Central Administrative Tribunal - Delhi
Shri Nadeem Ahmed vs Union Of India : Through on 16 July, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO. 2108/2007 MAs 2113/08 & 2114/08 WITH O.A. NO. 421/2008 New Delhi, this the 16th day of July, 2009 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) OA 2108/2007: 1. Shri Nadeem Ahmed S/o Shri Ayub Ahmed, R/o R-139/2, Gali No.7, Ganesh Park, Laxmi Nagar, Delhi 2. Girish Kumar, S/o Shri Kishan Lal, R/o 5-D, Sourbah Vihar, Jaitpur Road, New Delhi 110 044 3. Khan Miraz Afgani, S/o M.A. Khan, R/o 25-E, S-Block, East Railway Colony, Faridabad (Haryana) 4. Radhey Shyam Singh, Shri Raj Kumar Singh, R/o 140-D Railway Colony, Panipat Applicants (By Advocate: Shri B.S. Mainee) Versus Union of India : Through 1. General Manager, Baroda House New Delhi 2. Divisional Railway Manager, State Entry Road, New Delhi 3. Sr. DEE (TRD), DRMs Office, State Entry Road, New Delhi 4. Sh. Nand Dayal Ram, Helper Khallasi, OHE / NR / Faridabad 5. Sh. Jai Hind Pal, Helper Khallasi, TRD / Rly. Stn./NDLS 6. Shri Dev Charan Singh Helper Khallasi Rly. Stn. PNP 7. Sh. Roop Lal, Helper Khallasi, OHE / NR / Patel Nagar [Respondents Nos. 3 to 7 to be served through DRM, New Delhi] Respondents (By Advocate: Shri P.K. Yadav & Ms. Pushpa Mishra) OA 421/2008: Shri Kailash Chand Gurjar, S/o Shri Chiranji Lal, ESM-I under Sr. section Engineer, Meerut Cantt Applicant (By Advocate: Shri B.S. Mainee) Versus Union of India : Through 1. General Manager Northern Railway, Headquarters Office, Baroda House New Delhi 2. Divisional Railway Manager, Northern Railway, Delhi Division State Entry Road, New Delhi 3. Divisional Personnel Officer, Northern Railway, Delhi Division, State Entry Road, New Delhi 4. Shri Kamal Singh, S/o Shri R.P. Singh, SM-I under DRM / DLI 5. Shri S.K. Malhotra, S/o Shri K.L. Malhotra, SM-I under DRM/DLI 6. Shri D.K. Jain, S/o Shri S.C. Jain, SM-I under DRM / DLI 7. Shri R.C. Dahiya, S/o Shri D.S. Dahiya, SM-I under DRM / DLI 8. Mohd. Nizammuddin, S/o M. Idrist, SM-I under DRM / DLI 9. Shri Nem Chand, S/o Shri Har Chand SM-I under DRM / DLI (Service to R-4 to R-9 through DRM, Northern Railway, State Entry Road, New Delhi) Respondents (By Advocate: Shri P.K. Yadav & Ms. Pushpa Mishra) O R D E R By Dr. Veena Chhotray, Member (A):
As both these OAs involve a common question of law i.e. the vires of the determinative factor of seniority in promotions by way of general selection from different feeder categories they are being disposed by this common order. The issue is squarely covered by the ratio in the decision of the Honble High Court of Punjab & Haryana in Civil Writ Petition No.4746-CAT of 2002 [Subhash Chand Joshi & Ors vs. Union of India & Ors] decided on 09.04.2008. Further, it is also covered by the decision of the Hyderabad Bench of this Tribunal in OA No.607 of 2007, C.V. Naga Laxman vs. The Chairman, Railway Board & Ors [AISLJ 2009(2)(CAT) 64] decided on 26.8.2008.
2.1 Before dealing with the specific facts of the present OAs, we would briefly state the background on the subject. The provisions under the Indian Railway Establishment Manual (IREM) vide para 219 (g) & (i) prescribe the procedures for conducting selections, including the drawing up of the final panel, for filling up general selection posts. The general selection posts are such posts as are outside the normal channel of promotion for which eligible staff of different cadres/departments are called. While stipulating the procedures for making such selections the IREM provisions had also envisaged awarding certain marks for seniority. This was, however, assailed before the Apex Court in N. Ramjayaram vs. General Manager, South Central Railway & Ors, 1996 (1) SC SLJ 536. While dealing with a case of impugned selection for appointment to the post of Law Assistant, the Honble Apex Court had held it illegal to award marks for seniority. Consequently the Railway Board vide the R.B.E. 263/98 [No. E(NG)I-98/PM1/II, dated 16.11.98], issued revised instructions and modified the procedures for filling up general selection posts. In the revised instructions, it was stipulated that marks for seniority were not to be awarded. However, para 2 (ii) of these instructions stipulates as follows:-
(ii) The final panel will be drawn up from amongst those securing 60% marks in the professional ability and 60% marks in the aggregate, in the order of seniority provided that those securing a total of more than 80% marks will be classed as outstanding and placed on the top of the panel in order of seniority. 2.2 In the aforesaid cases before the Honble High Court of Punjab & Haryana as well as before the Hyderabad Bench of this Tribunal the issue assailed was the final selection of the qualifying candidates who had obtained the prescribed minimum 60% marks, on the basis of their seniority in their respective cadres while ignoring the claims of those securing higher marks. In Subhash Chand Joshi & Ors (supra), the Petitioners were Electrical Signal Maintainers Grade-I/Grade-II claiming selection to the post of Signal Inspector Grade-III against 20% Intermediate Quota. However, despite obtaining higher marks in the selection tests, they had been overlooked in the matters of promotion on the basis of inter-se-seniority. This decision was struck down by the Honble High Court, which held the following:-
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. (emphasis supplied) 2.3 In C.V. Naga Laxman (supra), the Application had been filed challenging the panel prepared for the post of Law Assistant, again involving serving employees from different departments. In this case also the O.A. had been allowed and the Railway Boards O.M. dated 16.11.1998 was struck down as illegal. The relevant extracts from the final operative directions in para 20 of the order are cited below:
(i) The amendments to Rule 219 (j)(iii) vide Railway Boards letter No.E (NG) 1-90/pm/11 dated 16.11.1998 and the Serial Circular No.12/99 insofar as they relate to selection for general posts on the basis of seniority of qualified candidates for which candidates are called from different categories whether in the same department or from different departments and where there is no preparation of integrated seniority list are illegal and contemptuous of Honble Supreme Courts order in Civil W.P. 2398/99 and the orders of this Tribunal in O.As 276/96 and 6/2000;
3. Both the present OAs are covered by the ratios in Subash Chand Joshis case as well as in C.V. Naga Laxmans case. As there is no decision of the Delhi High Court or the Apex Court on this point, we are bound by the ratio in Subash Chand Joshis case. Further this is supported by the view taken by a Coordinate Bench of this Tribunal in C.V. Naga Laxmans case, which also is binding on us as per the doctrine of precedent.
4. In OA 421/2008 [Kailash Chand Gurjan vs. UOI & Ors], the applicant working as an Electric Signal Maintainer (ESM) Grade-I under the Senior Section Engineer, Meerut Cantt, Northern Railway, is challenging his non-selection for the post of Junior Engineer Grade-II under the 20% Intermediate quota despite his having qualified the written test. The OA challenges Respondents order dated 14.12.2007 declaring the results of selection and placing six candidates on the provisional panel, which does not include the applicants name. The OA avers that on coming to know that the panel had been prepared on the basis of seniority, the applicant had represented to the respondents to include his name in the panel if he had secured more marks (Annexure A/8). However, this was not responded to.
5. In OA 2108/2007 [Shri Nadeem Ahmed vs. UOI & Ors], the applicants working as Khallasis/Helper Khallasis are challenging their non-selection for the post of Technician Grade-III under the 25% quota to be filled through competitive examination from semi-skilled and unskilled staff, who are at least matriculate with three years of service. In this in response to an RTI application it came to be revealed that many of the selected candidates in the panel had secured less marks than the applicants (paras 4.11, 4.12 read with Annexure A/3). In this OA also the applicants have challenged the impugned order of the respondents dated 7.11.2007 declaring the results of provisional panel in the Tech.-III posts. The names of the applicants have not been included in this panel despite securing more marks than some of the listed candidates. Besides, the amended OAs vide MA No.1829/2008 in OA 421/2008 and MA 1224/08 in OA 2108/07, as allowed vide Tribunals orders dated 27.4.2009 and 4.5.2009 challenge the relevant Railway Board Circular dated 16.11.1998.
In the interest of justice impleadment of private respondents in OA No.421/2008 was also directed vide Tribunals order dated 27.4.2009, which has been done. In the other OA this had originally been done.
6. We have heard both the learned counsels, Shri B.S. Mainee for the applicants and Shri P.K. Yadav for the Respondents. On behalf of the applicants, the argument would be that their cases are squarely covered by the decisions of the High Court of Punjab & Haryana as well as the Hyderabad Bench of this Tribunal. It would also be averred that the Respondents by their action are trying to introduce an element of seniority in the selection process, which is meant to be only on merit. The learned counsel Shri Yadav would, however, insist that as per the decision of the Apex Court in Ramjayarams case (supra), the authorities had not given any marks for seniority; on the other hand what they were considering was only the placement of the qualified candidates according to their inter-se seniority in their respective units, which was claimed to be in accordance with the 1998 Circular. The learned counsel would also draw our attention to another Circular of 2007 issued by the Railways reiterating that the names of the selected candidates to be arranged in the order of seniority except those who had secured a total of 80% or more marks.
In view of the clear decision by the Honble High Court of Punjab & Haryana on this point where judicial decision occupies the field, administrative instruction by way of the Circular cited before us would no more be operative. We also find that the OAs aver to the case of Parimal Singh (OA No. 552/1996) decided by a Coordinate Bench of this Tribunal. However, this case dealt with only the issue raised in Ramjayarams case (supra) and, therefore is not found to be applicable in the present case.
7. In view of the foregoing, we find that while entertaining these matters under the methodology of general selections, the Respondents are indirectly trying to introduce an element of seniority where there is no common seniority list, as the selection has to be done on the basis of merit only. This has been found to be untenable in Subash Chand Joshi as well as C.V. Naga Laxmans cases.
Accordingly, the OAs are allowed and Clause 2 of R.B.E. No.263/98 [No.E (NG)I-98/PMI/11 dated 16.11.98] is struck down. Further the impugned orders dated 07.11.2007 and 14.12.2007 in OA Nos. 2108/2007 and 421/2008 are also quashed and set aside and the Respondents are directed to hold review DPCs strictly in accordance with merit. Although we have set aside these impugned orders on a principle of law, however, in the interest of justice, before right of any person in the provisional panel get actually affected, they be put to notice by the official Respondent. These directions are to be complied within a period of three months from the date of passing of this order. There shall be no order as to costs.
With the above order, MAs also stand disposed of.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/