Central Administrative Tribunal - Allahabad
Israrul Haq Ansari Son Of Late Shri A.H. ... vs Union Of India Through General Manager on 14 July, 2011
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD THIS THE 14th DAY OF July 2011 PRESENT Honble Mr. S.N Shukla, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) ORIGINAL APPLICATION NO. 1044 of 2010. Israrul Haq Ansari son of late Shri A.H. Ansari, Resident of 1160 G.T.B Nagar, Kareli Scheme, Allahabad. Applicant By Advocate : Shri Shesh Kumar Versus. 1. Union of India through General Manager, Northern Railway Baroda House, New Delhi. 2. The General Manager (P), Northern Railway, Baroda House, New Delhi. Respondents By Advocate: Shri A. Tripathi O R D E R
By Honble Mr. A.K. Bhardwaj, Member (J) As has been submitted by applicant, General Manager (P), Northern Railway had issued letter dated 18.6.1998 initiating selection process for promotion to the posts of Assistant Traffic Manager/Assistant Operating Manager (ADM/ADMO) i.e. Group B posts against 70% quota. The total number of posts in such category for which selection was initiated was 27 (U.R 22, SC 3 and S.T. 2). The applicant appeared in the written examination held for appointment by promotion on said posts on 25.7.1998. He qualified the written examination, thus was called for interview scheduled to be held on 29.10.1998.
2. It is contended by applicant that Shri Ram Pal, whose name appeared at Sl. NO.1 of the combined seniority list of Traffic Staff for Group B selection (Class II) did not appear in the written examination and Shri Harvindra Singh, who was at Sl. NO. 3 in the seniority list could not qualify in the written examination, thus it is clear that Shri Vinay Kumar Singh was only person, who was senior to applicant amongst the candidate called for interview vide letter dated 9.10.1998. In the list of candidates declared successful in the written examination, name of the applicant was at Sl. NO.11. The applicant appeared in the interview held for selection for promotion to Group B service in the Operating Branch of T(T) C Department against 70% quota. However, his name was not included in the final select list dated 30.11.1998.
3. Aggrieved by non-inclusion of his name in the said select list dated 30.11.1998, the applicant has filed the present Original Application, making the following payer:-
(i) That this Honble Central Administrative Tribunal may graciously be pleased to set aside and quash the order dated 26.8.2009 passed by the General Manager (P), Northern Railway, respondent NO.2.
(ii) Issue an order or direction in the nature mandamus directing the respondents to summon the record of selection process for the post of Assistant Operating Manager, which panel was declared on 30.11.1998 (Annexure No.A-10 to the Compilation -1 to this Original Application).
(iii) Issue an order or direction in the nature of mandamus directing the respondents to set aside the panel dated 30.11.1998 issued by the respondents (Annexure A-10) and to declare a fresh panel after including the name of applicant.
(iv) Any other and further order may be passed as this Honble Court may deem fit and proper, in the circumstances of the case.
(v) Cost of the present original application may also be awarded in favour of the applicant, as against the respondents.
4. In support of relief sought by applicant, he has contended that S/Shri Nathu Ram and R.S. Chauhan, who are much junior to him had been promoted to Group B service in Operating Department in the year 1992 itself and they have since been promoted as Divisional Operating Manager on adhoc basis vide order dated 8.10.1999. At the time of final hearing, the applicant materially argued that respondents should have awarded marks to the applicant for his seniority and once no credence is given to his seniority, in combined seniority list by awarding marks for the same, selection is vitiated. To substantiate said arguments, he has referred to para 219 (g) of Indian Railway Establishment Manual (Revised Edition) -1989. Said para reads as under:-
219 (g) Selection should be made primarily on the basis of overall merit, but for the guidance of Selection Board the factors to be taken into account and their relative weight are laid down below: -
[E(NG)I-69/PM 1-126 dt. 18.6.69] Maximum Marks Qualifying Marks
(i) Professional ability 50 30
(ii) Personality, Address, Leadership and Academic qualification 20
-
(iii) A record of service 15
-
(iv) Seniority 15
-
Note (i) The item record of service should also take into consideration the performance of the employee in essential Training Schools/Institutes apart from the examining CRs and other relevant records.
[E(NG)I-72/PM 1/192 dt. 27.6.73] Note (ii) Candidates must obtain a minimum of 60% marks in professional ability and 60% marks of the aggregate for being placed on the panel. In a few cases where both written and oral tests are held for adjudging the professional ability, the written test should not be of less than 35 marks and the candidates must secure 60% marks in written test for the purpose of being called in viva-voce test. Provided that 60% of the total of the marks prescribed for written examination and for seniority will also be the basis for calling candidates for viva-voce test instead of 60% of the marks for the written examination only.
5. Opposing the Original Application filed by the applicant, respondents have filed detailed counter reply. It is contended on behalf of the respondents that applicant failed to secure minimum requisite qualifying marks in record of service and viva voce test, thus in pursuance of instruction/procedure laid down in Railway Boards letter dated 20.8.1991 circulated under P.S No. 10493 his name could not be placed in the panel for selection to the post of Assistant Operating Manager against 70% quota of vacancies in Group B service in Operating Department. Dealing with the contention of the applicant regarding promotion of his junior in the year 1992, the respondents have contended that one of pre-requisite condition for interpolation of name in the earlier panel is that the person concerned should be selected for Group B service (A.O.M) and should have passed selection in first attempt. Thus when applicant had not qualified in the selection required to be clear for promotion to Group B service (A.O.M), his name could not be interpolated in the panel in which the name of S/Sri Nathuram and R.S Chauhan were included. It is stated by respondents in their counter reply that the representation made by the applicant against his non-selection to the post of Assistant Operating Manager was disposed of vide order dated 20.08.2009, which is placed on record as Annexure 1 to the counter reply. In response to the submission made by the applicant that in the selection in question he should have been awarded marks for his high seniority position, respondents have stated that for placement in the panel, a candidate has to secure minimum requisite qualifying marks 60% in the written test and 60% marks in the record of service and viva-voce (including at least 15 marks out of 25 marks in the record of service). This requirement of selection is contained in Railway Boards letter dated 20.08.1991 circulated under P.S 10493. Paras 20 to 22 of the counter reply filed by respondents reads as under:-
20. That, the contents of paragraph NO.4.22 of the Original Application are denied. It is however further submitted that the panel of 70% is formed on the basis of seniority. For placement in the panel, the candidate has to secure minimum requisite qualifying 60% in the written test and 60% marks in the record of service and viva voce (including at least 15 marks out of 25 marks in the record of service) which is as per instructions contained in Railway Boards letter dated 20.08.1991 circulated under P.S. No. 10493.
21. That, the contents of paragraph No. 4.23 of the Original Application are denied. It is however further submitted that these instructions are applicable in case of selection of non-gazetted selection. There is no provision of allotting marks for seniority in selection from Group C to Group B as per Railway Boards letter No. E(GP)88/2/111 dated 20.08.1991. The marks for Group B selection are prescribed as under:-
Max. Marks Qualifying marks
(a) Professional subject 150 90
(b) Viva voce 25 30 (including at least 15 marks in the Record of Service)
(c) Record of Service 25
22. That, in reply to the contents of paragraph no. 4.24 of the Original Application are admitted. It is however further submitted that the applicant has secured 60% marks in the written test but failed to secure minimum requisite qualifying marks in record of service and viva voce test and could not secure 60% marks in Aggregate.
6. In para 37 of the counter reply, respondents specifically stated that there is no provision of allotting marks for seniority in selection from Group C to Group B. Said para 37 of the reply read as under:-
37. That, the contents of paragraph no. 4.41 of the Original Application are not admitted. It is however further submitted that as already stated in the preceding paragraphs, there is no provision of allotting marks for seniority in selection from Group C to Group B posts as per Railway Boards letter No. E(GP)88/2/111 dated 20.8.1991. The marks for Group B selection are prescribed as under:-
Max. Marks Qualifying marks
(a) Professional subject 150 90
(b) Viva voce 25 30 (including at least 15 marks in the Record of Service)
(c) Record of Service 25
7. Reliance is also placed by the respondents on para 204.1 of I.R.E.M. It is contended on behalf of the respondents that procedure for selection in question is regulated by said para 204.1 and not by 209 (g) of the same. A perusal of said para 204.1 of I.R.E.M reveal that no marks are prescribed for seniority in selection in Group B post. Para 204.1 of I.R.E.M read as under:-
204.1 Selection Procedure The selection is based on a written test to adjudge the professional ability, viva-voca and assessment of records by the Selection Committee. The marks allotted and the qualifying marks under the different head are as follows: -
Maximum Marks Qualifying marks
(i) Professional ability 50 30
(ii) Personality, Address, Leadership & Academic technical qualifications 25 15
(iii) Record of service 25 15 100 60 In respect of Accounts-department the marks allotted and qualifying marks are as follows :-
Maximum Marks Qualifying marks
(i) Professional ability Written Test Viva-voce 25 25 30
(ii) Record of service 25 15
(iii) Personality, Address, Leadership & Academic technical qualifications 25 15 100 60
8. We have heard learned counsel for the parties and perused the record. From the provision of I.R.E.M, it is found that it is para 204 (1) which regulate the selection procedure for promotion to Group B post and para 219 (g) regulate the procedure for promotion of Group C staff. In para 204.1 there is no promotion for assigning marks for seniority in selection to vacancy in Group B post.
9. We have also gone through the service particulars of the candidates appeared in the Viva voce test for Assistant Operating Manager (A.O.M) Group B i.e. the post in question. A perusal of record reveals that in viva voce, the applicant had secured only 12 marks i.e. less than 60%.
10. It is seen from the record that minimum marks secured by qualified candidate in Professionality/Record of Service/Viva Voce is under 122 while marks secured by the applicant is 117.
11. Thus as far as applicant is concerned, no injustice has been caused to him. Number of vacancies are limited and same were to be filled up by way of selection. Thus the candidates who stood high in the merit on the basis of marks awarded for professionality/record of service/viva voce are included in the select list.
12. In the case of Dr. Krushna Chandra Sahu and Ors. Vs. State of Orissa and Ors.: 1995 (7) J.T 137, Honble Supreme Court ruled that selection can be interfered with only when same is illegal or there is material irregularity in the Constitution of the Committee or in its procedure or there is proved malafides affecting the selection. In the present case, we do not find the selection vitiated by any of such element.
13. In the case of M. Ramjayaram Vs. General Manager, South Central Railway and Ors. : 1996 (2) JT 463, the applicant had secured higher marks in the written and viva voce test, but by giving 15 marks to respondents over the appellant for their seniority and higher pay scale, South Central Railway had selected the said respondents and not the appellant. Honble Supreme Court did not approve the action of the respondents of awarding 15 marks for seniority and higher pay scale and declared non selection of appellant as arbitrary.
14. In the case of Secretary (Health), Department of Health Vs. Dr. Anita Puri and Ors: 1996 (8) JT 130, Honble Supreme Court categorically ruled that when selection is made by an expert body like Public Service Commission having technical experience and higher academic qualification in the field for which the selection is to be made, the Tribunal should be slow to interfere with the opinion expressed by experts unless allegations of malafide are made and established.
15. In the case of All India State Bank Officers Federation and Ors. Vs. Union of India and Ors. : 1996 (8) JT 550. Honble Supreme Court ruled that it is always for the employer to see how to promote and utilize the best talent available in the organization.
16. In the case of Union of India and Anr. Vs. Samar Singh and Ors. : 1996 (6) SLR 732. Honble Supreme Court ruled that power of judicial review of selection is limited.
17. In the case of Anil Katiyar (Mrs). Vs. Union of India and Ors.: 1996 (10) JT 768. Honble Supreme Court again ruled that unless the selection is assailed as being vitiated by malafides or on the ground of it being arbitrary, Tribunal cannot sit in judgment over the selection made by the D.P.C.
18. In the case of Kanwar Singh Vs. State of Haryana and Ors. 1997 (3) JT 732, non selection of candidate on account of lower marks obtained by him in the interview was found in order. Thus the scope of interference with selection by this Tribunal is very limited.
19. In view of aforementioned, we do not find any ground to interfere with the impugned selection and dismiss the O.A. However, we find that in para 20 of the counter reply respondents have stated that candidate has to secure minimum requisite qualifying marks i.e. 60% in record of service and viva-voce (including at least 15 marks out of 25 marks in the record of service). A perusal of record reveal that one Shri Bhagwati Prasad, who is at Sl. NO. 23 of the service particulars of the candidate contained detail marks had secured only 13 marks in viva voce, but he is declared as passed. Similarly, the candidates at Sl. NO. 15,16 and 17 of said list of service particulars of candidates also secured 13, 12 and 12 marks in viva voce 60% marks of 25 is 15. Thus, obviously, the said candidate had not secured 60% marks in viva voce. Therefore, it is observed that respondents should examine their record and reconcile the position i.e. averment made by them in para 20 of their reply and factual position reflected from the record. It goes without saying that outcome of Reconciliation Exercise would be intimated to the applicant. No costs.
Original record be returned to the respondents.
Member (J) Member (A)
Manish/-
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