Central Administrative Tribunal - Delhi
Bhramesh Kumar Gupta vs Union Of India Through The General ... on 4 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2765/2009 New Delhi this the 4th day of January, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Honble Smt. Meera Chhibber, Member (J) 1. Bhramesh Kumar Gupta, S/o Sh. Ramesh Chand, r/o Q. No. 2/7, Railway Colony, Kishan Ganj, Delhi-7. 2. Prem Chand Gupta S/o Sh. Mata Deen Gupta, r/o H.No. 22/16, Railway Colony, Delhi. 3. Vijendra Singh S/o Sh. Mahlader Singh, r/o P-222, Sector 123, Pratap Vihar, Ghaziabad (UP). 4. Mahender Kumar Meena S/o Sh. Surbyani Ram, r/o D-310, Shiv Durga Vihar, Near Suraj Kund, Faridabad. 5. Vinod Kumar, S/o Sh. Beeta Singh, r/o F-235, Sec. 9, New Vijay Nagar, Ghaziabad (UP). Applicants ( By Advocate Shri Yogesh Sharma ) VERSUS 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Delhi DN., State Entry Road, New Delhi. 3. Divisional Personnel Officer, Divisional Railway Managers, Northern Railway, Delhi DN., State Entry Road, New Delhi. 4. Sh. Dharam Singh Negi, Working as Sr. Loco Pilot Goods, N.Rly. Station, Tugalakabad, Delhi. 5. Sh. Dinesh Kumar, Working as Sr. Loco Pilot Goods, N.Rly. Station Tugalakabad, Delhi. 6. Sh. Gaya Parshad Moraya, Working as Sr. Loco Pilot Goods, N. Rly. Station Ghziabad. 7. Sh. Rajinder Singh Rauthen, Working as Sr. Loco Pilot Goods, N. Rly. Station Tugalakabad, Delhi. 8. Sh. Surinder Pal Singh, Working as Sr. Loco Pilot Goods, N. Rly. Station, Ghaziabad. 9. Sh. Ashok Kumar Dua, Working as Sr. Loco Pilot Goods, N. Rly. Station Ghaziabad. 10. Sh. Sunil Kumar, Working as Sr. Loco Pilot Goods, N.Rly. Station, Panipat (Har.) 11. Sh.Harish Kumariyan, Working as Sr. Loco Pilot Goods, N. Rly., Station, Delhi. 12. Sh. Yadvinder Singh, Working as Sr. Loco Pilot Goods, N. Rly Station, Ghaziabad (UP). 13. Sh. Subhash Chand, Working as Sr. Loco Pilot Goods, N. Rly Station, Sakurbasti, Delhi. 14. Sh. S.Z. Ali Rizvi, Working as Sr. Loco Pilot Goods, N. Rly. Station, Ghaziabad. Respondents ( By Advocate Shri Shailender Tiwari for official respondents and Shri B.S. Mainee with Ms. Meenu Mainee for pvt. respondents 4 to 14 ) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The question, which has arisen for consideration in this reference to the Full Bench, is whether promotion to the post of Loco Inspector, by inviting applications from the grade of Loco Pilot (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. In other words whether the promotion to the post of Loco Inspector is through 'normal channel selection' or through 'General Selection' in accordance with the paragraph 219 of the Indian Railway Establishment Manual (IREM), Volume (1) modified from time to time along with other relevant circulars and judicial pronouncement on the subject. A related issue placed before us is whether the issuance of notification about the post of Loco Inspector being 'General Selection' post, midway through the process of selection, would vitiate the process of selection itself.
2. A narration of facts and circumstances which gave rise to the reference is necessary. The Applicants in the OA are Senior Loco Pilot Passenger, Loco Pilot Passenger, Loco pilot Mail and Loco Pilot Goods. The Divisional Railway Manager (DRM), Northern Railway, the second Respondent herein, invited applications for selection to the post of Loco inspector by a circular dated 07.07.2008, which, inter alia, read thus:
It has been decided to hold a selection for the post of Loco Inspector for 46 vacancies (UR 24 SC 13, ST 9). In terms of P.S. No. 12527 Goods/Sr. Goods Driver, Passenger/Sr. Passenger Drivers and Mail/Express Drivers having a minimum combined three years footplate experience as Goods/Sr. Goods Driver. Passenger/Sr. Passenger Drivers/Mail/Express Drivers are eligible to apply for the post of Loco Inspectors, besides this in terms of PS No.13242 medically decategorised Drivers upto the level of A-3 subject to the conditions mentioned in terms of PS No. 12327 are also eligible to apply for the post of Loco Inspector, hence applications amongst the Drivers who fulfil the terms and conditions mentioned in above mentioned PS No. 12527 & 13242 may apply. The result of the written test was declared on 21.07.2009, in which the Applicants were successful. Out of 185 candidates, who participated in the tests, 38 candidates, including the Applicants, were declared successful. However, the final panel was not issued till 03.09.2009, when the circular of even date on the subject of "Implementation of recommendations of 6th CPC-Merger of grades-Revised classification and mode of filling up of non- gazetted posts" was issued. The post of Loco Inspector was renamed as Assistant Loco Inspector and placed in Pay Band 2 with grade pay of Rs.4200/-. The post of Loco Inspector (renamed Assistant Loco Inspector), which earlier also had to be filled up hundred per cent by promotion by the method of selection, was declared to be General Selection post to be filled up cent per cent by promotion. The panel of selected candidates was declared on 22.09.2009, where the selected candidates were placed serially on the basis of merit and not seniority. This order dated 22.09.2009 has been impugned in the OA before us. The Applicants were not successful in the final panel, being lower in merit than the candidates placed in the above said panel.
3. An identical matter had come up before the Mumbai Bench of this Tribunal in OA number 156/2010, Krishnakumar Kanhaiyalal and others V. Union of India and others and six other related OAs. The applicants in these OAs were challenging the selection for the post of Loco Inspector from various grades of Loco Pilots by applying the criteria of General Selection. The learned Bench allowed the Original Applications by making the following observations:
However, in the present case in hand, all the applicants belong to the same cadre, that of Loco Pilot goods/passenger/Mail/Express Drivers. Therefore, there cannot be any further classification of train drivers based only on their driving different types of trains. No nexus with any ostensible object to be achieved by such an artificial classification is brought on record by the Respondents. It is also not the case of the Respondents that the Assistant Train Drivers or Drivers at the entry level are differentiated on the basis of their qualification or their mode of selection is different for being considered and selected as Loco Pilot/train drivers. All the train drivers, therefore, sail in the same boat. They belong to one class of train running staff. The VIth Central Pay Commission has brought them at par in the matter of pay scale except a minor variation in risk allowance.
28. In view of the above discussion on law and fact, all the seven OAs. stand allowed in terms of prayers contained in para 8 thereof. The respondents are directed to complete and finalise the selection process in question within a period of 3 months from the date of receipt of a copy of this order in accordance with the first notification dated 02.01.2009. No order as to costs. The Honourable Punjab and Haryana High Court had taken a different view altogether in Writ Petition (C) number 4746-CAT of 2002, decided on 09.04.2008 in the matter of Subhash Chand Joshi V. Union of India and others, in which the same issue was involved by, inter alia, placing reliance on the judgement of the Honourable Supreme Court in M Ramjayaram V. General Manager, South Central Railway and others, arising out of Civil Appeal number 5085 of 1996 decided on 15.03.1996. The learned Mumbai Bench had considered both the judgments in Krishnakumar Kanhaiyalal (supra), cited above, and distinguished these in its judgement. A coordinate Bench of this Tribunal had decided in OA number 2108 of 2007, Nadeem Ahmad V. Union of India and others and in another OA number 421 of 2008, Shri Kailash Chand Gujjar V. Union of India and others in the cases of selection for the post of Technician Grade III and Junior Engineer Grade II respectively that when the participating candidates were from different categories and there was no common seniority list, the selection is to be made on the basis of merit and the element of seniority could not be introduced for selection. In another OA number 2377 of 2008, Komal Prasad V. Union of India and others, decided on 05.03.2010, an identical issue arose in the selection of Senior Permanent Way Supervisor from among Gangman, Keyman and Bungalow Peon. The learned DB, following the judgement of the Honourable Supreme Court in M Ramjayaram (supra), held that for preparing the final list of selected candidates, seniority could not be made the basis and the list had to be based only on merit. The matter is thus before us for consideration in the light of the conflicting decision of the Mumbai Bench, taking a different view from the cases cited above.
4. The case of the Applicants is that there was no mention in the notification dated 07.07.2008, calling for applications for the post of Loco Inspector, that the said post was to be filled up by 'General Selection'. The stipulation that the post will be included in the category of 'General Selection' posts was introduced only by the circular dated 03.09.2009. Our attention has been drawn to the definition of the 'General Selection' posts, given in paragraph 219 (i) of the IREM, Volume I, which is extracted below:
"(i) For general posts i.e. those outside the normal channel of promotion for which candidates are called from different categories, whether in the same Department or from different departments, the selection procedure should be as under:
All eligible staff irrespective of the Department in which they may be working, who satisfy the prescribed conditions of eligibility and volunteer for the post should be subjected to a selection which should contain of both written test and viva voce test.".
It was argued that candidates from different departments and grades were not called for the selection for the post of Loco Inspector. Only the persons from the category of drivers were called for the selection, from the same Department and even from the same division. The 'General Selection' posts are outside the normal channel of promotion for which candidates are called from different departments. According to the learned counsel for the Applicants, this was the touchstone for deciding whether the post was to be filled up on the basis of seniority subject to fitness or on the basis of merit. The learned counsel would also rely on the judgement of the Punjab and Haryana High Court in Subhash Chand Joshi (supra) by adverting to the following paragraph from the judgement:
"The appointment to the post of Signal Inspector Grade-II is from three sources i.e. direct recruitment, promotion and against 20% posts through Intermediate quota. For direct recruitment posts there is no dispute. The promotions are to be made from the feeder cadre of the post of Signal Inspector Grade-III. The rule of seniority would be relevant for the employees who fall in the same channel of promotion."
The argument is that the post of Loco Inspector is in the channel of promotion of the Loco Pilot (erstwhile driver) and, following the judgement in Subhash Chand Joshi, it had to be made by following the principles of seniority and not merit. The learned counsel would point out with great emphasis that the Honourable Punjab and Haryana High Court has clearly held that the principle of merit had to be followed for the Intermediate quota because in that case candidates from different sources, who are not necessarily from the same branch or in the same pay scale have been called for selection. It is reiterated that the category of driver is one and only the experience on the post of driver is relevant for selection to the post of Loco Inspector. He would further contend that the trains have been classified according to their speeds and the drivers of the different trains have been given different nomenclature, on the basis of the length of their experience and seniority. He would submit that learned Mumbai Bench correctly held that there cannot be a classification of drivers on the basis of their driving different types of trains. The learned counsel for the Applicants would contend that the Mumbai Bench, while deciding the case of Krishankumar Kanhaiyalal (supra), was not oblivious of the judgements of the Honourable Punjab and Haryana High Court and the Honourable Supreme Court, as both the judgements in Subhash Chand Joshi and M Ramjayaram had been discussed in detail in paragraph 25, 26 and 27 of the judgement of the Mumbai Bench and distinguished on facts. Reliance has also been placed on the judgements in OA number 1958 of 2004, Krishan Kumar V. Union of India and others decided on 02.02.2007 and OA number 71 of 2003, Bharat Lal and another V. Union of India and others decided on 14.09.2004. The facts in Krishan Kumar (supra) were that the notification was issued by the respondents on 11.11.2002 for selection for the post of JE-II C&W against 25% quota for promotees. The candidates were called from the categories of Artisans Grades I and II, including Master Craftsman (MCM) grade with three years of service as on 30.10.2002 working in C&W Depots of Delhi Division. The Tribunal noted in this case that the candidates called to fill up these posts were called only from one cadre of Artisans. The candidates from other departments such as the Commercial Department or Catering Department were not called. It was, therefore, inferred by the learned Bench that the selection was only from one category of Artisans, for which the selection could not be carried out in accordance with the procedure for 'General Selection' posts. The learned counsel would contend that in the instant case also the candidates had been called only from the common category of drivers and on the analogy of the Artisans Grade I and II and MCM being considered from common category, the judgement in the above cited OA would apply to the facts of the instant OA also. The facts in Bharat Lal (supra) were that applications have been called for selection for the post of Goods Guard for which the candidates belonging to the following categories would apply:
"(i) Trains Clerk/Senior Trains Clerks.
(ii) Ticket Collector/Senior Ticket Collector.
(iii) Commercial Clerk/Senior Commercial Clerk.
(iv) Switchman/Assistant Guard/Senior Assistant Guard and persons employed in the yard in the scale of pay off Rs.3050-4590/3200-4500/4000-6000."
The applicants in the said OA were engaged as Points Man and Cabin Man in the scale of Rs.4000-6000 and fulfilled the eligibility conditions for the notified posts. The ground for assailing the selection was that the post of Goods Guard was a 'General Selection' post and there should have been no consideration of seniority in the selection. The Tribunal held that seniority could not have been considered for selection to the post of Goods Guard. The learned counsel for the Applicants would contend that the criteria of 'General Selection' can be applied only in the circumstances mentioned in the cited case, where persons from diverse backgrounds have been called to participate in the selection and it was this diversity, which would put the selection in the category of 'General Selection'. He would contend that in the case in hand there was only one category of driver, which could not be considered to be comprising several categories as held in the case of Artisans in Krishan Kumar (supra). He would contend that prior to the year 2009 the procedure to be followed was as prescribed in paragraph 219 (ii) of IREM, which reads thus:
(ii) Candidates must obtain a minimum of 30 marks in professional ability and 60% marks of the aggregate for being placed on the panel. 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. This procedure is also applicable for filling up of general posts. 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. Advertence has also been made to the Railway Board's circular dated 19.06.2009, in which it has been clarified, following the judgement of the Honourable Supreme Court in M Ramjayaram (supra), that seniority should not be a consideration for filling up the 'General Selection' posts. The learned counsel would contend that the post of Loco Inspector became a 'General Selection' post only after the circular dated 03.09.2009 was issued. He would contend that prior to the circular, the post was categorised as normal channel of promotion post.
5. The Respondents, on the other hand, contend that the procedure in respect of selection for the normal channel is prescribed in paragraph 215 of the IREM and for 'General Selection' posts in paragraph 219 (i), ibid. it was contended that in the normal channel of promotion posts, candidates had to be from the same seniority list. The normal channel of promotion is from one grade to another grade, where the each grade is characterised by the seniority list comprising the persons in that particular grade. It was argued that there were different seniority lists for each category of Loco Pilots. The learned counsel for the Applicant also conceded at this point that there was no common seniority list of Loco Pilots. There were separate seniority list for Loco Pilot Goods, Loco Pilot Passenger and Loco Pilot Mail et cetera. It was argued that there was no channel of promotion from, for example, Loco Pilot Goods to Loco Inspector. Had the post of Loco Inspector been a post of normal channel of promotion post, only the drivers of Mail/Express would have been eligible for promotion to the said post. The Respondents would also contend that all previous selections for the post of Loco Inspector were conducted as per the procedure prescribed for 'General Selection' posts. However, the final panel was arranged in order of seniority. Such selections were challenged before the Courts. The issue was settled in Subhash Chand Joshi (supra) by the Honourable Punjab and Haryana High Court, which was upheld by the Honourable Supreme Court in SLP number 16774/2008. The official Respondents would contend that the judgement of the learned Mumbai Bench was erroneous in law as well as in facts and the Respondents proposed to challenge the same before the High Court. It was contended that the learned Mumbai Bench proceeded on the wrong assumption that the Loco Pilot Goods, Loco Pilot Passenger, Loco Pilot Express and Loco Pilot Mail belonged to the same cadre and there was a common seniority list of all these categories of Loco Pilots. It was contended that even after the merger on the recommendations of the VI Central Pay Commission, separate seniority lists were being maintained and additional allowances were being paid to the drivers of Express and Mail Trains. A copy of order in this regard has been placed at page 204 of the paper book. It was further contended that the learned Mumbai Bench had fallen in error in directing that the panel should be prepared on the basis of pre-revised Rule 219 (j) of IREM, which had already been held to be illegal by the Honourable Punjab and Haryana High Court. The Rule 219 (j) has been extracted below:
(j) The names of selected candidates should be arranged in order of seniority but those securing a total of 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. It was contended that the ratio laid down by the Honourable Punjab and Haryana High Court and upheld by the Honourable Supreme Court would apply retrospectively. The circular dated 19.06.2009 was also issued in the light of the judgement of the Honourable Supreme Court in M Ramjayaram (supra) and the judgement in Subhash Chand Joshi (supra). The circular dated 19.06.2009 is reproduced below:
As the Railways are aware, in pursuance of Honble Apex Courts judgment dt. 15.03.1996, in M. Ramjayram Vs. General Manager, South Central Railway and others, 1996 (1) SC SLJ 536, it was held that it is illegal to award marks for Seniority, for promotion to General Posts, i.e., those outside the normal channel of promotion, for which eligible volunteers are called from different categories whether in the same department, or, from different departments, Board vide their letter No. E (NG)1-98/PM1/11, dt. 16.11.1998, had modified the Selection Procedure to such General posts. These instructions are contained in para 219 (j) of Indian Railway Establishment Manual (IREM), Vol.1, 1989, as amended from time to time. In terms of instructions contained in clause (iii) below para 219 (j), final panel in such cases, is required to be drawn up in the order of seniority from amongst those who secure a minimum of 60% marks in professional ability and 60 % marks in the aggregate, provided that those securing a total of 80%, or, more marks, are classed as Outstanding and placed at the top of the panel, in the order of seniority. Besides above provisions, separate instructions prescribing different methods for placement of names on panel, in a few categories, viz., LDCE quota in the category of Sr. Clerks (Rs.4500-7000), Commercial/Traffic Apprentices (Rs.5500-9000), for induction of Intermediate Apprentices for eventual absorption as JE-II (Rs.5000-8000) in various technical departments, qualified staff quota in the category of Skilled Artisans Gr. III (Rs.3050-4590) in various engineering departments, LDCE quota in the categories of Office Superintendent & all ( Rs.5500-9000) and Staff & Welfare Inspectors Gr. I ( Rs.6500-10500) etc., have also been issued.
2. The instructions regarding formation of panel in the order of seniority, have been under challenge before various Courts/tribunals for granting relief in terms of placement of names on panel in the order of merit based on the marks obtained in such General Selections. The provision of placement of names on final panel in the order of seniority, as indicated above, has been struck down by High Court/Punjab & Haryana, in Writ Petition No. 4746/2002 vide judgment dt.09.04.2008. High Court have, inter- alia, held that, since in such General Selection, candidates are not from the same seniority units and there is no common seniority list on the basis of which their names can be placed in the order of seniority, therefore, promotion to such posts should be made only on the basis of merit, uninfluenced by seniority of the candidates. The Honble High Court have accordingly declared the provision of arranging the names on final panel in the order of seniority in General Selections as wholly illegal and arbitrary and set aside the same. The Special Leave Petition No.16774/2008 filed before the Honble Supreme Court against the High Courts order above-mentioned judgment, has also been dismissed on 05.01.2009.
3. The matter has, accordingly been carefully considered by the Board and it has been decided that in cases of promotion to General Posts in which candidates are called from different categories, whether in the same department or from different departments and where zone of consideration, is not confined to three times the number of staff to be empanelled, panels should be strictly prepared as per merit, with reference to marks obtained by the candidates in Professional ability and Record of Service, subject to usual relaxation for SC/ST staff, wherever permissible, those securing less than 60% in Professional ability and 60% in aggregate, will not be considered eligible for inclusion in the panel. Further, the service records of only those candidates who secure a minimum of 60% marks in Professional ability, shall be assessed. Since the final panel has to be drawn on the basis of merit, there will be no scope for erstwhile provision of placement of candidates who secure 80% or more marks, classified as Outstanding, on the top of the panel.
3.1. These instructions will supersede all previous instructions, as far as the same relate to the provision of arranging names on the final panel in the order of seniority, for promotion to General Posts. However, all other conditions, as contained in the specific instructions for a particular category, shall continue to hold good.
3.2 These instructions shall be applicable with immediate effect, i.e., from the date of issue of these orders, to all panels for promotion to General Posts. Any previous selection panel drawn up otherwise, before issue of this letter, need not be reopened.
6. We have carefully perused the judgements of the learned Mumbai Bench. The issue before the Mumbai Bench was identical as in the OA in hand. The Mumbai Bench observed in paragraph 19 that:
"It is thus evident that only loco (train) drivers are eligible to be considered for promotion to the post of Loco Inspector in question. It is, therefore, not be general post open to various other categories in the Railways."
We have already quoted the conclusion drawn by the learned Mumbai Bench in paragraph 27 of its judgement. The judgement is premised on the assumption that all categories of Loco Pilots belong to one class. Learned Mumbai Benchs observation that all drivers sail in the same boat, apart from being a case of mixed metaphor, in our considered opinion this assumption is erroneous also because the Loco Pilots of Goods, Passenger, Express and Mail trains form different cadres because each one of those categories has a separate seniority list and there is differentiation in the scales of pay before the VI CPC and emoluments after the VI CPC also because of payment of additional allowance. In Union of India V. Pushpa Rani and others, (2008) 9 SCC 242, it was held that:
22. A conjoint reading of paragraph 103(7) of the Code, 103(iii) of the Railway Establishment Manual and Circular R.B.E. No.113/97 makes it clear that in the Railways, the term cadre generally denotes the strength of a service or a part of a service sanctioned as a separate unit. However, for the purpose of roster, a wider meaning has been given to the said term so as to take within its fold the posts sanctioned in different grades. The reason for giving this enlarged meaning to the term "cadre" is that posts in the railway establishment are sanctioned with reference to grades. Even temporary, work charged, supernumerary and shadow posts created in different grades can constitute part of the cadre.
23. In the service jurisprudence which has developed in our country, no fixed meaning has been ascribed to the term "cadre". In different service rules framed under proviso to Article 309 of the Constitution as also rules framed in exercise of the powers of delegated legislation, the word "cadre" has been given different meaning.
24. In A.K. Subraman v. Union of India a three-Judge Bench of this Court while interpreting the provisions contained in Central Engineering Service, Class I, Recruitment Rules, 1954, observed as under: (SCC p.328, para 20) "20. The word grade has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts."
25. In Dr. Chakradhar Paswan (Dr.) v. State of Bihar it was observed as under: (SCC pp.215-16) "In service jurisprudence, the term `cadre' has a definite legal connotation. It is not synonymous with `service'. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the Service. The first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homoeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. Therefore, for the first vacancy of the Deputy Director (Homeopathic), a candidate belonging to the Scheduled Caste had therefore to compete with others."
26. In State of Maharashtra v. Purshottam it was held that the "cadre" means unit of strength of a service or a part of it as determined by the employer.
27. The argument of Shri Sushil Jain that para 4(b) of Circular RBE No.113/97 dated 21.8.1997 is ultra vires the definition of the word "cadre" contained in para 103(7) of the Code completely ignores the stark reality that in the railway establishment the posts are sanctioned with reference to grades which term means sub-division of a class, each bearing a different scale of pay. Therefore, the posts sanctioned in different grades would constitute independent cadres and we see no reason why a restricted meaning should be given to the term `cadre' for the purpose of implementing the roster. The classification of Loco Pilots of different kinds of trains in different cadres, by virtue of separate seniority lists and separate emoluments, is justified.
7. In Subhash Chand Joshi (supra) the Honourable Punjab and Haryana High Court was considering the case of selection to the post of Signal Inspector Grade III against 20% intermediate quota. Applications are invited from Electrical Signal Maintainer/Microwave Signal Maintainer who were in service as on 30.04.1996 in the pay scale of Rs.950-1500. It was noticed that 40% posts of Signal Inspector Grade-III were required to be filled by direct recruitment and 40% by promotion by selection from Maintainers in the immediate lower grade. Balance 20% were to be by induction of the Intermediate Apprentices possessing the requisite qualifications in terms of Rule 147 of the IREM, Volume I. The said qualifications read thus:
SIGNAL INSPECTORS
147. (1) The vacancies in the category of Signal Inspectors Grade III in scale Rs.1400-2300 will be filled as under:-
40% by direct recruitment through the Railway Recruitment Board, 20% by induction of Intermediate Apprentices from amongst Maintainers possessing the qualification of Matriculation with three years service and below 45 years of age; and 40% by promotion by selection from Maintainers in the immediate lower grade. Although the petitioners before the Honourable High Court got higher marks, yet the respondents number 5 and 8 were promoted on the basis of Rule 219 (j) of IREM. The High Court held thus:
Having heard learned counsel for the parties at some length, we are of the opinion that the order passed by the Tribunal cannot be sustained in law. The appointment to the post of Signal Inspector Grade-III is from three sources i.e., direct recruitment, promotion and against 20% posts through Intermediate Quota. For direct recruitment posts, there is no dispute. The promotions are to be made from the feeder cadre of the post of Signal Inspector Grade-III. The rule of seniority would be relevant for promotion for the employees who fall in the same channel of promotion.
For intermediate Quota of 20%, the candidates are eligible from different sources. They are not necessarily from the same branch or in the same pay scale. It is evident from the fact that petitioner No.1 is ESM Grade-1 in the pay scale of Rs.1320-2040, whereas petitioners Nos 2 and 3 are ESM Grade-II in the pay scale of Rs.1200-1800. In terms of Rule 215 of the Railway Manual, selection for promotion to a selection post is to be made primarily on merits. It is not disputed that the post of Signal Inspector Grade-III is a selection post and the procedure prescribed in Rules 215 and 219 is applicable. The guiding star for selection to the post of Signal Inspector Grade-III is the merit alone. Merit alone would be relevant for determining the right of promotion. It is the said principle which led to striking down for 15% marks in Rule 219 (g) of the Railway Manual.
No doubt, it is correct that a candidate who obtains 60% marks of the aggregate qualifies for placing his name on the panel. However, it does not mean having obtained better marks in the selection process, the rule of seniority shall be made applicable for determining the right of promotion. The candidates are not from the common feeder channel nor in the same scale or in the same cadre.
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. In M Ramjayaram (supra) the extra marks given for seniority for selection to the post of Law Assistant, for which selection is made from diverse sources, was held to be bad in law by the Honourable Supreme Court, which held that the selection had to be made on the basis of overall merit.
8. Having given our utmost consideration to the rival contentions and after careful perusal of the documents placed before us, we are of the considered opinion that the drivers (Loco Pilot) of different trains constitute separate categories and the post of Loco Inspector is not in the normal channel of promotion for all the drivers. It is not disputed that there is a separate seniority list for each category of driver. The learned counsel for the Applicants suggested that all the seniority lists could be integrated by placing Mail Drivers on top and the drivers of the Goods trains at the bottom. It is easier said than done. We are aware that the brambly thicket of rules would make such an exercise well nigh impossible. Be that as it may, as long as the seniority list is separate, we cannot suggest that a combined seniority list should be framed. The matter is really simple. As long as different seniority lists operate, the promotions have to be on the basis of merit. It is almost axiomatic. When there is no common seniority list, promotion to a common posts cannot be made on the basis of seniority. We are also of the view that it does not appear from the rules that earlier the post of Loco Inspector was a post in the normal channel of promotion. It is for that reason that the illegality being committed by the official Respondents was set aside by the Punjab and Haryana High Court, a judgement which was upheld by the Honourable Supreme Court. It is in the light of the judgement of the Honourable Punjab and Haryana High Court that the circular of 19.06.2009 was issued. It cannot, therefore, be said that the rules of the game were changed midstream. Since the procedure being followed earlier was irregular, the correction was introduced that procedure would be applicable retrospectively.
9. Insofar as the judgement of the Tribunal in Bharat Lal (supra) is concerned, it is in accordance with the judgement of the Punjab and Haryana High Court. The intention of the Applicants was to show that the kind of diversity in categories of posts seen in the above case is necessary for the application of merit rule. We are unable to agree with this view. In the instant OA also there is diversity in as much as there are diverse seniority lists and emoluments. In so far as the judgement in Krishna Kumar (supra) is concerned, it is not in consonance with the judgement of the Punjab and Haryana High Court as Artisans in different grades have been treated to be on par.
10. 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. We also hold that issuance of circulars dated 19.06.2009 and 03.09.2009, which are primarily in compliance of the judicial verdicts, would not amount to change in the rules of the game midstream and would not vitiate the process of selection.
11. The reference is answered in the above terms. In the light of the above the substantive issue in the OA has also been resolved. There would be no need to remit the case back to the Division Bench. The OA is dismissed.
( Mrs. Meera Chhibber ) ( L.K.Joshi ) ( V.K. Bali ) Member (J) Vice Chairman (A) Chairman dkm/sk