Central Administrative Tribunal - Delhi
Komal Prasad vs Union Of India Through on 5 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.2377/2008
New Delhi, this the 5th day of March, 2010
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A)
1. Komal Prasad, S/o Sh. Sham Deo,
Aged about 49 years,
R/o House No. 203, Railway Colony,
Basant Lane, Paharganj, Delhi.
2. Sabhajeet Yadav, S/o Sh. Prahlad Yadav,
Aged about 50 years,
R/o P-71, Railway Colony,
Panipat, Haryana.
3. Shiv Charan, S/o Sh. Om Prakash,
Aged about 51 years,
R/o Vill. & P.O. Safidon Mohalla,
Kalalowala,
Distt. Jind (Haryana).
4. Narender Singh, S/o Sh. Bhagwat Singh,
Aged about 39 years,
R/o G-19(B), Rly. Colony,
Muzaffarnagar (U.P.).
5. Rajinder Prasad, S/o Sh. Layak Ram,
Aged 50 years,
R/o N-31, Teachers Colony,
Sector-12, Pratap Vihar,
Ghaziabad (U.P.)
6. Manmohan, S/o Shri Hira Lal,
Aged 45 years,
R/o B-H 286, Shalimar Bagh,
Delhi.
7. Ranbir Singh, S/o Sh. Lakhi Ram,
Aged about 51 years,
H.No.736 A/21, Gali No.4,
Kailash Colony,
Rohtak (Haryana). ..Applicants
By Advocate: Mrs. Meenu Mainee.
Versus
1. Union of India through
The General Manager,
Northern Railway Head Quarter,
Baroda House,
New Delhi.
2. Divisional Railway Manager,
D.R.M. Office,
State Entry Road,
New Delhi.
3. Sr. D.P.O.,
Northern Railway, DRM Office,
State Entry Road,
New Delhi.
4. Pramod Kumar, S/o Sri Pal
(Service through D.P.O., Northern Railway, New Delhi.)
5. Kuldeep Gupta, S/o Y.K. Gupta
(Service through D.P.O., Northern Railway, New Delhi.)
6. Ashok Kumar, S/o Santar Pal
(Service through D.P.O., Northern Railway, New Delhi.)
Respondents
By Advocate : Shri Shailendra Tiwary.
O R D E R
By Honble Mrs. Meera Chhibber, Member (J) This OA has been filed by as many as 7 persons who have challenged order dated 18.9.2008 (page 13) whereby a provisional panel for the post of Senior Permanent Way Supervisor (hereinafter referred to as PWS) in the grade of Rs.5000-8000 against 25% Limited Departmental Competitive Examination (hereafter referred to as LDCE) quota has been issued. They have further stated that respondents be directed to prepare a fresh panel in accordance with law and thereafter the said candidates be sent for necessary training.
2. It is submitted by the applicants that they were appointed as Gangaman, Keyman or Bunglow Peon. Respondents had issued Notification dated 3.9.2007 (page 36) for selection to the post of Sr. PWS in the grade of Rs.5000-8000 against 25% LDCE quota. As per this notification, all the staff working as Gangman, Keyman and Mates working in the grade of Rs.2610-3540, Rs.2650-4000 and Rs.2750-4400 holding the lien on Delhi Division were eligible provided they had minimum qualification of 10+2 with Science and Mathematics and had three years of regular service as on 31.8.2007. Applicants had also applied. There were total 25 posts out of which 19 were for unreserved category, 4 for SC and 2 for ST candidates. In the written examination 35 persons were declared successful. Applicants name figured at Sl.No. 9, 15, 17, 19, 20, 33 and 35 respectively. Since selected candidates were 35 whereas vacancies were only 25, therefore, respondents decided to shortlist the candidates by way of convening a DPC to consider the seniority-cum-fitness. The final result was declared in September, 2008 but the names of the applicant did not figure in the final list.
3. It is submitted by the applicants that respondents have arbitrarily empanelled only those persons whom they wanted to accommodate which is evident from the fact that respondent No.6 has been reflected at Sl.No.3 in the impugned order even though he was junior to the applicants. While declaring the final result seniors have been ignored because it has been prepared not on the basis of the marks obtained in the written test but as per the seniority. Since it was a selection post, marks obtained in the written test alone should have been taken into consideration on the basis of their merit in the written examination without giving preference to the seniority. They have further stated that respondent No.4 had come to Delhi on his own request on 20.6.2006 and was placed at the bottom of seniority. Thus he did not fulfill the criteria of seniority in comparison to the applicants herein but respondents followed the criteria of pick and choose and resorted to favourtism, therefore, this panel may be quashed and OA may be allowed.
4. Counsel for the applicant placed reliance on the judgment dated 9.4.2008 decided by the High Court of Punjab & Haryana at Chandigarh in Writ Petition No. 4746-CAT of 2002 and OA No. 2108/2007 decided on 16.7.2009 (page 188 at 195).
5. Respondents on the other hand have stated that selection was initiated to fill up 25 posts of Permanent Way Supervisor in the grade of Rs.5000-8000. The eligible candidates were called to appear in the written test held on 24.5.2008 followed by DPC. Since applicants appeared in the said examination and were not found fit, it was not open to them now to challenge the said examination in view of the Supreme Courts judgments in the cases of Chandra Prakash Tiwari Vs. Shakuntala Shakuntla and Others reported in 2002 (6) SCC 127, Om Prakash Shukla Vs. U.O.I. 1986 (Supp.) SCC 285, Union of India Vs. Vipinchandra Hiralal Shah reported in 1996 (6) SCC 721 and Syed Khalid Rizvi and Others Vs. U.O.I. & Others reported in 1993 (Supp.3) SCC 575.
6. They have clarified that on scrutinizing the applications, 89 candidates were found eligible for appearing in the written test whereas only 77 candidates appeared in the written exam and out of these, 36 candidates secured 60% marks in written test and became eligible for further assessment by the DPC. The DPC checked their service record, personal ability and working report/ACR etc. and prepared the panel according to the seniority of those who had obtained 60% marks in professional ability as well as 60% marks in aggregate up to availability of vacancies. The candidates who secured 80% marks were classified as outstanding and were placed in the panel on the top. Since Shri Raj Kumar Shukla and Shri Parmod Kumar had secured more than 80% marks, they were placed at the top of the panel. Similarly as per Railway Boards policy, top priority was to be given to those candidates, who were having the qualification of 10+2 with Science and Mathematics. Since S/Shri Chandan Singh, Kuldeep Gupta and Ashok Kumar were having qualification of 10+2 with Science and Mathematics, they were given first preference and placed in the provisional panel. The applicants could not be placed in the panel being junior to the selected candidates. They have thus submitted that since panel was prepared in accordance with law, it calls for no interference. The same may accordingly be dismissed.
7. We have heard both the counsel and perused the pleadings as well.
8. Since counsel for the applicants has placed reliance on judgments given either by the High Court of Punjab & Haryana at Chandigarh or by this Tribunal, we perused those judgments and find that in the case of Subhash Chand Joshi and Others Vs. U.O.I. & Others decided on 4.4.2008 the petitioners therein were working as Electrical Signal Maintainer. A Circular was issued for selection to the post of Signal Inspector Grade-III against 20% intermediate quota. The applicants had also applied for the said post which was the selection post. The petitioners had challenged Rule 219 (j) of the Railway Manual which contemplates that the names of selected candidates should be arranged in order of seniority. The OA was dismissed by the Tribunal but Honble High Court did not find favour with the Tribunals order and it was observed by the Honble High Court that appointment to the post of Signal Inspector Grade-III is from three sources, i.e., direct recruitment, promotion and against 20% posts meant for intermediate quota. It was further observed that for 20% intermediate quota, the candidates are eligible from different sources. They are not necessarily from the same branch or in the same pay scale. Moreover in terms of Rule 215 of the Railway Manual, selection for promotion to a selection post is to be made primarily on merits. It was thus held that merit alone would be relevant for determining the right of promotion. In view of the above observations Rule 219 (g) of Railway Manual was struck down as there was no common seniority list on the basis of which persons from feeder cadre could have been considered. It was held that clause (j) is wholly illegal and arbitrary as the rule of seniority is sought to be introduced when there is none and when the promotion is to a selection post by a selection method on the basis of qualifying examination. Moreover, marks for seniority have been set aside by the Honble Supreme Court by holding it arbitrary in the case of N. Ramjayaram Vs. General Manager, South Central Railway and Others reported in 1996 (1) SC SLJ 536. Similarly in the case of Shri Nadeem Ahmed and Others Vs. U.O.I. & Others (OA No. 2108/2007) decided on 16.7.2009 the same issue was raised whether seniority can be the basis for deciding the final panel of promotion when the feeder cadre is from different categories. Relying on the judgment given by the Honble High Court of Punjab & Haryana at Chandigarh, this Tribunal also held that the respondents were indirectly trying to introduce an element of seniority even though there was no common seniority list in the feeder cadre. It was held that selections had to be done on the basis of merit only. The Railway Boards letter dated 16.11.1998 was struck down and the orders dated 7.11.2007 and 14.12.2007 in OA 2108/2007 and 421/2008 were also quashed and set aside. Respondents were directed to hold review DPC strictly in accordance with merit.
9. When counsel for the respondents was confronted with these judgments, he could not give any satisfactory reply. Counsel for the respondents submitted that seniority was one of the criteria mentioned in the Notification dated 3.7.2007. However, perusal of letter dated 3.7.2007, which is annexed at page 157, shows that there was no such mention that seniority would be the basis for consideration for promotion under LDCE. Since 25% posts were to be filled up by way of LDCE from different categories, namely, Gangman, Keyman and Mates who fulfilled the requirement as per the Notification and it has already been held by the Honble Courts as mentioned above that for preparing the final list seniority cannot be made the basis, we hold that the panel could not have been prepared by adding the marks given for seniority since it was LDCE and result has to be prepared on the basis of merit alone.
10. In view of above, the provisional panel dated September, 2008 is quashed and set aside. Respondents are directed to prepare a fresh panel on the basis of merit of the candidates without taking marks of seniority into consideration.
11. OA stands disposed of with the above directions. No order as to costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh