of one feeder category, separate seniority is being followed. Even that has been frowned upon by the Court, including the Apex Court. Therefore, the Manual governing will have to be seen contextually to mean the seniority with the same unit and not otherwise. This would also mean that there cannot be a common seniority between different feeder categories obviously. Thus, we do not find any error in the impugned order of the Tribunal, warranting interference. Accordingly, the writ petition stands dismissed. No costs."
4. Despite the opportunity given to the private respondents, they have chosen to remain silent. Heard both sides and perused the records.
5. ANALYSIS 5.1 The point for consideration in the present OA is whether the applicants' case has to be considered as per the RBE No.232/86, dated 26.11.1986, relied upon by the applicants, or as per the Railway Board communication, dated 19.06.2009, relied upon by the respondents.
5.2 We find that the respondents before the Hon. Gujarat High Court in SCA.No. 4066/2009 & batch relied upon RBE No.232/86, dated 26.11.1986, 6 OA 1379/2015 stating that the criteria for selecting candidates under 25% quota earmarked for intermediate apprentices among the serving employees of the Railways was governed by the said RBE No.232/86 which laid down a detailed procedure and the Hon. Gujarat High Court, after taking into account all the aspects, vide order, dated 26/27.06.2014, has held as under:-
"It is not in dispute that tested from the parameters laid down in the said circular dated 26.11.86, the panel of selected candidates would suffer from no irregularity. This method of selection provided in the said circular was not under challenge before the Tribunal. If that be so, in our opinion, the Tribunal could not have directed the Railway administration to re-draw the panel by resorting only to merit of the candidates discarding other prescriptions made in the said circular. The circular provided for the manner in which panel would be drawn. The Railway administration having drawn the panel accordingly, the Tribunal could not have quashed the panel particularly when the method of drawing the panel was not in challenge nor declared invalid by the Tribunal. In our opinion, the Tribunal fell in error in holding that the seats could have been filled up only by limited departmental competitive examination which in turn would focus only on the performance of the candidates during such examination. As noted, the guidelines provided for drawing two categories of successful candidates, outstanding and the rest. Within each category, placement of the successful candidate would be on the basis of his seniority. Bunching of candidates as outstanding, very good, good, etc. is neither unknown in service jurisprudence nor impermissible. If the Railway administration drew a clear distinction between two classes of candidates who had performed at an outstanding level in the examination and the rest who might have qualified, but did not have the same performance, in our opinion, the same cannot be stated to be an arbitrary distinction. In any case, the policy itself was not in question before the Tribunal or before us."
5.3 Now, the very same respondent department, relying upon the Railway Board communication, dated 19.06.2009, is rejecting the case of the present applicants. The respondents are taking shelter, for obvious reasons, under the Railway Board communication, dated 19.06.2009, on the basis of the fact that, in terms of the Railway Board's letter No.E(NG)I-2008/PM7/4 SLP, 7 OA 1379/2015 dated 19.06.2009, which was issued in compliance with the Orders of the Hon'ble High Court of Punjab & Haryana in WP No. 4746/2002 and was confirmed by the Hon'ble Supreme Court of India in SLP No. 16774/2008, the list of selected employees was published on the basis of the order of merit of the volunteers by computing the marks secured by them in the written examination together with the record of service. 5.4 There is nothing on record to show that RBE No.232/86 has been superseded or Railway Board's letter No.E(NG)I-2008/PM7/4 SLP, dated 19.06.2009, has an overriding effect on the same. Furthermore, there is nothing on record to show that the case of the applicants was akin to that in WP No. 4746/2002, as confirmed by the Hon'ble Supreme Court of India in SLP No. 16774/2008. There is no explanation coming forth with regard to the applicants, currently working as Senior Technicians in the respondent department, that when they were working as Technicians-I, a notification, dated 02.03.2015, for filling up the vacancies of Junior Engineer C&W was issued and the applicants had applied for the same. According to the applicants, the ratio for filling up of the post of Junior Engineer C& W, notified in the said notification, is UR - 3, SC - 1. The Applicants belong to the UR category. The applicants had qualified in the written examination and their names were shown at Sl. No. 2 and 3, respectively, in the list, dated 23.07.2015. But, the applicants were not included in the final Empanelment List, dated 10.09.2015. It is not clear from the records whether the respondents have considered the case of the applicant in terms of RBE 232/86. More so, the said policy had been upheld, i.e., the applicants, even though at Serial nos. 2 and 3 fall under the zone, i.e., all the candidates who secure above 80% marks should be treated as outstanding and placed on the top of the panel, without any restriction as to their number, but maintaining the inter-se seniority among themselves, of course, the total 8 OA 1379/2015 number to be empanelled will be limited to the number to be taken as Inter Apprentices against the prescribed quota. There is no explanation coming forth why such differential treatment has been accorded to the applicants.
6. CONCLUSION In view of the above, we dispose of the OA by setting aside and quashing the impugned order no. U/P608/IV/JE/C&W/25%LDCE, dated 10.09.2015, issued by the 2nd respondent and directing the respondents to redraw the panel strictly on seniority. Needless to say, consequential relief may follow. The said exercise be completed within a period of three months from the date of receipt of a certified copy of this order. All pending MA(s), if any, are also disposed of. No costs.
(Varun Sindhu Kul Kaumudi) (Manish Garg)
Member (A) Member (J)
13.06.2024