Central Administrative Tribunal - Bangalore
Anthony Daniel vs South Western Railway on 16 March, 2023
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OA.No.170/00316/2021/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00316/2021
DATED THIS THE 16TH DAY OF MARCH, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Anthony Daniel
S/o K.A. Daniel
Aged 44 years
Loco Pilot (Mail)
South Western Railway,
Sakleshpur
R/o # 151, Pallaki
Gowrikoppalu, Hassan 573 201 .... Applicant
(By Shri K. Shivakumar, Advocate)
Vs.
1. Union of India,
Represented by General Manager
South Western Railway,
Rail Soudha, Gadag Road,
Hubballi 580 020
2. Senior Divisional Personnel Officer
South Western Railway,
Mysuru 570 001
3. Shri Anil Kumar
Chief Loco Inspector
(Working as Chief Crew Controller)
South Western Railway, Chikjajur 577 523
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OA.No.170/00316/2021/CAT/BANGALORE
4. Shri Pradeep Ram
Chief Loco Inspector
South Western Railway,
Sakleshpur 573 134 ....Respondents
(By Shri J. Bhaskar Reddy, Railway Standing Counsel for
Respondents No. 1 & 2,
None for Respondents No. 3 & 4)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i). Call for the entire selection records and on perusal quash the letter dated 01.02.2021 issued by the respondents (Annexure-A3)
(ii) Order the respondents to promote the Respondent No. 3 against SC point and to promote the applicant against the UR point vacated by Respondent No. 3 on the basis of marks secured in aggregate."
2. The brief facts as narrated by the applicant are that the applicant being qualified in the written examination conducted as a part of selection pursuant to the notification dated 19.05.2020 issued by the respondents to fill up the post of Chief Loco Inspectors, came to know that he has secured 94 out of 100 marks in the written examination through RTI enquiry. The applicant 3 OA.No.170/00316/2021/CAT/BANGALORE being a candidate under UR category, submitted a representation to place the Respondent No. 3 against SC category and to accommodate him in the UR category, placing reliance on the orders of the Hon'ble High Court of Kerala in OP (CAT) No. 102/2020 dated 18.01.2021. In response, the respondents replied that the said judgment is applicable only in personam and not in rem. Further the respondents issued a memorandum dated 02.02.2021, wherein, the Respondent No. 3 has been placed against UR vacancy and Respondent No. 4 has been charged against SC vacancy. The applicant avers that the process of selection and preparation of panel for the posts under consideration ought to have been formed based on the aggregate marks in the written examination, record of service for the last three years and the seniority. His representation in this regard has been rejected. Being aggrieved, the applicant is before this Tribunal.
3. Learned counsel Shri K. Shivakumar representing the applicant submitted that the promotion of Respondent No. 3 against UR category has caused injustice to the applicant in denying his promotion with undue advantage to Respondent No. 4 OA.No.170/00316/2021/CAT/BANGALORE 4, who would not have been found in the panel if the Respondent No.3 was charged against SC post. Learned counsel has placed reliance on the judgment of the Hon'ble High Court of Kerala in OP (CAT) No. 102/2020 dated 18.01.2021 in the case of Union of India & Ors. vs. G. Vinod & Ors.
4. Per contra, learned counsel Shri J. Bhaskar Reddy representing the respondents, inviting our attention to the order passed by this Tribunal in OA No. 162/2021, argued that the issue involved herein, is squarely covered by the said order. Accordingly, this application is hit by the principles of res judicata. Thus, the learned counsel sought for dismissal of the application.
5. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
6. It is not in dispute that the applicant herein was the applicant No. 2 in OA No. 162/2021. The said OA 162/2021 was filed by the applicant along with 2 others seeking a direction to the official respondents to amend the selection panel dated 5 OA.No.170/00316/2021/CAT/BANGALORE 02.02.2021 on the basis of marks secured in aggregate. The two grounds urged in this application viz., the selection has to be finalized and the panel has to be formed based on the aggregate marks in the written examination, record of service for the last three years and the seniority as well as the legality and validity of the selection of SC candidate against a UR post instead of SC post is concerned, were also the grounds amongst the other grounds urged in the said OA No. 162/2021. Considering these aspects in extenso, this Bench in paragraph 14 has held thus:
"14. As far as the selection of one SC candidate against a UR post instead of SC post is concerned, the SC candidate was placed on the panel as per his inter-se seniority. As per his seniority, since he was senior to other UR candidates, hence he was appointed against the UR post with the SC post being filled by another SC candidate. There appears to be no violation of instructions contained in RBE 103/2003 dated 20.06.2003 in terms of filling up of UR posts by SC candidates if found suitable and senior to others once the principle of following the policy of suitability cum seniority is followed."
7. As regards the selection process for the post of Chief Loco Inspector based on the criterion of suitability cum seniority 6 OA.No.170/00316/2021/CAT/BANGALORE as laid down in RBE No. 108/2019 dated 03.07.2019, it has been observed thus:
"17. This letter changes the policy by which the selection panel is to be prepared from suitability cum seniority to merit. Such a major change in the policy can only be prospective in nature from the date of issuance of this letter i.e. from 1.11.2021 and logically cannot be retrospectively allowed w.e.f. the date of issuance of RBE No.113/2009 dated 19.06.2009. If this change is allowed retrospectively, this would imply unsettling of the settled process of selections already finalised in the past under the policy of suitability cum seniority. This is certainly not the intention of these instructions. Hence the contention of the applicants that reference to "these orders" in this letter implies a reference to RBE No.113/2009 dated 19.06.2009 is neither correct nor logical and cannot be countenanced.
18. After perusal of the pleadings hearing the learned counsel for the parties, it is amply clear that the selection process for the post of Chief Loco Inspector as per notification dated 19.05.2020 was based on the criterion of "suitability cum seniority" as laid down in RBE No.108/2019 dated 3.07.2019. This implied that once the suitable applicants, which had qualified as per the prescribed criterion, had been filtered out by the selection process (on the basis of having at least 60% marks in the written examination and service record as assessed by the DPC), then the panel was prepared on the basis 7 OA.No.170/00316/2021/CAT/BANGALORE of the inter-se seniority amongst these suitable candidates on the criteria of suitability cum seniority. Hence, it cannot be countenanced that the process followed was not as per the selection process which was notified and informed to all the applicants. The preparation of the selection panel, therefore, cannot be faulted on the ground that it is not prepared on the basis of merit i.e. marks obtained by the candidates in the entire selection process. After having willingly participated in the entire process, the applicants cannot now turn and challenge the selection process on this ground, at this stage.
19. It has also been clarified by the respondents vide their letter dated 01.11.2021 RBE No.80/2021 that in future selections, instructions as provided for in RBE No.113/2009, which specify the policy of preparation of panel on the principle of merit based on aggregate marks of professional ability and record of service will be followed, in the case of selection for the post of Chief Loco Inspector as well.
20. It is noticed that in pursuance of this letter, a subsequent selection process for filling up of the post of five Chief Loco Inspectors was notified vide letter dated 23.11.2021. In this letter, it has been clarified specifically that in terms of Railway Board letter dated 19.6.2009 (RBE No.113/2009), the final panel shall be drawn in the order of merit based on aggregate marks of professional ability and record of service, provided that the candidate secures a minimum of 60% marks in the professional ability and 60% marks in the aggregate for being placed in the panel.8
OA.No.170/00316/2021/CAT/BANGALORE
21. It has also been stated by the respondents in their additional reply that subsequent to this notification, selection panel for the posts of five Chief Loco Inspector was also finalised and notified on 21.7.2022 vide which the applicant at Sl.No.1 has been placed in the panel based on his merit.
22. Keeping the above points in view, there is no merit in the OA seeking amendment of the selection dated 02.2.2021 on the basis of marks secured in aggregate by the applicants, instead of the basis of suitability cum seniority."
8. In view of the aforesaid, the principles of res judicata applies in the present case. In the light of the order referred to above, the issues involved herein being already dealt with, no further adjudication on the same issues are warranted. Hence, we find no substance in the application.
9. In the result, OA stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/