Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs The Union Of India on 2 December, 2013
1 O.A.No.388/2010 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.388/2010 Monday, this the 2nd December, 2013 CORAM: HON'BLE SHRI SUDHIR KUMAR, MEMBER(A) HON'BLE SHRI A.J.ROHEE, MEMBER(J) Abdul Hamid Khan, Working as Assistant Sports Officer, Western Railway, Churchgate, Mumbai Residing at : 16A Flat No.303, Al-Rahmah, Millat Nagar Oshiwara, Andheri (W), Mumbai 400053. ... Applicant (By Advocate Shri S.V.Marne) VERSUS 1. The Union of India Through the Secretary, Ministry of Railways, Railway Board, Rail Bhavan, New Delhi 110 001. 2. General Manager, Western Railway, HQ Office, Churchgate, Mumbai. 3. Miss. Aparna Ghosh, Assistant Sports Officer, Railway Sports Promotion Board, 452, Raisina Road, Railway Bhavan, New Delhi 110001. 4. Mr.Sanjeev Chakravarthy Assistant Sports Officer, South Eastern Railway Sports Assn., 33/1, Jawaharlal Nehru Road, Kolkata 700071. 5. Miss.K.Saramma Assistant Sports Officer, furnicing Division, 2 O.A.No.388/2010 ICF, Sports Association, Perambur, Chennai-600038. ... Respondents (By Advocate Shri S.Ravi) O R D E R
Per Shri Sudhir Kumar, Member (A) The applicant of this case is before us aggrieved by the order dt. 4.5.2010 passed by R-1 through which the Government of India, Ministry of Railways, Railway Board, Deputy Director Establishment (Sports), has notified a fresh panel of Assistant Sports Officers Group `B' in place of the earlier panel formed in the year 2003, by revising it, and a fresh panel of posting numbers 10 to 20 has been issued, while the names of the applicant and 3 others have been de-panelled by paragraph 3.1 of the impugned order.
2. This case has had a chequered history. The respondents had first notified a panel of Assistant Sports Officers Group `B', consisting of 20 names, through their order dt. 28.8.2003, produced by the applicant at Annexure-A4, for promotion to the Group `B' pay scale Rs.7500-12000 ex-cadre posts of Assistant Sports Officers to be filled on transfer/deputation basis, on the basis of the recommendations of the DPC constituted for the formation of such a panel. The consequential orders of promotions and postings of the 20 named persons were issued vide letter dt. 29.8.2003, produced by the applicant at Annexure-A5 of the present OA. It was clarified in the paragraph 3 of the order 3 O.A.No.388/2010 of promotions and postings issued on 29.8.2003 that these postings will be ex-cadre, and promotions against these posts will not confer on the officers any right to claim automatic promotions to the Group `B' posts to which they may become eligible for consideration in their own respective cadres, and that these promotions will take effect from the date on which the incumbents take charge.
3. This order was partially modified on 5.5.2004 through Annexure-A6 in respect of the applicant, whose name was at Sl.No.11 in both the panel dt. 28.8.2003, and the order of promotions and postings dt. 29.8.2003, and the panelist at Sl.No.20, another Officer Mrs.Rekha Bhide on deputation to Konkan Railway Corporation Ltd. (KRCL, for short), was ordered to continue with KRCL. The posting orders of Assistant Sports Officers were further modified vide Annexure A7 dt. 18.10.2004 including the applicant, by which the applicant came to be posted as Assistant Sports Officer in the Western Railway, because of which, through Annexure-A8 dt. 21.10.2004, the applicant was relieved by the Central Railway and permitted to report to the General Manager, Western Railway, Churchgate, both at Mumbai. The Western Railway took him on their rolls through order dt. 27.10.2004 Annexure A9 and allowed him to exercise option under FR 22A or the Railway Rules 2017A(R-II) or under Rule 1313 R-II within one month 4 O.A.No.388/2010 from the date of his joining the promotional post.
4. Unknown to the applicant, an OA No.451/2003 had in the meanwhile been filed before the Lucknow Bench of this Tribunal by one Ms.Razia Zaidi, who was the resident of Lucknow with her father, praying to quash the very panel dt. 28.8.2003 Annexure-A4 which was finalised by the DPC constituted for the formation of the panel of Assistant Sports Officers Group `B'. She had filed this OA by naming the Union of India through Secretary, Railway Board as the first respondent, the Deputy Director Establishment (Sports), Railway Board, Rail Bhawan as the second respondent, and the General Manager, Northern Railway, Railway Board, Baroda House, New Delhi as the third respondent. The present applicant before us was named as as the private respondent R-4, and Ms.Bhaktavar Bhullar, whose name appeared at Sl.No.18 of the panel dt. 28.8.2003, as the private respondent R-5 and Ms.Madhu Yadav, whose name appeared at Sl.No.19 of the panel dt. 28.8.2003, as private respondent R-6. For the purpose of service of notice upon private respondents R-4, R-5 and R-6, it was mentioned that all three were working under the Respondent No.2 i.e. Additional Director Establishment (Sports) Railway Board, Rail Bhavan, New Delhi. It was submitted before us by the Ld. Counsel for the applicant that such service of notice of that case was never effected upon the applicant through the said 5 O.A.No.388/2010 Respondent No.2, and perhaps the same fate would have been of the notices meant for Ms.Bakhtavar Bhullar R-5, and Ms.Madhu Yadav R-6 of that OA No.451/2003 of Lucknow Bench.
5. In that OA, the said applicant Ms.Razia Zaidi had claimed that she had participated as a part of the Indian Hockey Team and had represented India at the World Cup, Asia Cup, Presidential Cup, Asian Cup and also won Gold and Bronze medals in Asian games. She had submitted before the Lucknow Bench that the private respondents R-4 to R-6 (the present applicant being private respondent R-4) had no such participation in world class tournaments and had no such achievements. She had, therefore, challenged the selection conducted by the DPC, and the selection of the three candidates R-4 to R-6 for the posts of Assistant Sports Officers when they had much lower sporting achievements as compared to herself, and had prayed that the selection be cancelled.
6. Counter affidavit was filed in that case by the official respondents before the Lucknow Bench stating that such selection for the post of Assistant Sports Officer is purely based on merit, which covers the aspects of the sports achievements, along with service records, and performance in the interview. It was submitted that therefore supporting achievement alone is not sufficient for the selection of the person, and 6 O.A.No.388/2010 they have to perform well in other areas also for the purpose of empanelment by the DPC. It was submitted by the official respondents that final selection of the candidates depends on as to who qualified the three segments i.e. professional ability, record of service and interview, and who also possess the required seniority position vis-a-vis other successful candidates, in order to be able to find a place in the final list of selected candidates. The official respondents pointed out before the Lucknow Bench that the applicant as the private respondent R-4 before the Lucknow Bench, and R-5 and R-6, all the three are quite senior to the applicant before the Lucknow Bench, Ms.Razia Zaidi, and by virtue of their being senior, and having obtained more qualifying marks in professional ability, record of service, and interview, they were able to get selected for inclusion in the panel. Since such selection is based on overall merit, the sporting achievement is only one of the aspects of which is included in the merit criteria. The official respondents, therefore, defended the selection made by the DPC in the year 2003 (Annexure-A4) of the OA.
7. The concurrent Lucknow Bench of the Tribunal which decided the said OA No.451/2003 on 18.7.2007 considered all the pleadings and arguments made before it by the applicant and the official respondents, and framed the following four issues in paragraph 11 of its Judgment, 7 O.A.No.388/2010 without noting at all that the private respondents R-4 to R-6 before it had not been served notice of the case :
"I. Whether sports achievements alone is suficient to constitute the criteria of merit and it also required other accepts of service record and performance in interview.
II. Whether the selection of the candidates for the post of Assistant Sports Officer result was made basing on seniority but not the criteria of merit and what is the effect of it.
III. Whether the impugned selection order Annexure1 dt. 28.8.2003 is liable to be quashed. IV. To what relief".
8. The issue No.1 was decided against the applicant there. The issues No.2 and 3 were not taken up for discussion altogether in the Bench Judgment. As per paragraphs 17 to 25, the case was decided partly in favour of the applicant of the OA, to the extent of quashing the list of selection of candidates in the select panel of 28.8.2003 from Sl.Nos.10 to 20, and. as a result, the OA was partly allowed, with direction to the respondents to constitute a fresh DPC, and finalise the list based on the criteria of merit, and also toconsider the claim of the applicant for her selection within the parameters adopted for the process of selection of the candidates at Sl. Nos.1 to 9. The Bench had recorded its findings as follows :"
17. Point no.II and III :-These two points are interlinked with each other, hence discussed commonly. It is the main contention of the applicant that the selection was made basing on the criteria of seniority but not on merits and thus 8 O.A.No.388/2010 questioned the validity of impugned selection of the candidates under Annexure-1.
18. Though the respondents denied such allegations of the applicant, the particulars furnished by them clearly shows that the selection of candidates Sl.No.1 to 9 in the list (Annexure-1) secured 80% or more and the remaining 11 candidates who secured 60% or more in the overall and they have been chosen in accordance with their seniority. From this it is clear that only Sl.No.1 to 9 are selected on merits i.e. in the overall performance (Professional achievements, service record and interview) and the remaining candidates who secured qualified marks are taken on seniority basis.
19. On perusal of the records some of the candidates secured marks 79, 78, 75, 73 by way of their overall performance but they were not selected. But some of the candidates who secured marks 62, 64 and 65 got selected in Annexure-1 basing on the criteria of seniority.
20. By ignoring the candidates who secured more marks in overall performance of three segments which was adopted for selection of the candidates, selecting the candidates who secured marks in overall performance, clearly supports the arguments of the applicant that the selection of some of the candidates was made basing on seniority criteria.
21. The selection committee, which took decision to select the candidates from the qualified list basing on the seniority and selected such candidates, who are shown in Annexure-1 from Sl.No.11 to 20. The respondents also admitted in their Supplementary Counter Affidavit that there is no set of procedure prescribed for the selection in the rules. For such selection method of seniority-cum-selection it is also their contention that the selection committee adopted such procedure, basis on the selection for the post of Assistant Sports Officers. But no such material placed to show such instances and as such the same is not valid argument.
22. It is also not the case of the respondents that they have informed such procedure or practice of selection method of seniority-cum-selection to the candidates at any time and no such reference was made in the notification (Annexure-3) without any rules and without intimation in the notification, adopting such procedure keeping the candidates in dark is nothing but violation of principles of natural justice.
23. Further selection one set of candidates basing on merit and another set of candidates on different 9 O.A.No.388/2010 yardstick, ignoring merit is nothing but discriminating and such procedure is undesirable and unwarranted and it will lead to demoralization in the candidates, which is not desirable in any field more particularly in the field of sports.
24. In view of the above circumstances and from the records produced by the respondent department clearly establishing that the procedure adopted by the selection committee for selecting the candidates is not uniform and not in accordance with any of the rules or procedure. No such powers are conferred on the selection committee, to adopt different yardsticks, for selection of the candidates after finalization of selection in accordance with Board Circular dt. 29.4.1963.
25. In view of the above circumstances, we are of the considered view that the selection of the candidates from Sl.No.10 to 20 in the selection list Annexure-1 Dt. 28.8.2003 seniority based is not in accordance with any rules and procedure and due to which the meritorious candidates, who secured more marks lost their opportunity and as such the panel, empanelling the list from Sl.No.10 to 20 in Annexure-1 is liable to be quashed. Coming to the selection of SL.No.1 to 9, which is in accordance with merit and as such, we are not interfering with selection of such candidates. Hence, these two points are partly decided in favour of the applicant, to the extent of quashing the list Annexure-1 of selection of candidates from Sl.No.10 to 20.
26. Point No.IV :-Point No.1 is decided against the applicant and Point No.II and III are decided partly in favour of the applicant, to the extent of quashing the list of selection of candidates shown in Annexure-1 from Sl.No.10 to 20".
9. The official respondents themselves were not satisfied with the judgment delivered by the Lucknow Bench, and, as pointed out above, the private respondent R-4 to R-6 of that OA were never made aware of the pendency of the OA itself, nor served a copy then of the judgment and order pronounced by Lucknow Bench on 18.7.2007. The official respondents, thereafter, carried the matter before the Hon'ble Lucknow Bench of the Allahabad High Court, and filed 10 O.A.No.388/2010 Writ Petition No.131 (Service Bench)/2009 Union of India & 2 Ors. v. Razia Zaidi and Central Administrative Tribunal, Lucknow Bench. When the Writ Petition came up before the Service Bench consisting of Hon'ble Justice U.K.Dhaon and Hon'ble Justice Dr.Satish Chandra on 27.1.2009, the Hon'ble High Court took specific notice of para 19 of the Judgment of the Lucknow Bench as reproduced above, and, without being informed about & noting the lack of service of notice of the OA on R-4 to R-6 therein, came to the conclusion that there was no illegality and infirmity in the judgment and order of the Lucknow Bench of this Tribunal impugned before the Hon'ble High Court, and the Writ Petition of the official respondents was, therefore, dismissed at the admission stage itself.
10. Once again, without bringing the applicant who was Respondent No.4 in the OA before the Lucknow Bench, and also the Private Respondents R-5 and R-6 therein into the picture, the official respondents themselves carried the matter further before the Hon'ble Apex Court in C.C. No.1184/ 2010 Union of India v. Razia Zaidi, which SLP was dismissed by the Apex Court on 1.2.2010, without giving any detailed judgment or orders.
11. Since we have not had the benefit of perusing the copies of the Writ Petition filed by the official respondents before the Hon'ble Lucknow Bench of the 11 O.A.No.388/2010 Allahabad High Court, and the SLP later filed by them before the Hon'ble Apex Court, we are not able to comment as to whether the official respondents had ever pointed out before either Hon'ble Lucknow Bench of the Allahabad High Court, or before the Hon'ble Apex Court, that the order of the Lucknow Bench of this Tribunal based against the interests of the applicant as the private respondent R-4, and two other private respondents R-5 and R-6, and had been passed without even the service of notice of the OA upon them, or their having had an opportunity to file any counter reply to the said OA, for consideration by the Lucknow Bench of the Tribunal. If these facts had been brought to the notice of the Lucknow Bench of the Hon'ble Allahabad High Court, and to the notice of the Hon'ble Apex Court by the official respondents, perhaps the superior courts would have secured the service of notice upon the applicant and the other two private respondents even at that late stage, in the interest of justice, according to the principles of natural justice, and would not have passed any orders which may have binding effect upon the applicant as the un-served private respondent R-4 of the said OA, and the other two un-served private respondents R-5 and R-6 of the said OA.
12. We are only to say today that when the matter having travelled upto the Hon'ble Apex Court, and the 12 O.A.No.388/2010 SLP filed by the official respondents having been dismissed, and the Service Bench of the Hon'ble Lucknow Bench of the Allahabad High Court having on 27.1.2009 refused to interfere with the judgment and order of this Tribunal dt. 18.7.2007, the official respondents became duty bound to change the panel dt. 28.8.2003, even without the applicant and the other two private respondents of that OA not having had the occasion to have any say in the matter at any stage of the proceedings before the Lucknow Bench of the Tribunal, or before the Hon'ble Lucknow Bench of the Allahabad High Court, or before the Hon'ble Apex Court, where the SLP of the official respondents was dismissed.
13. Having been thus duty-bound to implement the order of the Lucknow Bench of the Tribunal dt. 18.7.2007 as above, the official respondents have, after dismissal of their SLP by the Hon'ble Apex Court on 1.2.2010, passed the order dated 4.5.2010 impugned by the applicant in the present OA before us.
14. The applicant is now, therefore, before us, seeking to undo the damage caused to his interests behind his back, in violation of the principles of natural justice. He has pointed out that since the order of the Lucknow Bench had affected two other persons Ms.Bhaktavar Bhullar and Ms.Madhu Yadav also, who were R-5 and R-6 in the OA before the Lucknow Bench of the Tribunal, one of those two individuals had later 13 O.A.No.388/2010 filed a separate OA, challenging the same impugned order dt. 4.5.2010, with which we are concerned.
Ms.Madhu Yadav had filed OA No.364/2010 before the Jabalpur Bench of this Tribunal, which on 6.5.2010 admitted the OA, and recorded its orders on 6.5.2010 as follows :
" On being mentioned by Shri Manoj Sharma learned counsel representing the Applicant (made in presence of the Shri M.N.Banerjee, learned counsel for railway) this matter is taken up.
2. The Applicant who is an outstanding hockety personality of India and conferred with Arjun Award, has been de-paneled by the impugned order under Annexure A-1 dated 4.5.2010, and as a consequence, she is apprehending termination from the post of Assistant Sports Officer, (Group `B'/Gazetted), in which post of she is continuing since 2003. In the said premises she has rushed to this Tribunal with the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
3. Heard Mr.Manoj Kumar Sharma learned counsel appearing for the Applicant and Mr.M.N.Banerjee, learned standing counsel for the Railway (to whom copy of this O.A. has already been supplied) and perused the materials placed on record.
4. On perusal of the materials placed on record and after hearing learned counsel of both sides, we have found a prima facie case of gross violation of principles of natural justice and therefore, this case is Admitted. Registry to issue notice to the Respondents, requiring them to file their reply within 30 days of the receipt of notice.
5. As an ad-interim measure, the status of the Applicant as Assistant Sports Officer (Group `B'/Gazetted) is directed to be maintained by the Respondents and as a consequence, the Respondents should allow the Applicant to continue as Assistant Sports Officer (Group-`B'/Gazetted) until further orders and she should not be disturbed from the post of Assistant Sports Officer (Group `B' Gazetted) without leave of this Tribunal.
6. Call this matter for order on 8.7.2010.
7. Send copies of this order to the Applicant and to the Respondents (along with notices) in the 14 O.A.No.388/2010 addresses given in the O.A. Free copies of this order be also supplied to the learned counsel appearing for the parties".
15. This OA was ultimately disposed of by the Jabalpur Bench of this Tribunal on 25.3.2011 through a detailed 12 pages' order, recording a finding that the official respondents had not followed their own rules, and did not apply their mind to the ground realities while passing the impugned order dt. 4.5.2010, and the matter was remitted back to the official respondents, to reconsider the matter afresh, in accordance with the rules as laid down in the Indian Railway Establishment Manual (IREM, for short), and the interim order passed earlier on 6.5.2010, as reproduced above, was made absolute. There is no record of any challenge to this impugned order by Ms.Bakhtavar Bhullar, private respondent R-56 before the Lucknow Bench of this Tribunal.
16. Since the impugned order dt. 4.5.2010 had resulted in the de-panelment of one Shri Raj Kumar also, apart from the applicant, Ms.Madhu Yadav and Ms.Padmini Thomas, the said Shri Raj Kumar had filed another OA No.252/2010 before the Jaipur Bench of this Tribunal. The judgment and order dt. 25.3.2011 of the Jabalpur Bench of this Tribunal in OA No.364/2010 was cited before the Jaipur Bench while presenting the said OA No.252/2010 before the Jaipur Bench, and a prayer was made that in pari materia of the orders passed by the Jabalpur Bench, the matter of Shri Raj Kumar may also 15 O.A.No.388/2010 be remitted back to the official respondents to reconsider the same in accordance with the rules of the IREM. Even the counsel appearing for official respondents conceded this request, and agreed before the Jaipur Bench that the OA before it can be disposed of with a direction to the official respondents to reconsider the matter afresh, in accordance with the rules as contained in the IREM. The Jaipur Bench agreed with the suggestions, and remitted the case of Shri Raj Kumar also for consideration afresh, in accordance with the Rules of the IREM, after giving opportunity to that applicant to file a fresh representation before the respondents, after submitting all sorts of legal and factual arguments, and disposed of the OA on 13.9.2012.
17. The official respondents have tried to justify the actions taken by them, stating that once the Review DPC meeting was held to comply with the orders of the Lucknow Bench of the Tribunal after dismissal of SLP by the Hon'ble Apex Court, it was decided to arrange the candidates who had secured below the outstanding cut off (80% marks) in a descending order of merit, so as to find out the most deserving and meritorious sports persons based on the marks obtained by them in the proceedings of the earlier DPC. In this process, it was noticed that there were 5 candidates, all with 70 marks. However, including all of them would have taken 16 O.A.No.388/2010 the panel beyond Sl. No.20, which was beyond the purview of the Review DPC. Therefore, the three seniormost applicants in age with 70% marks were placed in the panel, while the other two were dropped. Thus, despite merit being the key factor in selecting the candidates in this manner, and placing them in the order of their seniority, seniority also became a key factor in selection of the candidates.
18. In the earlier DPC, when all candidates securing 60% marks or above had been placed in the panel at Sl.Nos.11 to 20 in the order of their seniority, it had resulted in a number of persons getting selected, whereas even a person getting 79 marks could not get a place in the panel, as she/he was junior. The Review DPC had therefore recommended a revised panel of candidates from Sl.No.10 to 20 in the following manner, by over-laying seniority over the marks obtained, and not by seniority alone in respect of all those who had qualified with 60% marks, as was earlier done by the original DPC. This resulted in the following position :POSITION IN THE PANEL NAME OF CANDIDATES SENIORIT Y POSITION MARKS OBTAINED 10 MS.SIRIRUPA BANERJEE 2 70 11 R.GNANSEKARAN 9 73 12 SAT PRAKASH 18 70 13 RAM KUMAR 22 79 17 O.A.No.388/2010 14 G.BALAMURLIDAR 24 75 15 MS.BHAKTVAR BHULLAR 32 72 16 GIAN SINGH 37 70 17 A.APARNA GHOSH 44 73 18 SANATH KUMAR MISHRA 55 75 19 SANIB CHAKRABORTY 63 78 20 K.SARAMMA 75 79
19. Since the applicant before us was a private party respondent in OA No.451/2003 before the Lucknow Bench, the official respondents denied that the order of the Lucknow Bench of the Tribunal was not binding upon him. But they failed to even assert that notices of that O.A. when issued by the Lucknow Bench had even been served upon R-4 to R-6.
20. Heard the matter at great detail. We have given our anxious consideration to the facts of this case. It is obvious that the order of the Lucknow Bench of the Tribunal was passed ex-parte against the applicant of this OA and two others as has been averred by Ms.Madhu Yadav also before the Jabalpur Bench of this Tribunal.
21. The implications of any departmental selection for promotions are determined by the nature and structure of that process of selection. Sometimes the Department may be conducting an examination, which may be open to both the existing Government employees, as well as, those who are open market candidates not yet in the category of Government employees at all. One example 18 O.A.No.388/2010 of such selection which we can think of is that of the Section Officers' Examination which was conducted earlier by the U.P.S.C. for entry into Section Officers' grade in the Central Secretariat Service. In that examination apart from Assistants' level examination selectees, and promotee Assistants, who had already joined on promotion as Assistants, apart from the LDCs and UDCs of Central Secretariat Clerical Service, were also permitted to apply and compete along with open market general unemployed candidates. In such a situation, when there is no fixed or identified feeder cadre of candidates, and candidates from various sources within the lower cadres are competing with the open market general unemployed candidates, there cannot be a concept of seniority in the lower level, which may be carried forward to the higher level, after appearing at any such selection examination.
22. However, when the nature of the departmental examination is such that it is a Limited Departmental Competitive Examination (LDCE, in short), and the LDCE is open only for the immediate next lower cadre, or two or many among the immediate next lower cadres, in such a situation of LDCE selections for promotions from within the feeder cadres of persons already in Government service at lower levels, the concept of the adjustment of their inter-se seniority after their having been successful at such an examination, at a 19 O.A.No.388/2010 particular level of merit-cumseniority, comes into picture. Therefore, it is the nature of the examination conducted for the purpose of promotion which determines as to how the selected candidates would be adjusted for the purpose of such promotions.
23. The judgment and order dated 05.09.2013 in the case of Birendra Kumar Mishra & Ors. vs. UOI & Ors. O.A. No.3596/2011 with O.A. No.475/2012 pronounced at the Principal Bench of this Tribunal has relied upon N.Ravindran and Ors. vs.Central Provident Fund Commissioner and Anr. {(1995) Supp 4 SCC 656}, in which case the Hon'ble Apex Court had followed its own earlier Judgment in the case of Regional Provident Fund Commissioner and Ors. vs. Ashok Mehta & Ors. {C.A. No.7274 in T.A. No.556/86 and it has been held that an LDCE, which is in the nature of an internal departmental examination, can be of two types, one in the nature of a competitive examination, and the other in the nature of a qualifying examination. Whenever the persons from the open market, who are not yet in the Government employment, are also permitted to compete along with existing Government servants at any departmental examination, the concept of merit list comes into the picture, and the result has to be declared in the form of a merit list, in order to do justice to the merit of the selected persons from among the open market candidates, who are not yet Government 20 O.A.No.388/2010 servants. However, in the case of an LDCE, appearance at which is restricted only to one or two or a given specified number of feeder lower cadres of Government servants, such examinations are generally in the nature of only qualifying examinations, and since they are in the nature of only qualifying examinations, there is no requirement or concept of any merit list being involved, and a merit list cannot and need not be prepared to declare the result of the LDCEs. What has to be declared is as to how many from among the feeder cadres have qualified the said LDCE examination. In the case of N.Ravindran & Ors. vs. Central Provident Fund Commissioner (supra) and earlier case of Regional Provident Fund Commissioner & Ors. vs. Ashok Mehta & Ors.(supra), it was held by the Hon'ble Supreme Court that when the Recruitment Rules prescribe that certain percentage of higher posts will be filled up through a process of selection from the lower feeder cadres, the persons who qualify at the LDCE have to be picked up on the basis of their relative inter-se seniority already accrued in their favour in the feeder cadre, and thus they carry their relative inter-se seniority in the lower cadre to the higher posts, and only that many number of qualified candidates who come within the number of required senior posts are ultimately bound to be promoted.
24. The Railway Rules as prescribed through Circular 21 O.A.No.388/2010 No.E(GP)61-II-49 dt. 29.4.1963 lay down the rules for promotions from Class-III to Class-II services, as produced by the respondents at Annexure-R4 (colly) prescribe the following selection procedure :
"(e) SELECTION PROCEDURE
(i) Marks should be awarded to candidates on the followingbasis:Max Marks Qualifying _________ Marks
(a)Professinal ability 50 30
(b)Record of Service 25 15
(c)Personality address, leadership and academic/ 25 15 technical qualifications Total: 100 60
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ii)Professional ability should normally be adjudged through a written test which should form part of the selection. (In the case of Medical Department, & practical test should also be held, the marks being divided equally between the written and practical tests. The General Manager may, however, waive the written test in the case of isolated posts if he is satisfied that such test is unnecessary or impracticable or, as in the case of the Accounts Department, where professional ability has already been tested through a comprehensive examination.
The question papers for the wtitten test should have a practical bias i.e. They should be designed to test the ability of candidates to tackle the practical theoretical knowledge.
(iii) Personality, address and qualities of leadership should be assessed at a viva-voce test. In case a written test is not held for adjudging professional ability, this also should be assessed at the viva-voce through questions with a practical bias.
(iv) Marks for record of service should be given on the basis of confidential Reports and relevant service records. Integrity of character should receive special consideration.
(v) The successful candidates should be listed in 22 O.A.No.388/2010 accordance with their seniority except that those securing 80% marks or more should be placed above the others, being classified as outstanding.
(vi) The recommendations of the Selection Board should be put up to the General Manager for approval. If the General Manager does not approve of them, he will record his reasons in writing and order a fresh selection. Once a panel is approved by the General Manager, no amendment should be made without the prior approval of the Board".
25. It is, therefore, clear that the examination or written test which forms part of the selection process for determining professional ability, carrying 50% maximum marks and 30% qualifying marks, is only in the nature of a "qualifying examination", and among those who qualify at the said examination by obtaining the minimum qualifying 30 marks or above, there can be no concept of a merit list being drawn in the descending order of marks of such candidates. The Railways have recognized this aspect, and the paragraph at (e)(v) cited above prescribes that the successful candidates should be listed in accordance with their seniority. The only exception that is made is that those whose performance is outstanding, i.e. those who have secured 80% marks or above, i.e. 40 marks of 50 at the written test conducted for testing professional ability, they are classified as "outstanding", and should be placed above all the others. But, even among them, even such "outstanding" candidates have to be listed in accordance with their seniority in their feeder cadres, and the same procedure has to be followed in the case of 23 O.A.No.388/2010 persons who have qualified at the professional ability written test by obtaining at least the minimum "qualifying" marks between 30 to 39 out of 50 maximum marks.
26. Thus, the Railway Rules prescribe that seniority in the lower feeder cadres remains a valid aspect both in the case of "outstanding" persons, who qualified with 80% marks or above, and among the others, who simply "qualified" the examination with 60% marks or above, by obtaining 30 or more marks out of 50 marks prescribed in the written test conducted for testing the professional ability. This prescription is correct, and in accordance with the ratio laid down by the Hon'ble Apex Court in N.Ravindran vs. Central Provident Fund Commissioner (supra), following its earlier judgment in Regional Provident Fund Commissioner vs. Ashok Mehta (supra). It is, therefore, clear that as a result of such an LDCE, it is the seniority in the lower feeder cadre which shall be the basis for picking up candidates out of all those who are "outstanding", or "qualify" at the professional ability written test, and that any other interpretation or prescription would be against the law of the land as laid down by the Hon'ble Apex Court.
27. There is a settled proposition of law that every bench of this Tribunal has to follow orders passed by a concurrent bench of this Tribunal. This was reiterated 24 O.A.No.388/2010 by the Hon'ble Apex Court also in the case of Sub- Inspector Roop Lal vs. Lt. Governor through the Chief Secretary, Delhi Government, Delhi : (JT 1999(9) SC
597). But, we are faced with a peculiar situation here that the orders passed by the Lucknow Bench of this Tribunal, which are contrary to the spirit and the ratio of the Hon'ble Apex Court Judgment in N.Ravindran vs. Central Provident Fund Commissioner (supra), have since been upheld by the Hon'ble Lucknow Bench of the Allahabad High Court, and the SLP filed against that Judgment has been dismissed. However, the Hon'ble Apex Court has itself held that dismissal of an SLP, without Hon'ble Apex Court passing a speaking order, does not mean an affirmation or upholding of the order passed by the High Court. However, the Lucknow Bench of this Tribunal did pass an order, and Lucknow Bench of Hon'ble Allahabad High Court did uphold it, and so the principle as ordered by the Lucknow Bench of the Tribunal has the stamp of approval of at least Lucknow Bench of Hon'ble Allahabad High Court, even though that order was passed ex-parte the private respondents R-4 to R-6, and is against the grain and spirit of the Hon'ble Apex Court's judgment in "N.Ravindran" (supra).
28. On the other hand, we have another co-ordinate bench judgment passed by the Jabalpur Bench of this Tribunal on 25.3.2011, which had taken note of the Lucknow Bench order having been upheld by the Lucknow 25 O.A.No.388/2010 Bench of the Hon'ble Allahabad High Court in a Writ Petition, and thereafter the SLP having been dismissed by the Hon'ble Apex Court, but has still gone ahead to state as follows :
"10. Normally, we would have dismissed the OA as being barred by principle of resjudicata / constructive resjudicata, as the Lucknow Bench of the Tribunal had, earlier examined the case and had adjudicated the matter, and further that only an application for review could have been considered only if any new material was brought to notice which could not have been so placed with due diligence earlier on and also if there was an error or mistake apparent on the face of record. However, we find that in review, the matter cannot be reagitated in order to bring out a fresh order on merits because the scope of review is limited and it is not possible for the forum hearing the review to act as an appellate authority (in respect of the original order) by a fresh order and rehearing of the matter to facilitate a change of opinion on merits, as held by the Hon#ble Supreme Court in Union of India Vs. Tarit Ranjan Das reported in 2004 SCC(L&S) 160. In Ajit Kumar Rath Vs. State of Orissa and Ors. {2000(2) SLJ 108}, the Apex Court has also held that a review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. In the instant case, we find that the Applicant has not only faced a new cause of action but has also introduced a new case to the effect that the relevant Recruitment Rules and provisions of the Indian Railway Establishment Manual etc. have completely been ignored by the Respondents, while passing the impugned order, and that the same has been passed simply as per the order of Lucknow Bench of the Tribunal, in which also there was no discussion about the relevant Recruitment Rules and provisions of the Indian Railway Establishment Manual etc. as to how the panel should be formed.
11. In the instant case we find that all the candidates placed in the original panel at serial nos.1 to 9 secured 80% (or more points) and the remaining candidates at Serial nos.10 to 20 (including the Applicant) who secured 60% (or more 26 O.A.No.388/2010 points) were placed in the panel according to their respective seniority (in terms of the relevant recruitment rules and as per the provisions of Para 204.8 & 204.9 of Volume I of the Indian Railway Establishment Manual) as can be seen in the table at para-above. However, while drawing fresh panel, the selection of the Applicant (who was placed at serial no.19 in the original panel) has been depanneled by the impugned order.
12. The Railway Board vide their letter No. E(G.P.)61/ PM2/49 dated 29.04.1963 provided the qualifying marks as 60 and further provided that successful candidates should be listed in accordance with their seniority except those securing 80% or more should be placed above, being classified as "outstanding". Railway Board (vide their letter No.E(Sports)2000/ Policy/3 dated 31.10.2000) also issued guidelines relating to promotion from Class-III to Class-II Service for filling up the posts of Assistant Sports Officer (Gr.B). Para 1 of the said letter reads thus:"
The Board have issued instructions from time to time bearing on the procedure to be followed in regard to Class-II Selection on Railway vide letter No. E(GP)61 PM-2-49 dated 24.9.1963 and No.E(GP) 76/2/96 dated 03.06.1977, 03.08.1977 & 05.02.1979. The rules framed in consultation with UPSC regulating the recruitment to the post of Assistant Sports Officers are laid down in the Railway Board's Notification 79-E(GR)-1/31/7 dated 21.3.1980 and further amended vide notification No.91-E(GR)/1/14/1 dated 10.12.1991. As per the notification these rules may be called Indian Railways (Assistant Sports Officer) Recruitment Rules 1980. They have come into force on the date of their publication in the gazette. The recruitment rules provide for filling up of posts of Assistant Sports Officer by promotion and transfer on deputation basis.
The consolidated instructions including amendments are summarized below:
i) Name of post, classification & scale of pay :
Assistant Sports Officer, Group 'B' Gazetted (Non- Ministerial) Rs.7500-12000 (RPS) xxxxxxxx xxxxxxxx
viii) The overall qualifying marks has been prescribed as 60%. The successful candidates have to be listed in accordance with their seniority except those securing 80% or more will be classified as 'Outstanding' and placed above 27 O.A.No.388/2010 others".
(emphasis supplied by us)
13. The relevant provisions of rules governing promotion to Group 'B' posts in the Railways are given in Indian Railway Establishment Manual, Volume 1, which are reproduced as under:-
204.8. The successful candidates shall be arranged as follows(
1) Those securing 80% marks and above graded as 'Outstanding'.
(2) 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' interse seniority within each group being maintained. (Emphasis supplied by us)
14. On perusal of the above provisions, we find that the rules framed in consultation with UPSC regulating the recruitment to the post of ASO, called as Indian Railways (Assistant Sports Officer) Recruitment Rules 1980, clearly provide the overall qualifying marks as 60% and that the successful candidates (having secured 60% or above) have to be listed in accordance with their seniority. Exceptions have been provided in the Rules that those securing 80% or more (being classified as 'Outstanding') are to be placed above other successful candidates. We also find that the provisions of Para 204.8 and 204.9 of Vol. I of the Indian Railway Establishment Manual, (supra) also clearly provides that the successful candidates shall be arranged in such a manner that Employees securing the gradation 'Outstanding' will be placed on top followed by those securing the gradation, 'good' interse seniority within each group being maintained. We find further that all these provisions in the relevant recruitment Rules and in the Indian Railway Establishment Manual had at all not been referred to nor discussed in aforesaid order of CAT/ Lucknow Bench dated 18.7.2007 rendered in OA 451/2003, and same is also the position in the order passed by the Hon#ble High Court of Judicature at Allahabad in W.P. No.131(S/B) of 2009 in order dated 27.01.2009, against which the SLP had been dismissed in limine. To state in other words the provisions of Rules & IREM, in question, have not been touched (nor held 28 O.A.No.388/2010 to be bad) by any judicial order. List was only asked to be re-drawn as was done in respect of Sl. Nos. 1 to 9. It is seen that inter se position of Sl. Nos. 1 to 9 was arranged in accordance with their seniority.
15. It is the settled position of law that where there is no discussion regarding applicability of the relevant local law on the subject rendered by the Supreme Court, it cannot be treated as a declaration of law under Article 141 due to similarity of the facts involved in the case wherein the local law is applicable {(We have been fortified by the decision rendered in) 1982 All LJ 833 : 1982 (8) ALL LR 489}. It is also well settled position of law that dismissal of SLP by one word order 'dismissal' does not attract Article 141 of the Constitution {1990 Lab.IC 986}. The Hon'ble Supreme Court in the case of Rajendra Kumar Srivastava Vs. Samyut Kshetariya Gramin Bank, {reported in (2010) 1 SCC 335} has clearly held that #What should be the minimum necessary merit for promotion, is a matter that is to be decided by the management, having in mind requirements of post to which promotions are to be made".
16. We also find that a similar controversy (as that of present one) was also raised before the Principal Bench of this Tribunal in the case of Ashok Dewan Vs. Union of India & others in OA No.1400/2004, which was decided on 3.6.2008, after examining the relevant Recruitment Rules (Circular) of 1963. Relevant extract of the said order reads as under:"
13. In order to confirm whether the selection has been made in accordance with the recruitment rules/norms/selection procedure adopted while considering the case of the applicant along with others, we have perused the relevant record produced by the official respondents and we find that the applicant's name and merit had been duly considered by the Selection Committee while drawing up the short list (out of the eligible candidates) of candidates for consideration in the final selection of ASO this was done taking into account the professional ability (50 marks), record of service (25) and personality address/leadership and academic/technical qualifications (25 marks). As per the selection procedure followed by the DPC this is also prescribed by the Railway Board vide its circular dated 29.04.1963, under sub- clause (v) of Clause (e) -the successful, i.e., qualified, candidates should be listed 29 O.A.No.388/2010 in accordance with their seniority except that those securing 80% marks or more, being classified as outstanding, should be placed above the others. In the present selection we find that as no person secured 80% marks or more, the criteria to be adopted was the inter-se seniority of the candidates declared as successful, i.e., qualified. It is seen that the persons, who had been finally recommended for being considered for posting as ASO in the selection, were senior to the applicant as their year of the seniority was 1984, whereas the applicant's seniority was thereafter. Hence, we do not find any infirmity/illegality in the said selection, and we cannot interfere as per the settled principle of law discussed above.
(emphasis supplied) A perusal of the above order of the Principal Bench of this Tribunal clearly shows that the Principal Bench did not find any infirmity/illegality in the said selection, because of the clear rule position.
17. ........(not reproduced here)
18. After considering all pros and cons of the entire matter, we are of the considered view that the Respondents have totally failed to follow the principles of relevant recruitment rules and provisions of IREM while passing the impugned order on 04.05.2010 and, therefore, in view of the settled legal position discussed above, the impugned order can not be sustained in the eyes of law.
19. ........(not reproduced here)
20. 20. Since, as discussed in the fore-going paragraphs, we have already found that the Respondents have not followed their rules and did not apply their mind to ground realities, while passing the instant impugned order dated 04.05.2010, we remit the matter to the Respondents to re-consider the matter afresh in accordance with Rules/IREM. The interim order passed earlier on 6.5.2010 is made absolute. The OA is accordingly disposed of. No cost.
21. ........(not reproduced here)
22. ........(not reproduced here)
23. ........(not reproduced here)"
29. This concurrent bench order of the Jabalpur Bench has 30 O.A.No.388/2010 also been followed since by the Jaipur Bench of this Tribunal in its order in OA No.242/2012, as already mentioned above. We are, therefore, faced with two sets of judgments, one of a co-ordinate bench of this Tribunal at Lucknow, which judgment has been affirmed by the Hon'ble Lucknow Bench of the Allahabad High Court, and the SLP in which was later dismissed by the Hon'ble Apex Court, and on the other hand, a set of two judgments of co-ordinate benches at Jabalpur and Jaipur. As mentioned above, the issue before our bench is as to with which order we should concur and go along with.
30. On examination of the points of law as discussed in the two sets of judgments of the Lucknow Bench of this Tribunal and the Lucknow Bench of Hon'ble Allahabad High Court, and of the Jabalpur and Jaipur Benches of this Tribunal, we find that even without citing the already settled case-laws on the aspect of LDCEs through Hon'ble Apex Court judgments in N.Ravindran & Ors. vs. Central Provident Fund Commissioner and Anr., and Regional Provident Fund Commissioner vs. Ashok Mehta (supra), the Jabalpur Bench of the Tribunal has gone about in the proper manner in appreciating the Law, Rules and Regulations, as ought to have been made applicable to the present fact situation.
31. Therefore, we are in respectful agreement with the Jabalpur and the Jaipur Benches of this Tribunal, who 31 O.A.No.388/2010 have passed the orders dt. 25.3.2011 in OA 364/2010, and dt. 13.09.2012 in OA No.252/2010 respectively, to state that any directions issued in the CAT Lucknow Bench order, which were contrary to the rules of recruitment as laid down in the IREM, which had not been even referred to in the CAT Lucknow Bench judgment, cannot be binding at all, even though the stamp of approval of the Lucknow Bench of Hon'ble Allahabad High Court may have been affixed thereupon later. Firstly, in the face of the weight of two judgments of the Hon'ble Apex Court laying down a principle of law to the contrary, even though not directly applicable, we do not feel to be bound down by the determination of law to the contrary by the Hon'ble Allahabad High Court's Lucknow Bench. Secondly, any judgment delivered or passed without even taking notice of the relevant principles of the Recruitment Rules and the provisions of the IREM, cannot be stated to be binding law upon other co-ordinate benches, more so when the said order was passed in total negation of principles of natural justice, inasmuch as, present applicant as private respondent R-4, and the other two respondents R-5 and R-6, were never even served notice of the pendency of the said OA, and did not get a chance to put forth their side of the case.
31. Therefore, following the interim orders passed by the Jabalpur Bench of the Tribunal dt. 6.5.2010, which 32 O.A.No.388/2010 were made absolute by the Bench while passing its final order dt. 25.3.2011, we also allow this OA, to the extent that in response to the prayers at 8 (b) and
(c), the respondents are restrained from reverting the applicant from the post of ASO, till the matter has been re-considered afresh in accordance with the rules as contained in IREM, as directed by the Jabalpur and the Jaipur Benches of this Tribunal. In view of these orders, there is no need to pass any other interim or final orders, and the OA is allowed in the light of the above observations, but, there shall be no order as to costs.
(A.J.ROHEE) (SUDHIR KUMAR) MEMBER (J) MEMBER (A) B.