Central Administrative Tribunal - Delhi
Shri Ram Rajiv vs Union Of India Through on 31 May, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
M.A. No. 2985/2011
OA No.3092/2009
M.A. No. 1127/2012
Reserved on:30.5.2012.
Pronounced on: 31.05.2012
Honble Mrs. Meera Chhibber, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
1. Shri Ram Rajiv,
S/o Shri Chand Ram,
Cabin Man,
Julana,
R/o Railway Quarter,
Julana.
2. Ishwar Singh,
S/o Dhir Singh,
Cabin Man,
Rohtak,
R/o Vill. Kainana,
Distt. Jind.
3. Wazir Singh,
S/o Sari Ram Singh,
Cabin Man,
Chirper,
Distt. Jind Teh. Julana,
R/o Vill. Lila,
Zafargarh.
4. Ghanshyam Sharma,
S/o Shiv Sahai Sharma,
Points Man,
Under SS/Gurgaon,
R/o H.No.1070/31,
Gali No. 3, Mahalaxmi Garden,
Gurgaon.
5. Jagan Nath,
S/o Khidru Ram,
Cabin Man,
Under CYM/Tughlakabad,
R/o H.No.22, Gali No.6-B,
Shakti Vihar,
Mithanpur Tanki Road.
6. Virender Singh,
S/o Kishan Singh,
Sr. Points Man,
Under CYM/Tughlakabad,
R/o H.No.22, Gali No.6-B,
Shakti Vihar,
Mithanpur Tanki Road.
7. Ashok Kumar Jaiswal,
S/o Shri Ram Lal Jaiswal,
Sr. Points Man,
Under CYM/New Delhi.
R/o T-4/A, Railway Colony,
Delhi Kishanganj.
8. Ram Dayal Pande,
S/o Shri Ram Sujel,
Cabin Man,
Under SS/Ghaziabad.
R/o 331/5, Railway Quarter,
Arya Nagar, Ghaziabad.
9. Dharam Vir Singh,
S/o Shri Hargyan Singh,
Sr. Points Man,
Under SS/Ghaziabad.
R/o 104/2, Sarvodya Nagar,
Ghaziabad.
10. Sohan Singh,
S/o Shri Ram Dayal,
Sr. Points Man,
Under SS/Ghaziabad.
R/o H.No.1284, Old Vijay Nagar,
Ghaziabad.
11. Jaipal Singh,
S/o Shri Gulab Singh,
Sr. Points Man,
Under SS/Kishanganj, Delhi.
R/o H.No.161/6,
Subzimandi Railway Colony,
Delhi.
12. Hari Om,
S/o Shri Duli Chand,
Points Man,
Under Sarai Rohilla, Delhi.
R/o T-51-F, Delhi Cantt.
13. Arjan Dev,
S/o Shri Howan Dass,
Points Man,
Under TI/KKDE.
R/o T-68-P,
Railway Loco Colony,
Kurukshetra.
14. Hari Prakash,
S/o Shri Roshan Lal,
Cabin Man,
Under SS/GHH,
R/o H.No.121, Vill.: Jhaksa,
Gurgaon.
15. Ram Kanwar,
S/o Shri Mehar Singh,
Cabin Man,
Under SR/Kantewala,
Bahadurgarh.
R/o Ashoka Colony,
Line Par, Bahadurgarh. ..Applicants
By Advocate : Mrs. Meenu Mainee with Shri B.S. Mainee.
Versus
Union of India through
1. Secretary,
Railway Board,
Ministry of Railways,
Rail Bhawan,
New Delhi.
2. General Manager,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi.
3. Divl. Railway Manager,
Northern Railway,
State Entry Road,
New Delhi.
4. Shri Dharamveer Meena,
Cabinman,
Tughlakabad Rly. Station,
New Delhi.
5. Shri Wakil,
Cabinman,
Railway Station
Shakurbasti,
Delhi.
6. Shri Gordhan,
Cabinman,
Railway Station
Karnal.
7. Shri Banarsi Das,
Cabinman,
Railway Station,
Narwana.
8. Shri Ashok Kumar,
Cabinman,
Railway Station Juliana.
9. Shri Saryuo,
Cabinman,
Bijwasan Rly. Station,
Bijwasan.
10. Shri Ombir,
Cabinman,
Railway Station,
Baman Heri.
11. Shri Balwan Singh,
Cabinman,
Railway Station,
Safidon.
12. Shri Prem Singh,
Sr. Pointsman,
Rly. Station Jakhal.
13. Shri Ram Dass,
Cabinman,
Jagadhari Workshop,
Jagadhar. ... Respondents.
By Advocate : Shri V.S.R. Krishna with Shri Rajinder Khatter.
O R D E R
Mrs. Meera Chhibber, Member (J) This OA was earlier dismissed by the Tribunal on the ground that those whose rights would be affected, in case OA was to be allowed, have not been impleaded and rights have already crystallized in their favour as selection was finalized in 2008, therefore, no adverse orders can be passed behind their back. However, applicants had approached Honble High Court of Delhi against the judgment of this Tribunal which was set aside by the Honble High Court of Delhi by giving liberty to the applicants to implead the affected parties by way of abandon caution with a direction to examine whether once the rule has been declared as unconstitutional and ultra vires, the benefits could not have been enured in favour of the persons, who have been the beneficiaries and secondly, the petitioners are otherwise entitled to the relief claimed. It is in these circumstances that the OA has now been placed before us.
2. Since earlier the OA was not decided on merits, it would be necessary to give the facts in order to appreciate the controversy. Applicants have filed this OA seeking a direction to the respondents to convene a review DPC and form the panel in accordance with the rules on the basis of merit and not on the basis of seniority. They have further sought direction to the respondent No.3 to take steps for de-reservation of the reserved posts and fill them up out of those general community candidates who had qualified the selection and carry forward the vacancies for the next selection year. The second relief as mentioned above and in para 8.2. was given up by the counsel for the applicants at the time of arguments today, i.e., 30.5.2012.
3. The brief facts as alleged by the applicants are, that Notification dated 24.10.2007 was issued by the respondents for selection to the psot of Goods Guards against 60% promotee quota from different categories (page 141). It is submitted by the counsel for the applicants that vide letter dated 10.3.2008 candidates were called for the written test (page 144). The result of written examination was declared on 2.7.2008 (page 22) wherein and all the applicants had qualified in the written test. However, when the final panel was issued on 22.12.2008 (page 22), the same was prepared as per seniority as a result of it, the applicants name did not figure in this panel. They have challenged this panel on the ground that once para 219 (j) of IREM had been nullified by the Bench of Punjab and Haryana High Court in the case of Subhash Chand Joshi Vs. Union of India and Others vide judgment dated 9.4.2008, panel could not have been prepared on the basis of seniority as laid down in para 219 (j). Learned counsel submitted since persons who were required to appear were from different streams, having different pay scales and did not have common seniority list, the result ought to have been prepared on the basis of merit and not on the basis of seniority. Reliance was also placed on the Full Bench judgment given by the Central Administrative Tribunal in the case of Bhramesh Kumar Gupta and Others vs. U.O.I. & Others decided on 4.1.2011 (OA No. 2765/2009) to buttress this preposition.
4. Respondents on the other hand have opposed this OA. They have stated that in response to general selection, applicants were called for various categories to fill up 125 vacancies of Goods Guard in the grade of Rs.4500-7000 as per the percentage quota from different categories. Since post of Goods Guard is a safety category, no relaxation in marks was admissible. They have admitted that all the applicants had qualified in the written test. They were duly considered by the DPC also but could not be placed on the panel as per prescribed quota for want of vacancies. They have stated that though no marks were given for the seniority, but panel was formed in the order of seniority.
5. They have further stated that instructions of Railway Board to prepare the panel as per merit was received in June, 2009 whereas panel had already been declared on 22.12.2008, therefore, the panel cannot be quashed on the ground that it ought to have been prepared on the basis of merit. They had thus prayed that the OA may be dismissed.
6. We had heard this matter on an earlier occasion but since the counter affidavit was not at all clear, we had given liberty to the respondents in the interest of justice to file an additional affidavit even at that belated stage to bring on record all those documents, which they wished to rely on, in support of their claim. Pursuant to our directions, respondents filed additional affidavit on 25.5.2012. In the additional affidavit, they have stated that all the applicants appeared in the selection in terms of the instructions dated 16.11.1998 which stipulated that final panel would be drawn up from amongst those securing 60% marks in the professional ability and 60% marks in the aggregate, in the order of seniority. Since the process was started in October, 2007, they were bound by the Railway Boards letter dated 16.11.1998. The effect of judgment given by the Bench of Punjab & Haryana High Court was communicated by the Railway Board vide letter dated 19.6.2009, therefore, this would not effect the selections which were already prepared in December, 2008. They have placed reliance on the judgment given by this Tribunal in the case of Shri Kailash Chand Gurjar Vs. U.O.I. & Others (OA No. 421/2008) decided on 11.8.2011 (page 160) and judgment of Honble Supreme Court in the case of State of Bihar Vs. Mithlesh Kumar reported in 2011 (1) SCC (L&S) page 403. In other words contention of the respondents is that since process was initiated, when Rule 219 (J) was very much in existence, therefore, they had to complete the process as per the said provision only.
7. We have heard both the counsel and perused the pleadings as well.
8. Perusal of Notification dated 24.10.2007 shows it was selection for the post of Goods Guard in the pay scale of Rs. 4500-7000 against 60% promotion quota. The persons who appeared in the selections were from different categories having different pay scales, as is evident from below:-
1. Train Clerks & Sr. Train Clerks Gr.3050-4590 22% Gr.4000-6000
2. Ticket Collector & Sr. TCRS Gr.3050-4590 5% Gr.4000-6000
3. Comml.Clerks & Sr. Comml.Clerks Gr.3200-4900 7% Gr.4000-6000
4. Shtg. Master Gr.4000-6000 12%
5. Cabinman Sr. Pointsman-cum- Gr.3050-4590 7% Shuntman LM Gr.4000-6000
6. Asstt. Guards (Not existing 7% in DLI Divn.).
It is relevant to note that the percentage of vacancies meant for each category was mentioned in this Notification, meaning thereby promotions could be made up to the extent as mentioned above.
9. From above, it is clear that the persons who could appear in the selections were from different categories, having different pay scales and they did not have any common seniority list as admitted by the counsel for the respondents. Admittedly, the procedure which was to be followed on 24.10.2007 for general selection was as laid down in para 219 (J) of IREM which reads as under:-
(J) The names of selected candidates should be arranged in order of seniority but those securing a total more than 80% marks will be classed as outstanding and placed in the panel appropriately in order of their seniority allowing them to supersede not more than 50% of total field of eligibility However, it is relevant to note that this para 219 (j) of IREM was subject matter of discussion before the Punjab and Haryana High Court in the case of Subash Chand Joshi in Writ Petition No. 4746-CAT of 2002. Honble High Court of Pubjab & Haryana quashed Rule 219 (j) by observing as follows:-
Clause (j) of Rule 219 of the Railway Manual contemplates that the names of selected candidates i.e., the candidates who have obtained more than 60% marks in the written test, are to be arranged in the order of seniority. As mentioned above, there is no common seniority list on the basis of which their names can be placed in seniority for promotion against 20% Intermediate Quota posts. Clause (j) is wholly illegal and arbitrary as the rule of seniority sought to be introduced when there is none and when the promotion is to a selection post by a selection method on merit in the qualifying examination. It is more so, marks for seniority having been set aside by the Honble Supreme Court as arbitrary. Therefore, for the same reason as weighed with the Honble Supreme Court in Ramjayarams case (supra), promotion against 20% Intermediate Quota posts is required to be made only on the basis of merit and uninfluenced by seniority of the candidates occupying the lower eligible cadre. Thus, the said Rule is set aside. As a consequence thereof, the impugned order passed by the Tribunal is unjustified.
Consequently, the impugned order passed by the Tribunal is set aside. The promotion of respondents No.5 to 8 is set aside and respondents No. 1 to 4 are directed to promote the petitioners to be post of Signal Inspector Grade-III from the same date when respondents No. 5 to 8 were promoted. However, the petitioners shall not be entitled to arrears of pay and allowances but the entire period shall be taken into consideration for the purposes of pay fixation etc. meaning thereby that para 219 (j) of the IREM was found to be illegal, arbitrary and was quashed on 9.4.2008, i.e., the date when the judgment was pronounced by the Honble High Court of Punjab and Haryana. The settled law is, that once a provision of law is held to be illegal, ultra vires and is set aside by the court of law, the effect would be as if it does not exist in the Statute from that day, therefore, from 9.4.2008 para 219 (j) of IREM was not in existence nor could it have been applied by the respondents for issuing the final panel.
10. In the instant case, it is relevant to note that the final panel was issued only on 22.12.2008 by which time para 219 (j) had already been declared illegal and ultra vires. The fact that selection was started on 24.10.2007 makes no difference because when the Notification was issued on 24.10.2007 or when the written test was held, para 219 (j) was not required to be referred to. Para 219 (j) was referred to, only at the time of issuing the final panel. As we have already noted above final panel was issued on 22.12.2008, on which date para 219 (j) was not in existence, therefore, respondents could not have prepared the panel in terms of para 219 (j) of the IREM. Merely because Railway Board issued a letter at a later stage would not make any difference because once a provision is struck down, it does not exist from that date. What is relevant is that on the day, when it was required to be referred to, it was not in existence, it having been held as illegal and arbitrary by a court of law, therefore, if the panel dated 22.12.2008 was prepared on the basis of para 219 (j), it cannot be sustained in law.
11. At this juncture it would be relevant to note that in para 4.9. and 4.10. applicants have made specific averments as follows:-
4.9. In accordance with the latest decision of the Honble Supreme Court as well as by this Honble Tribunal, in case of general selections where candidates from different categories are invited to appear, the final panel has to be declared as per merit without being influenced by seniority. Moreover, as per Railway Boards orders, those candidates who secure 80 or higher marks are declared Outstanding and can be allowed to supersede only 50% of the qualified candidates.
4.10. The aforesaid decision appears to have been violated by Respondent No.3 while declaring the panel. Although percentage of candidates to be selected as Guards is fixed for different categories, yet the final panel has to be formed on the basis of the merit of the qualified candidates without allotting any seniority marks. Therefore, all those candidates who have qualified the written examination, they have to secure 48 aggregate marks out of 80 to get a berth in the final panel and those who have been declared Outstanding cannot be placed on the top of the panel but they have to be allowed to supersede more than 50% the number of their seniors in the total field of eligibility of the candidates under consideration.
12. The respondents in counter to these paragraphs have stated as follows:-
In reply to para 4.9 it is submitted that this is general selection in which applicants were called for from eligible candidates from various categories. To fill up 125 vacancies of Goods/Guard Rs.4500-7000, the percentage quota from different categories.
The contents of para 4.10 is false and vehemently denied. It is submitted that as mentioned above the instructions from Rly. Board to prepare the panel as per merit were received on June 2009 and were to be followed prospectively whereas the above selection was finalized in the year 2008, it has been specifically mentioned in the said letter that selection finalized earlier need not be opened.
meaning thereby they have not disputed the fact that the panel had been prepared on the basis of seniority and not as per merit. They have only stated that Railway Boards letter was received in 2009 wherein it was clarified that the panel had to be prepared as per merit, therefore, earlier selections were to be made as per earlier procedure. Though respondents have referred to Railway Boards letter dated 16.11.1998 but even in the additional affidavit it has not been annexed, even though opportunity to file additional affidavit was given only for the purpose to place on record the documents which they wish to rely on. The Railway Boards letter stated to have been received in June, 2009 has also not been annexed by the respondents either in the counter affidavit or in the additional affidavit, therefore, we do not know the contents of those letters. However, the law on the subject is absolutely clear that once the provision of law is declared illegal or ultra vires, it has to be struck off from the Statute from the said date, as if it does not exist. Simply because the department has written a letter at a later date, it does not mean that the respondents could have resorted to a non-existent provision of law.
13. Since it is an admitted position that the panel dated 22.12.2008 was prepared as per seniority and admittedly there was no common seniority of the persons, who had appeared in the selection, the said panel cannot be sustained in the eyes of law. At this juncture, we would like to clarify that earlier applicants had not impleaded the persons who are likely to be affected but after the matter was remitted back, not only they were impleaded as a party but notices were also issued to them, which were reported to have been served by the counsel for the applicants. None of the private respondents have entered appearance or filed their counter affidavit. We have examined the contentions raised by the counsel for the respondents.
14. We would be failing in our duty, if we do not refer to the judgment relied upon by the learned counsel for the respondents. They have referred to the case of Shri Kailash Chand Gurjar Vs. U.O.I. & Others decided on 11.8.2011 (OA No. 421/2008) (page 160). Perusal of same shows applicants therein had challenged panel issued on 14.12.2007, which was stated to have been prepared in terms of Railway Boards letter dated 16.11.1998 read with para 219 (j) of IREM. The said OA was dismissed on 11.8.2011 by observing that the panel had already been prepared much before the judgment was rendered by the Pubjab & Haryana High Court in the case of Subhash Chand Joshi. This judgment, according to us, would not help the respondents at all because in that case panel was prepared before the judgment of Punjab and Haryana High Court had been pronounced whereas in the instant case, final panel was prepared on 22.12.2008 when Punjab & Haryana High Court judgment was already pronounced on 9.4.2008.
15. As far as the judgment of Honble Supreme Court, in the case of State of Bihar Vs. Mithlesh Kumar is concerned, it is relevant to note that in the said case it was held once selection process starts, it has to be held as per the norms and a selected candidate could not be denied right of appointment simply because the policy was changed after the selection process had taken place. This case does not deal with the situation like the one before us where the rule itself has been quashed by the court of law. It only states that the norms cannot be changed by the authorities after issuing the selection process. Here the norms have not been changed by the authorities but the rule has been quashed by a court of law, meaning thereby that from 9.4.2008 para 219 (j) of IREM was no longer available to the respondents for applying in the selection process, therefore, even this judgment would not come to the rescue of the respondents.
16. The sole point involved in this case is whether final panel which was issued on 22.12.2008 is liable to be quashed it having been prepared on the basis of seniority and not as per merit when persons from different categories with different pay scales, different seniority had appeared in the general selection. The Full Bench had dealt with this issue in the case of Bhramesh Kumar Gupta Vs. U.O.I. & Others decided on 4.1.2011 (OA No. 2765/2009). The question, which had arisen for consideration was whether promotion to the post of Loco Inspector by inviting applications from the grade of Loco Inspector (formerly driver) Goods, Senior Loco Pilot Passenger and Mail Loco Pilot, who have different scales of pay and different seniority lists, would be on the basis of seniority or on the basis of merit. After discussing all the judgments on the point, including that of Punjab & Haryana High Court, Full Bench of the Tribunal held as follows:-
In the light of the above discussion, we hold that the selection for the post of Loco Inspector is a 'General Selection' post and the selection from amongst the drivers of different trains has to be made on the basis of merit and seniority would have no consideration in this..
It is thus now settled view that promotions which are done by way of general selections from amongst different categories of persons having different pay scales and different seniority lists, the final panel cannot be prepared on the basis of seniority but it has to be prepared on the basis of merit only.
17. We are bound by the view expressed by the Full Bench of the Tribunal and Honble High of Punjab and Haryana. In the instant case since respondents have admitted that the final panel was prepared on the basis of seniority, we quash the said panel with a direction to the respondents to prepare the results again on the basis of merit keeping in view the percentage of vacancies available in each category as was mentioned by the Notification dated 24.10.2007 itself and then issue the final panel category-wise. This exercise should be completed within a period of 3 months from the date of receipt of a copy of this order. In the process, if some persons are affected, they should be given a show cause notice before taking any action against them. Till such time the exercise, as referred to above is undertaken, the private respondents shall not be disturbed and status quo as of today shall be maintained. In case, applicants are found to be above in the merit list as per the percentage of their respective category, necessary orders to that effect should be passed in their favour.
18. With the above directions, this OA stands disposed of. No order as to costs.
(Sudhir Kumar ) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh