Central Administrative Tribunal - Delhi
Sarwar Ali vs Union Of India on 19 March, 2015
Central Administrative Tribunal Principal Bench New Delhi O.A.No.642/2014 Order Reserved on: 12.03.2015 Order pronounced on 19.03.2015 Honble Shri G. George Paracken, Member (J) Honble Shri V. N. Gaur, Member (A) Sarwar Ali S/o Late Ishtiyaq Ali R/o Chief Controller Railways, Agra, UP. Applicant (By Advocate: Shri Nitin Bhardwaj) Versus 1. Union of India Through its Secretary Ministry of Railways Rail Bhawan New Delhi. 2. The Chief Operating Manager Head Quarter Office Allahabad, U.P. 3. The General Manager (P) North Central Railways Head Quarter Officer Allahabad, U.P. Respondents (By Advocate: Shri S.P.Singh) O R D E R Mr. V. N. Gaur, Member (A):
The applicant in this OA has made the following prayer(s):
i) Pass an order to set aside the impugned order/direction dated 13.1.2014 & 23.01.2014 passed by Respondent No.3 directing the applicant to appear in written examination.
ii) Pass such other or further orders as may deem fit and proper in the facts and circumstances of the present case.
2. The background of the case in view is that the applicant was working as Deputy Train Controller in the scale of Rs.6500-10500 in October, 1990 and then he was promoted as Chief Train Controller on 12.06.1996 in the scale of Rs.7450-11500. On 21.04.2006, the Respondent No.3 issued a Circular for selection for promotion from Group `C to Group `B post of AOM against 70% quota vacancies. The applicant was not called in the written examination/viva voce, a part of the selection process, on the ground that his name did not figure in the seniority list of the officers in the grade of Rs.6500-10500 at that time. The applicant had earlier filed OA No.497/2006 when his name was not included in the seniority list of officers in the grade of Rs.6500-10500 published on 17.09.2005. That OA was disposed of by this Tribunal as premature with a direction to the respondents to dispose of the representation of the applicant. Later, when he was not called for participating in the selection process for Group `B post, the applicant filed OA No.1762/2006. During the pendency of that OA, the respondents issued provisional panel of employees promoted to the post of AOM against 70% quota vacancies, subject to the outcome of the OA No.1762/2006.
3. The applicant filed another OA No.723/2008, by withdrawing OA 1762/2006, seeking to set aside the order dated 27.02.2007 issued by Respondent No.3 by which his juniors were promoted and also quashed Para 203.4 of the Indian Railway Establishment Manual Vol.1 on the basis of which the impugned inter-se seniority list of 17.09.2005 was issued. This Tribunal in its order dated 05.12.2008 directed the respondents to consider the claim of the applicant and reckon him as senior compared to the candidates who were fell in the scale of Rs.6500-10500. The respondents approached the Honble High Court of Delhi against this order in Writ Petition No.10011/2009 which was dismissed on 18.07.2011. The SLP No.25753/2012 filed by the respondents against the order of the Honble High Court of Delhi was also dismissed by the Honble Supreme Court on 06.12.2013. Thereafter, the respondents with a view to implement this Tribunals order dated 5.12.2008 in OA No.723/2008, asked the applicant to appear in written test for selection to Group `B post of AOM/NCR vide order dated 23.01.2014. In the meantime, during the pendency of the above said SLP, the applicant had appeared in the Written Examination held on 17.12.2011 and viva voce for Group `B post and scored marks more than qualifying marks in the written, viva voce and records of service. However, he was not considered for appointment as, according to the respondents, he ranked lower in the seniority list as compared to the number of vacancies. The contention of the applicant is that since he had already qualified in the selection process for the Group `B post in 2011, he was not required to appear once again in another selection process for the same post which the respondents intend to carry out to implement the order of this Tribunal.
4. The learned counsel for the applicant submitted that it is an admitted position that the applicant had cleared the selection process for the Group `B post in the written examination/viva voce held in the year 2011. Referring to the stand taken by the respondents that his name was not placed in the panel, as his seniority position who was at Sl. No.12 against 5 unreserved vacancies, the learned counsel submitted that the question of seniority had already been gone into by this Tribunal and settled in its order dated 05.12.2008. It had been held that after being promoted to the scale of Rs.7450-11500, the applicant would be senior to all other officers in the scale of Rs.6500-10500. Therefore, it was not understood on what basis, the respondents concluded that the applicant was junior to all those whose names were included in the panel in the year 2011.
5. The learned counsel for the applicant has also placed reliance on the Judgement of the Honble Supreme Court in Indian Railway Service of Mechanical Engineers Association and Others v. Indian Railway Traffic Service Association and Another, 1993 Supp(4) SCC 473, in support of the applicants claim.
6. Referring to the rejoinder filed by the applicant, the learned counsel submitted that for written examination, viva voce and record of service the maximum marks allotted were 150, 25 and 25 respectively. The qualifying marks against these maximum marks were 90 & 30 (combined for viva voce and record of service including at least 15 marks in the record of service). The applicant had secured 97 marks in the written examination and 37.7 marks in viva voce and record of service, including 19.7 marks in the record of service.
7. The applicant was found fit for promotion but was denied the same by operating a faulty seniority list in violation of the order of this Tribunal and upheld by the Honble High Court. Now the applicant was being asked to appear once again in the selection process for promotion to the Group `B post, ostensibly to implement the order of this Tribunal dated 05.12.2008. This amounted to testing of suitability of the officer for the same post twice. He, therefore, prayed that the applicant should be considered for promotion on the basis of the orders of this Tribunal and the Honble High Court by taking into account the performance of the applicant in the examination held in 2011.
8. The learned counsel for the respondents, on the other hand, referring to the directions of this Tribunal in Order dated 05.12.2008, wherein the respondents were directed to conduct separate assessment of the claims of the applicant for consideration for promotion to the Group `B post, and accordingly, stated that the respondents had issued the impugned orders dated 13.01.2014 and 23.01.2014 calling the applicant for a fresh written test. He refuted the stand taken by the learned counsel for the applicant that the applicant had qualified the examination held in 2011, stating that he was not included in the panel of selected candidates as he was at Sl. No.12 and the vacancies were only 5. He also referred to the instructions contained in para 203.5 of the Indian Railway Establishment Manual, Volume 1 of 1989 Edition which provided that the date of appointment to the grade of Rs.6500-10500 (RSRP) on a non-fortuitous basis would be the criterion for fixing the seniority. The seniority of the applicant was fixed in accordance with those instructions and there was nothing wrong of that.
9. According to the learned counsel for the respondents, the applicant could not claim advantage of having qualified the selection test held in 2011 as that was not factually correct since his name was not included in the panel.
10. We have heard the learned counsels and perused the record.
11. The matter with regard to the seniority of the applicant, which became the ground for not selecting the applicant in the selection held in 2011, has already been adjudicated by this Tribunal in OA No.723/2008, which had been upheld by the Honble High Court of Delhi and the SLP, filed against that order, was also dismissed by the Honble Supreme Court. For ready reference, the relevant part of the order dated 05.12.2008, passed by this Tribunal in OA No.723/2008, is reproduced below:
8. Therefore, the selection leading to Annexure A-2 need not be disturbed but there should be separate assessment of the claims of the applicant for consideration for promotion to Group `B post to be held by Respondents 2 and 3. The selection process has to be completed within a period of three months from today and if the applicant is found fit to be included in the list, he should be given an appropriate place in the list reckoning him as senior to persons who were in the pay scale of Rs.6500-10,500. The O.A. is allowed. However, there will be no order as to costs.
12. The operative portion of the order of Honble High Court in WP (C) No.10011/2009 reads thus:-
23. In the totality of the facts and circumstances the pleas and contentions raised on behalf of the petitioners are rejected and the interim stay granted by this Court on 30th July, 2009 staying the operation of the order dated 5th December, 2008 passed in OA No.723 of 2008 is vacated and all the pending applications are disposed of. The petitioners shall comply with the direction given by the Tribunal by order dated 5th December, 2008 within three months. After consideration of the respondents for the post of AOM (Group B) in the pay scale of Rs.7500-12000/- if the respondent shall be found fit, he will be given an appropriate place in the seniority list in terms of the direction of the Tribunal. With these directions, the writ petition is disposed of. Considering the facts and circumstances, the parties are however, left to bear their own costs.
13. It is thus a settled position that the applicant, having been promoted to the grade of Rs.7450-11500, would be ranked senior to the officers in grade Rs.6500-10500 en-bloc.
14. The question that is to be answered is whether the applicant has to appear a fresh for assessing fitness for promotion to the Group `B post, once he has already appeared in such a test in 2011 and secured marks above the qualifying marks. In 2006, the applicant was not called to participate in the selection examination for the Group `B posts on the ground that his name did not appear in the seniority list of the officers in the grade of Rs.650010500, even though he was in the higher scale of Rs.7450-11500. Later, in 2011, he was allowed to participate in the selection process for Group `B posts and he secured qualifying marks in the written, viva voce and record of service. The respondents did not include his name in the panel on the ground that he was at Sl. No.12 while only 5 vacancies were available. The respondents had not contended that the applicant did not qualify in the written test/viva voce examination held in 2011. After Honble High Court of Delhi had passed the order in WP (C) No.10011/2009 on 18.07.2011, this ground would be no more valid. It is also obvious that had the respondents decided to implement the order of the Honble High Court, the selection test held on 17.12.2011 would have been a part of the action taken to implement the order of this Tribunal and the Honble High Court of Delhi. Again, had the respondents considered the applicant as senior to those in the grade of Rs.6500-10500, his name would have appeared in the panel prepared after the selection examination held in 2011. The respondents, therefore, cannot now take a view that because of their wrong action of not giving him the appropriate seniority and not including him in the panel, would imply that the applicant had not qualified in the selection/examination of 2011.
15. In our view, a selection examination is meant to test the suitability of the officers for appointment/promotion to a higher post. Once a person has cleared such an examination, there is no justification for asking him to appear in another examination simply because the respondents decided not to implement the order of the Tribunal and the Honble High Court, passed much before the selection examination.
16. In view of the foregoing discussion, we quash and set aside the letters dated 13.01.2014 and 23.01.2014 and direct the respondents to treat the applicant as having qualified the assessment for promotion to Group `B post on the basis of the performance in the examination held in 2011 and consider his appointment to Group `B post in terms of the orders of this Tribunal dated 05.12.2008 and Honble High Court of Delhi dated 18.07.2011. The respondents shall pass appropriate orders and communicate the same to the applicant, within a period of two months from the date of receipt of a copy of this order.
17. The OA is allowed in terms of the aforesaid directions. No costs.
(V. N. Gaur) (G. George Paracken) Member (A) Member (J) /nsnr/