Central Administrative Tribunal - Delhi
Mrs. Mamta Sareen vs Union Of India And Others on 9 March, 2010
Central Administrative Tribunal Principal Bench OA No.2167/2010 MA No.2101/2010 New Delhi, this the 9th day of March, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Mrs. Mamta Sareen W/o Shri Rakesh Kumar Sareen, R/o B-1/494 Janak Puri, New Delhi 58. . Applicant (By Advocate : Shri M. K. Bhardwaj) Versus Union of India and Others 1. The General Manager, Northern Railway, Baroda House, New Delhi. 2. Chief Personnel Officer (Gazetted) Northern Railway, Baroda House, New Delhi. 3. Ram Kailash appearing at SL. No.4 in the Select Panel and serving as APO, Northern Railway. 4. Sita Ram Sonkar appearing at Sl. No.1 in the Select Panel and serving as APO, Northern Railway. 5. Anand Prakash appearing at Sl. N.2 in the Select Panel and serving as APO, Northern Railway. 6. Rajendra Prakash appearing at Sl. No.3 in the Select Panel and serving as APO, Northern Railway. 7. Sanjay Girdhar appearing at Sl. No.5 in the Select Panel and serving as APO, Northern Railway. 8. Awadhesh Kumar Saxena appearing at Sl. No.6 in the Select Panel and serving as APO, Northern Railway. 9. K. K. Dixit appearing at Sl. No.7 in the Select Panel and serving as APO, Northern Railway. 10. Chander Shekhar appearing at Sl. No.8 in the Select Panel and serving as APO, Northern Railway. 11. Harvinder Singh appearing at Sl. No.9 in the Select Panel and serving as APO, Northern Railway. 12. Naresh Kumar appearing at Sl. No.10 in the Select Panel and serving as APO, Northern Railway. 13. Rachhi Pal Singh Chauhan appearing at Sl. No.11 in the Select Panel and serving as APO, Northern Railway. . Respondents (Service to private respondents through respondent No.2.) (By Advocate : Shri V. S. R. Krishna with Shri Rajinder Khatter for Respondents No.1 and 2. Shri Shailendra Tiwari for Respondents No. 3 to 9 and 11 to 13. None for Respondent No.10) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Smt. Mamta Sareen, the Applicant herein, through this OA has assailed the action of the Official Respondents in not promoting her in spite of securing more marks (151.5) than the last selected candidate (126.5), and has approached for the intervention of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with following prayers:-
(i) the Honble Tribunal may graciously be pleased to set aside the final select panel dated 16.11.2009 and direct the respondents to prepare the select panel on the basis of merit and by ignoring the seniority.
(ii) the Honble Tribunal may graciously be pleased to set aside the final select panel dated 16.11.2009 to the extent that the name of the applicant has not been included in the same.
(iii) To direct the respondents to declare the applicant as selected candidate and give her promotion to the post of APO with effect from 16.11.2009 with all consequential benefits including arrears of pay along with 9% interest.
(iv) To allow the O.A. with costs.
(v) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicants.
2. The factual matrix relevant for determination of the issues in this OA are briefly stated here. Railways vide letter dated 23.03.2009 and 15.05.2009 called 355 candidates to appear for the written examination to select successful candidates to fill up 11 vacancies of Assistant Personnel Officer (APO) (all for the unreserved category), against 70% quota vacancies for the period 1.04.2008 to 31.03.2010. Examination was held on 25.07.2009. Along with the Applicant 25 candidates who qualified in the written test were interviewed on 22.10.2009. 11 candidates were enlisted in the Provisional Panel of APO against 70% quota vacancies. It is seen that the APO post comes under Group-B and panel of candidates from Group-C are selected for the said APO post, which is one of the organized services in the Railways. Further, the candidates selected under 70% quota are ranked as per their seniority whereas the 30% quota candidate are selected on merit as per the marks secured in the examination. It is a fact that the Applicant appeared under 70% quota examination and having qualified, was called for viva voce test held on 22.10.2009 but she was not found place on the select panel due to her lower seniority position compared to other selected candidates. Feeling aggrieved by the said panel and her non selection, she is before this Tribunal in the present OA.
3. Shri M. K. Bhardwaj, learned Counsel for the Applicant submitted that pursuant to the general selection for the post of Assistant Personnel Officer (APO) Gr.B against 70% quota for the vacancies for the period from 01.04.2008 to 31.03.2010, the Applicant secured the overall highest mark i.e. 151.5 marks out of 200, in comparison to the lower marks obtained by all other candidates. He would wonder that the Applicant was not selected but others securing less mark were selected. He submits that in respect of the merit and empanelment of candidates for appointment to the post, law has been well laid down by the Honble Supreme Court in M. Ramjayaram Versus General Manager, South Central Railway & Others [1996 (1) SC SLJ 536]. Shri Bhardwaj contends that the judgment lays the law to the effect that when the selection incorporates from different streams and from different feeder categories, candidates merit shall be the criteria for selection and the seniority should be ignored. The aforesaid principle was relied on by the Honble High Court of Punjab & Haryana in Subhash Chand Joshi & Others Versus Union of India & Others[2008 (2) SCT 787] which was upheld by the Honble Supreme Court in the SLP No.16774/2008. In the selection held, which invited applications for the post of APO against 70% quota vacancies, Group C Ministerial staff of different departments and other streams as feeder categories were made eligible to apply for promotion to Group B. He also cites a binding precedent of the Full Bench (OA No.2765/2009) where the Tribunal has held that in case of general selection, the seniority has no role to play and the selection has to be made on the basis of merit in the examination. It is also submitted that there is no distinction between the general selections made to Group C posts or from Group C to Group B posts.
4. It is contended that Railway Board, relying upon M. Ramjayarams case (supra), issued its circular dated 19.6.2009 where it laid down selection procedure for promotion to general selection posts and did not distinguish between a selection from Group C to Group B or selection from Group D to Group C. As the selection is a generic term laid down in 219(g) of IREM, the preparation of the panel on general selection posts irrespective of the Category or Group of the posts, should be only on the basis of marks/merit obtained. It is further stated that the aforesaid circular has been made applicable to all the panels for promotions in the General Posts, which includes a panel formulated for the purpose of promotion in Group B post from different feeder categories of Group C posts. Referring to the Advance Correction Slip No.209 dated 19.6.2009 issued by the Railway Board which substituted Para 219(j) Shri Bhardwaj submits that the rules have been laid down on the basis of M. Ramjayarams case (supra) for promotion of Group C staff which supports the grounds of the Applicant. Moreover, the Circular has come into effect immediately on 19.6.2009 meaning thereby that all panels to be drawn, shall follow the circular. In the case of Applicant even the written examination was held on 25.7.2009, result declared on 12.8.2009 and panel was drawn on 16.11.2009 i.e. all happened after issue of the said correction slip on 19.6.2009. He, therefore, submits Applicants case is fully covered by the above said correction slip issued on 19.6.2009.
5. Shri Bhardwaj responded to the objection raised by the Respondents who placed reliance on Para 203.5 of IREM where the employees from different streams are eligible to appear on the basis of integrated seniority and for which the entry in Grade of Rs.6500-10500 and is the determining factor for reckoning the total length of non-fortuitous service, and submitted that the APO Group B against 70% quota which were drawn from different streams and categories with pay scale Rs.5500-9000, Para 203.5 had no applicability. His contention is that all the above instructions have been superseded by Circular dated 19.6.2009 in the case of all general selections. Moreover, integrated seniority in Grade Rs.6500-10500 is prepared when a Group B selection is held in a particular department and the zone of consideration is confined to three times of the vacancies including twice earlier failed candidates are called from the concerned department only, such as Asstt. Electrical Engineers (AEE), Assistant Operating Manager (AOM), Asstt. Engineers (AEN) etc.(Annexure W-3). Moreover, in an identical situation before the Chandigarh Bench of the Honble Tribunal in OA 586-HR-2008 in Surinder Kumar Versus Union of India and Others as decided on 8th Sept. 2010, (Promotion from Group C to Group B post) Subhash Chand Joshi & Others Versus Union of India & Others reported in 2008 (2) SCT page 787 has been placed reliance on to hold non-consideration of seniority and determination of selection is to be made on the basis of merit alone. The aforesaid dicta has also been followed in another OA No.451/2003 of Raiza Zaidi Versus Union of India, decided on 18th July, 2007 by the Lucknow Bench of this Honble Tribunal which has been upheld by the Honble Apex Court which is a case of promotion from Group C to Group B post. The act of the Respondents to adopt different criteria for selection process under 70% & 30% quota for APO respectively and with selective application to Para 203.5 of the rules does not stand to scrutiny of the test of equality under Article 14 and 16 of the Constitution of India when the syllabus for both the quota is identical and the feeder category is same. The selection has to be finalized on the basis of merit in 70% quota and there cannot be any distinction for adopting a different principle without any reasonable nexus with the object sought to be achieved. Para 219 (g) negates applicability of Rule 320. The selection procedure is prescribed in Para 204 and seniority is not the basis. Hence, Shri Bhardwajs argument is that the Applicant having secured the highest marks in professional ability, Viva Voce and record of service, has not only to be empanelled but on selection should be appointed as APO over the candidates, who secured less marks.
6. The Official Respondents have filed the counter reply on 28.09.2010 and the Private Respondents submitted their reply affidavit on 16.12.2010. They have opposed the grounds taken by the Applicant.
7. Shri Rajender Khatter, learned Counsel representing the Respondents No.1 and 2 contended that the impugned selection was for empanelment for Group B post of Assistant Personnel Officer (APO) and the Railway has 2 types of selections namely; (i) 30% selection through LDCE; (ii) 70% selections through written examination (non-selection). He submits that the present selection pertains to Group-B posts and is under 70% category, which is conducted under the provisions of Rule 203.8 and 203.9 of IREM which stipulate that incumbents of 70% selections who secure more than 80% marks and are declared outstanding are placed on the top of the panel of selected candidates. The inter se panel position is in the order of seniority of empanelled candidates and similarly candidates securing marks between 60-79% marks are placed below the outstanding candidates and again in order of inter se seniority. It is precisely following this mandatory statutory provision that the select list was finalized. It is further submitted by Shri Khatter that select list prepared in terms of statutory provisions should not be interfered by the Tribunal on frivolous grounds as raised in the OA. He contended that the Applicants claim was in terms of 30% selections which should be based on merit and if the Applicants contentions would be accepted, there would be no distinction between two categories and sources of promotion i.e.30% and 70%. Accordingly, he pleads that the OA is misconceived and liable to be dismissed.
8. Shri Shailendra Tiwary, learned Counsel appearing on behalf of the Respondents No.3 to 9 and 11 to 13 endorsed the contentions advanced by Shri Khatter and would contend that the selection was initiated for promotion from Group-C to Group-B services in the post of APO under 70% quota vacancies as per the IREM Para 203.5 and the Private Respondents having acquired the qualifying marks and having appropriate seniority were assigned their position in the List. It is further submitted by him that the 70 % quota vacancies is different from 30% quota vacancies as the former is based on non selection but the latter is based on merits. The contentions of the Counsel for Applicant was opposed to state that if the merit for the 70% quota vacancies was to be adopted it would mean that all the vacancies would be filled up only on the basis of merit, not on seniority. He further contended that the Applicant was not put in the select panel published on 16.11.2009 after she participated in the said process, and hence she should be estopped by her own conduct as held by Honble Supreme Court in Chandra Prakash Tiwari versus Shakuntala Shukla [(2002) 6 SCC 127]. Further, he also draws his reliance on the judgment of Honble Supreme Court in Om Prakash Shuklas case reported in 1986 Supp. SCC 285 to submit that when a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. He also submits that the judgments relied upon by the Counsel for Applicant, namely, the judgment of Honble High Court of Punjab and & Haryana in the Writ Petition No.4764/2002 in the matter of Subhash Chand Joshi & Ors. would not be applicable in the present case as the selection was not under Para 219 (j) of IREM but was under Para 203.5 of IREM. Referring to the Railway Board letter dated 19.06.2009, Shri Shailendra Tiwary contends that according to the said circular IREM was amended by a correction slip No.209 and Para 219 (j) was also amended accordingly and the said provision would not be relevant for the APO selection. In the above circumstances, Shri Shailendra Tiwary submits that the OA is liable to be dismissed.
9. Having heard the rival contentions, we very carefully perused the pleadings and the judgments relied on by the parties. The controversy revolves on the issue whether the principles of seniority would be applicable for 70% quota vacancies for filling up the post of APO in the Railways, and the principles of merit claimed by the Applicant is admissible or not for the said 70% quota vacancies?
10. Before we analyse the facts for proper adjudication it would be appropriate to examine which of the Rules of IREM would be applicable for the promotion to APO posts. Undisputedly, the APO posts are classified as Group B post as per Rule 203.8 and the said Rule comes within Chapter-II Section-A under the caption Rules governing promotion of subordinate staff. Section-B of the said Chapter governs about the promotion to the Group-C posts. The counsel for Applicant very elaborately argued on the Rules/paragraphs governing the promotion to Group C which in our opinion are not applicable for the promotion to Group B posts. Chapter-II Section-A includes para/Rules 201 to 209. The Rule 203.8 of IREM has envisaged that In respect of selections for the Group B posts of Assistant Personnel Officer all employees who are eligible and who volunteer for the selection should be considered, without any limitation of number.
11. We may take the extracts of the relevant paragraphs of IREM which have been referred to by both the parties. The Railway Board has issued a Master Circular on Instructions Governing Promotion from Group-C to Group-B which includes all the relevant provisions of IREM and the same are applicable in the present case. The relevant portion of the IREM 203.5, 204.8 and 204.9, which are applicable for selection for the post of APO read as under :
203.5 Where employees from different streams are eligible to appear for the selection, their Integrated seniority for the purpose of selection should be determined on the basis of total length of non fortuitous service rendered in Grade 6500-10500 and above. 204.8. The successful candidates shall be arranged as follows:
Those securing 80% marks and above graded as Outstanding.
Those securing between 60%marks and 79% marks graded as Good. 204.9. The panel should consist of employees who had qualified in the selection, corresponding to the number of vacancies for which the selection was held. Employees securing the gradation Outstanding will be placed on top followed by those securing the gradation Good inter se seniority within each group being maintained.
12. Admittedly, Para 219 deals with the procedure to be adopted by Selection Board in respect of promotion of non-gazetted Group C staff. Though the counsel for the Applicant referred to the said paragraph, Para 219, we are of the opinion that these paragraphs coming for promotion to Group C posts would not be applicable for Group-B posts.
13. It is not in dispute that the post of APO needs to be filled up through two different methods; first 30% by selection process on the basis of the merit and second 70% by non selection process but through the written examination and viva voce and those who qualify are to be put in the select panel. The dispute in the present OA implicitly revolves around the issue as to which of the methods 11 vacancies of APO should be filled up? While the counsel for the Applicant pleads that the merits should be the principle for selection which is envisaged for 30% quota vacancies, the Respondents counsel contends that the selection process under 70% quota vacancies envisages a qualifying bench mark and once the candidates get selected in the qualifying bench mark, it is the seniority within the group which becomes the guiding factor to put them into the panel. We find that the Respondents have called for applications from Group C eligible employees for promotion to Group B in the 70% category and logically the stand taken by the Counsel for the Respondents, as per IREM para 203.5 is correct.
14. It is noted that the para 204.8 of IREM has clearly prescribed that those who secured less than 60% marks in the overall marking, taking into account, the written examination and viva voce, they would not be qualified to be considered for APO post under 70% quota. Thus, who secured 60% and above would be eligible to be selected subject to further categorization viz.(1) those securing 80% marks and above are graded as Outstanding; and (2) those securing between 60%marks and 79% marks graded as Good. It is also noted that those candidates who secured overall more than 80% marks would be put on the top of the list. Amongst such candidates the seniority would be the criteria to fix their inter se seniority in that category. The nest category would be Good candidates and here again the inter-se seniority would be the criteria for ranking them.
15. Thus, the principle enunciated in the IREM for the selection to the post of APO under 70% quota vacancies would indicate two categories of candidates eligible to be put in the Panel and the guiding principle in each of those 2 categories would be the inter se seniority of such candidates. Admittedly, the Applicant has not secured 80% or more than 80% marks and, as such, she could not have been put in the list of outstanding candidates category above the other selected candidates who secured less than 80% marks. Therefore, the Applicants case needs to be considered only in the category of Good along with other selected candidates viz private Respondents. It is not disputed that the Applicant does not have higher seniority than the selected private Respondents to claim right of inclusion above others, though she has secured highest percentage of marks. Her position being beyond 11, she could not have been put in the panel. Therefore, other selected candidates, namely, the private Respondents being senior to the Applicant, have been correctly selected to fill up the 11 vacancies in the 70% quota.
16. We note in the present case for filling up 70% quota vacancies, the Respondents as per the extant IREM Guidelines adopted the qualifying marks as the criteria and once the candidate becomes successful in qualifying marks then the next stage of preparation of the Select Panel would arise and that would be in 2 different grades, one outstanding on the top of the list and the second, other selected candidates securing more than 60% but less than 80% marks in the next list. In each of these cases, seniority is the guiding principle as per the extant IREM guidelines. Merit has not been recognized to be the criteria . The Applicant fails to convince us on this aspect. We do not find any infirmity in the selection process which, on the other hand, conforms to the extant guidelines of the IREM.
17. There is a reference to Honble Supreme Courts judgment in the case of N. Ramjayaram case (supra) to say that in a selection process merit should be the criteria and seniority should be ignored. A close perusal of the cited judgment would reveal that the controversy in N. Ramjayarams case (supra) is whether the contesting respondents were entitled to be given preferential 15 marks over the appellant in selection as Law Assistant. The position in the said case was that a written examination was held wherein the appellant secured more than 60% marks in written examination and faired well in viva voce. The contesting Respondents have been assigned 15 marks for their seniority and the appellant could not be selected. Therefore, the appellant challenged the awarding of 15 marks as discriminatory and violative of Article 14 of the Constitution of India. While allowing the Appeal, the Honble Supreme Court held that in a selection process adopted under Rule 219 (g) of the Railway Manual, the selection should be made primarily on the basis of overall merit but for guidance of Selection Board the factors to be taken into account and the relative weightage laid down in Para 219 (g). The Honble Supreme court held that since the contesting respondents were not from the same unit but of different units, Rule 320 stands excluded and weightage of 15 marks for seniority given to the respondents obviously is illegal. In the present OA, the controversy is not on assignment of marks on the basis of seniority, therefore, on facts the present OA is far different from those in the case of N. Ramjayarams case (supra). Therefore, we distinguish the judgment of Honble Supreme court and note that the said judgment is not applicable in the present OA.
18. Counsel for the Applicant very elaborately explained the judgment of Punjab & Haryana High Court in the case of Subhash Chand Joshi & Others (supra) where the judgment of N. Ramjayaram was relied upon. We also note that in the case of Subhash Chand Joshi (supra) the facts and the controversies in the selection process of Signal Inspectors were far different from that of the present selection process for the APOs. The law laid down in the cited judgment indicates that the appointment to the post of Signal Inspector Grade-III was from 3 different sources in the following manner viz (1) 40% by seniority cum suitability; (2) 40% by direct recruitment, and (3) 20% known as Intermediate Quota from different sources which include E.S.M. Grade-1, E.S.M. Grade-II and Master Craftsman. The Honble High Court while setting aside the impugned order of the Tribunal and holding the promotion of the Respondents No.5 to 8 as illegal directed the petitioners to promote Respondents No.1 to 4 to the post of Signal Inspector Grade-III from the same date when Respondents No.5 to 8 were promoted and further observed that 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. 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) was declared wholly illegal and arbitrary as the rule of seniority sought to be introduced when there was none and when the promotion was to a selection post by a selection method on merit in the qualifying examination. The issue of selection in the above said case was for the selection post and the selection method was on merits. In the present case, the post is a non selection post though the process of selection to the post was through qualifying bench mark of 60% which meant that written examination and viva voce were the method to put the selected candidates in the panel. The candidates came from Group-C and their inter se seniority was adopted. Nowhere, the Applicants have disputed that there is no inter se seniority list of the competing candidates in Group C for the post of APO. Therefore, in our considered opinion that the judgment in Subhash Chands case (supra) would not be applicable in the present OA.
19. Counsel for the Applicant has also placed reliance on the judgment of Full Bench of this Tribunal in the case of Bhramesh Kumar Gupta and others versus Union of India and Others (OA No.2765/2009 decided on 4.01.2011) in which the issue is whether the promotion to the post of Loco Inspector by notifying 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 is in accordance with the paragraph 219 of the Indian Railway Establishment Manual (IREM), Volume (1). We have very closely gone through the said judgment and note that the Tribunal has taken into consideration the judgment of Honble Supreme court in the case of M. Ramjayaram (supra) and Honble High Court of Punjab & Haryana in the case of Subhash Chand Joshi (supra) and has held that the Circular of 19.06.2009 was issued mainly on the basis of the judgment of Honble Punjab and Haryana High Court. It has been further held that Rules of the game were changed midstream and since the procedures being followed was illegal, the correction was followed in that procedure which would be applicable retrospectively. The Tribunal held that the selection for the post of Loco Inspector is a General Selection post and the selection from amongst the drivers of different categories has to be made on the basis of merit and seniority would have no consideration and also held that the 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. We also find that the circulars dated 19.6.2009 and 3.9.2009 will not impact the selection of the private Respondents.
20. There is logic in the argument of the counsel for the Respondents that the Applicant has submitted her application for the post of APO under 70% quota, wrote examination, attended viva voce test but could not be selected as her seniority was low and number of vacancies were limited. It is heartening to note that she secured marks higher than the selected candidates. Had the vacancies been in 30% quota, she would have been in the panel. But, she is well aware of the category under which she is applying. Just because she has got higher percentage marks, the selection process cannot be bent through judicial intervention. Ultimate selection for promotion is on the basis of seniority in the grade of Good and not on the marks secured in the written examination and viva voce test. Legally, the Applicant is barred by the doctrine of estopple as she has participated in the prescribed selection process.
21. The selection process was undertaken by the Official Respondents for the vacancies which arose on 1.4.2008 and thereafter. Hence, the extant IREM Rules would be applicable and the amendments done lateron cannot have retrospective effect.
22. Considering the totality of facts and circumstances of the case and the extant rules on the subject of promotion to APO posts, we come to the considered conclusion that seniority is the guiding criteria in the category of candidates rated Good (more than 60% and less than 80%) and as per the IREM para 204.9 merit has no place among the candidates in Good category. Thus, the Applicant fails in her case to convince us to intervene in the matter. Resultantly, the OA being devoid of merits is dismissed. No costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/