Central Administrative Tribunal - Hyderabad
M. Raghavendra Kumar vs State Of Punjab. In Oa 251/2003 This ... on 23 July, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 95/2006 Date of order: 24 -07-2008 Between: M. Raghavendra Kumar, Occu: Technician Grade-III, O/o. Chief Works Manager, Carriage Workshop, Lalaguda, South Central Railway, Secunderabad. resident of Plot No. 230, Shaili Gardenia, Yapral, Secunderabad-500 087. ... Applicant A N D 1. The Union of India, rep. by General Manager, South Central Railway, Rail Nilayam, Secunderabad. 2. The Chief Works Manager, South Central Railway, Lalaguda, Secunderabad. 3. Sri T.P. Rama Krishna, Occu: Technician Grade-III, O/o. Chief Works Manager, Carriage Workshop, Lalaguda, South Central Railway, Secunderabad. ... Respondents Counsel for the applicant : Mr. V. Venkateswara Rao Counsel for the respondents : Mr. V. Rajeswara Rao for R1&2 Mr. G.S. Rao, for R-3 C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. R. SANTHANAM,MEMBER(A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicant seeking for the following relief :
To call for the records pertaining to the letter to the letter No. LGDS/P.605/JE-II(LDCE) dated 24th January, 2006 issued by the 2nd respondent revising the panel dated 17th January,2006 for the post of Junior Engineer Grade-II against LDCE 25% quota and quash the same declaring it as illegal, arbitrary and unconstitutional by holding that the applicant herein is entitled for inclusion of his name in the said panel a per the merit order secured by him with all consequential benefits such as deputing him for training and appointment as Junior Engineer grade-II against the OC vacancies notified in the notification dated 23rd September,2005 with seniority, arrears of pay and allowances etc.
2. The undisputed facts of the case are that a notification dated 23.09.2005 was issued by the respondents inviting applications from regular serving Sr. Technicians and Skilled Artisans in Grade I, II & III of Lallaguda Workshop who are below 45 years of age as on 01.09.05 and fulfilling the conditions mentioned therein to form a panel of 14 (UR-10, SC-03, ST-01) candidates for the post of Intermediate Apprentice Mechanic in scale Rs.5000- 8000 RS (RP) against 25% LDCE quota. A copy of the said notification is enclosed as Annexure A-I at page-6 of the OA. The applicant herein applied in response to the said notification as a OC candidate. Written examination, as a part of selection was held on 24.12.2005. The mode of selection for the above post is by way of written test and then assessment by Departmental Promotion Committee (DPC) basing on the service record of concerned staff who qualifies in the written examination. There is no viva-voce for the post. The distribution of marks between written test and record of service is 85 and 15 marks respectively.
3. As per rule candidates securing 60% and above marks in the written test and securing 60% and above marks in the aggregate will qualify for being included in the panel.
4. A panel dated 17.01.2006 consisting of 12 candidates were recommended based on their merit position. Accordingly a provisional panel of 12 candidates dated 17.01.2006 was prepared, copy of which is enclosed as Annexure-IV at page 11 of the OA. Applicant's name appears at Sr. No.5 of the panel. When the matter stood thus a corrigendum was issued to the panel dated 17.01.2006 vide letter of 2nd respondent dated 24.01.2006 deleting the name of the applicant from the original panel dated 17.1.2006 and name of Shri T.P. Ramakrishna was included in the panel. The corrigendum dated 24.01.2006 is enclosed as Annexure A-V at page 12 of the OA. Being aggrieved by the same the applicant has approached this Tribunal questioning the corrigendum and has sought for the aforesaid relief.
5. Respondents have contested the application by filing a counter reply.
6. We have heard Mr. V. Venkateswara Rao, learned counsel for the applicant and Mr. V. Rajeswara Rao, learned counsel for the respondents. We have gone through the facts of the case and material papers placed before us. We have also gone through the relevant instructions produced before us.
7. In view of the above undisputed facts the only question that falls for our consideration is as to which of the panel i.e. dated 17.01.2006 (Annexure A-IV)and 24.01.2006 (Annexure A-V) is in order.
8. It is the case of the respondents that as per Railway Board instructions contained in Estt. Serial Circular No. 41/1987 (copy enclosed as Annexure R-III to the counter reply) the panel shall be formed based on the seniority amongst the qualified candidates. However, contrary to the above instructions, a panel dated 17.01.2006 consisting of 12 candidates were recommended based on their merit position without taking into consideration the seniority of respective candidates.
9. As the said panel was not in accordance with rules and regulations mentioned therein, the matter was reviewed and new panel dated 24.01.2006 was prepared duly indicating the reasons warranting issue of the same. In the new panel of 12 candidates, applicant could not be included as he was not senior enough to come in the panel.
10. For better appreciation of the issue involved in this case Serial Circular No. 41/87 dated 31.3.1987 is extracted herein below :
Sub: Selection procedure of Apprentice Mechanics.
The following clarifications are issued in implementing the Board's orders issued, vide their letter No. E (NG) 1-84, PM7-33/AIRF dated 26.11.86, circulated under Personnel Branch Serial circular No. 9/87 dated 3.2.87 in connection with filling up 25% of vacancies specified for serving employees with requisite qualifications :-
1) All the eligible volunteers should be called for written test;
2) All those who secure 60% or above in the written test should be called for interview. No relaxation of marks is permissible for candidates belonging to SC/ST, being Safety category. No notional seniority marks are to be added for deciding the eligibility for being called for viva-voce;
3) Such of those volunteers who get 60% in professional ability and 60% aggregate would qualify for empanelment. The panel is to be drawn according to the seniority from amongst the qualified staff. No seniority marks are, however, to be allotted;
4) All those who secure above 80% marks in aggregate should be treated as 'out-standing' and placed on top en-block, according to their inter-se-seniority.
11. In this context, subsequent Railway Board instruction on the subject contained in Serial Circular No. 116/2003 dated 08.07.2003 is also required to be gone through and the same is extracted herein below :
Sub: Reservation in promotion - Treatment of SC/ST candidates promoted on their own merit.
Ref: Railway Board's letter No. 99-E(SCT)1/25/13 dated 07.08.2002 Some of the Zonal Railways have raised doubts regarding Para (1) of the above quoted letter and sought a categorical clarification as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications are to be adjusted in the post based roster.
In this context, it is clarified that in selection posts, SC/ST candidates who are selected by applying the general standard and whose names in the select list/panel appear within the number of unreserved vacancies are to be treated as selected on their own merit. For example, suppose there are a total of 10 vacancies for which a panel/select list is to be prepared. Out of them, six vacancies are unreserved and four are reserved for SCs/STs. First six candidates in the select list/panel who have been selected by applying the general standard will be adjusted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC or ST category. SC/ST candidates selected for remaining four reserved vacancies, whether selected on general standard or by giving relaxations/concessions as per existing instructions on the subject, shall be adjusted against reserved vacancies. Similarly, in case of non-selection promotions, SC/ST candidates who are senior enough to be within the number of unreserved vacancies and are included in the panel/selection list without getting any relaxation/concession will be treated as own merit candidates.
12. In the notification dated 23.09.2005 the Assessment period has been mentioned as 01.9.2005 to 28.2.2007. It is well settled position of law that the rule which is in existence when vacancies arise, shall be applied when they are filled in. Therefore, when the assessment period of vacancy is between 01.9.2005 to 28.2.2007, the instruction of 2003 i.e. serial circular no. 116/2003 would be applicable in this case. It is not in dispute that it is a case of selection/promotion. Therefore, as per the instructions contained in Serial Circular No. 116/2003 (supra) first seven candidates in the list of qualified candidates who have been selected, will be posted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC/ST category. The list of qualified candidates prepared on the basis of merit is enclosed by the respondents at page 15 of their counter reply. Therefore, according to the above instructions those two SC candidates viz. P. Koti Swamy and K. Thirupathiah who are there amongst first seven candidates are to be included against OC vacancy. That being so, the first panel dated 17.01.2006 has been prepared as per the instructions i.e. Serial Circular No. 116/2003. The respondents have committed mistake by preparing the subsequent panel dated 24.01.2006 following the Estt. Serial Circular No. 41/87 (supra).
13. In view of above discussion, we find that the corrigendum dated 24.01.2006 i.e. subsequent panel issued by the authority concerned is liable to be quashed and set aside. Accordingly, we hereby quash and set aside the same. However, a careful reading of Serial circular No. 116/2003 would show that it does not contain the instructions that SC/ST candidates recruited through direct recruitment competes with un-reserved candidates in all aspects and is selected to the un-reserved vacancy based on merit, he could be counted as unreserved candidate. But, if an SC/ST/OBC candidate gets a higher merit/rank and if he is a person who had earlier availed reservation/concession he has to be accommodated against reserved quota only. In this context it requires to mention that the Chandigarh Bench of the Tribunal passed its order in OA No. 59-PB of 1998, dated 30.7.2002 in the case of BIR SINGH AND OTHERS v. UNION OF INDIA AND OTHERS, wherein it has been held that :
"If the SC/ST candidates, who have passed the selection on their own merit and seniority and had not availed the benefits of reservation in any of the lower posts, then such SC/ST candidates can be considered to have competed with general candidates and such candidates can be adjusted against unreserved vacancies. Further, if SC/ST candidates who have received the benefit of reservation in any of the lower posts resulting in their accelerated promotion, then they cannot be considered to have competed with general candidates on their own seniority and merit and they have to be adjusted against reserved vacancies only."
14. It will not be out of place to refer to DOPT office memorandum No. 36028/17/2001-Estt.(Res) dated 11.7.2002 wherein the treatment of SC/ST candidates promoted on their own merit has been clarified as under :
"(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any."
15. This Bench of the Tribunal in OA 251/2003 decided on 31.07.2003 has observed that OM dated 11.07.2002 (supra) is nothing but a clarification to earlier OM dated 2.7.1997 which was issued in consequence to the judgment of the Hon'ble Supreme Court in the case of R.K. Sabharwal vs. State of Punjab. In OA 251/2003 this Tribunal has held that the respondents therein misinterpreted the OM dated 2.7.1997 while applying the same and accommodated several SC/ST candidates who have availed the benefit of reservation have been accommodated and promoted against the unreserved points denying unreserved slots for the general candidates. The Tribunal has, therefore, said that this action of the respondents is contrary to the very concept and object of the office memo dated 2.7.1997 read with the clarificatory memo dated 11.7.2002.
16. In view of the above discussion the Sr. Circular No. 116/2003, insofar the promotion by selection is concerned, is incomplete inasmuch as it does not contain the instruction that if an SC/ST/OBC candidates recruited through direct recruitment competes with unreserved candidates in all aspects and is selected to the unreserved vacancy based on his merit, he would be counted as unreserved candidate. But if an SC/ST/OBC candidate gets a higher merit/rank and if he is a person who had earlier availed the benefits of reservations/concessions, he has to be accommodated against reserved quota only. Therefore, if such circular is applied while giving promotion by selection there is a likelihood of accommodation of SC/ST candidates who come out successfully on merit while competing with Unreserved candidates in all aspects although they have already availed the benefit of reservation/concession earlier. We are, therefore, of the view that Sr. Circular No. 116/2003 is liable to be struck down insofar as it contains the instruction in regard to promotion by selection. The same is accordingly struck down to the extent indicated above. The respondents shall follow the DOPT OM dated 2.7.1997 (supra) while considering the promotion by selection. The respondents are at liberty to issue appropriate circular duly following the DOPT instruction dated 11.7.2002.
17. Insofar as the panel dated 17.1.2006 (supra) is concerned, the respondents are directed to examine as to whether SC/ST candidates who are there in the said panel have already availed the benefit of reservation/ concession earlier and finalise the panel accordingly as per OM dated 11.7.2002. On examination if it is found that they have not availed the benefit earlier, the respondents shall finalise the panel dated 17.1.2006. However, we make it clear that if the SC/ST candidates availed the benefits earlier, their name should be deleted from the panel and replaced by the candidates duly following the OM dated 11.7.2002. Respondents are directed to complete the entire exercise within two months from the date of receipt of a copy of this order.
18. OA is allowed to the extent indicated above with no order as to costs.
(R. SANTHANAM) (BHARATI RAY)
MEMBER (A) MEMBER(J)MD