Central Administrative Tribunal - Jaipur
Farooq Hasan Son Of Samir At Present ... vs Union Of India Through General Manager on 11 May, 2011
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH Jaipur, this the 11th day of May, 2011 ORIGINAL APPLICATION NO. 76/2010 CORAM HONBLE MR. JUSTICE K.S. RATHORE, JUDICIAL MEMBER HONBLE MR. ANIL KUMAR, ADMINISTRATIVE MEMBER 1. Farooq Hasan son of Samir at present employed on the post of Senior Gangman under Chief Permanent Way Inspector, Indergarhy, West Central Railay, Kota Division, Rajasthan. 2. Islam son of Mohammed at present employed on the post of Trolleyman under Senior Section Engineer (N),Gangapur City, Western Central Railway, Kota Division, Rajasthan. 3. Pooran Das son of Kalu Das aged about 49 years at present employed on the post of Senior Khallasi under Sennior Section Engineer (PW) Shyamgarh, Western Central Railway, Kota Division, Rajasthan. 4. Abdul Majid son of Abdul Latif, at present employed on the post of Senior Khallasi under Chief Permanent Way Inspector Jhalawar, Western Central Railway, Kota Division, Rajasthan. 5. Abdul Latif son of Noor Khan at present employed on the post of Senior Khallasi under Senior Section Engineer (Tele) Shyamgarh,Western Central Raiwlay, Kota Division, Rajasthan. Address for correspondence: Nayala Road, Near Ayurvedic Hospital, Chaumahla, District Jhalawar, Rajasthan. ..Applicant (By Advocate: Mr. Shiv Kumar) VERSUS 1. Union of India through General Manager, Western Central Railway, Jabalpur (M.P.). 2. Divisional Railway Manager (Estt.), Western Central Railway, Kota Division, Kota, Rasthan. 3. Farook son of Rahmat at present employed on the post of Driver under (S)TM Kota through Assistant Personnel Officer, Western Central Railway, Kota. 4. Idd Mohammed son of Dayam Khan at present employed on the post of Driver at Bara through Assistant Personnel Officer, Western Central Railway, Kota. 5. Assin son of Hakim at present employed on the post of Driver under P Way Shyamgarh through Assistant Personnel officer, Western Central Railway, Kota. 6. Satnarain son of Teja at present employed on the post of Driver under P Way Indergarh through Assistant Personnel Officer, Western Central Railway, Kota. 7. Abdul Hakim son of Abdul Hamid at present employed on the post of Driver under P Way Vikramgarh Alot through Assistant Personnel Officer, Western Central Railway, Kota. 8. Mohammed Rasul son of Mohammed Hussain at present employed on the post of Driver at Mahidpur, Shyamgarh Kota through Assistant Personnel officer, Western Central Railway, Kota. ..Respondents (By Advocate: Ms. Sonal Singh proxy counsel to Mr. Alok Garg) ORDER (ORAL)
Brief facts of the case are that the applicants are employed on the post of Driver (RCRV-MMU), Western Central Railway, Kota Division, at various places. These vehicles are known as Rail cum Road Vehicle. The applicants were also given training for the said vehicle i.e. post of RCRV in zonal training school in Udaipur and the applicant have successfully completed their training and have passed the promotional course and refreshner course of RCRV driver post.
2. The respondents have issued notification dated 25.3.2009 for filling up 21 posts of RCRVMMU and the applicants being eligible applied for the same.
3. The respondents have issued eligibility list dated 16.06.2009 in the light of notification dated 25.3.2009 in which the names of the applicant does not find place in list A and the same find place in list B.
4. The eligibility has been prepared on the basis of combined seniority. By way of notification dated 25.03.2009, the respondents have notified for filing up 21 posts of Driver and persons from different categories have been called for selection. The present selection is by way of Limited departmental competitive examination for general category post in which persons having minimum qualification is eligible to appear in selection.
5. The respondents have called persons to appear in the selection from list A only and no one was called from list B and declared the result of the selection order dated 28.01.2010 (Annexure A/1) and also issued posting order vide order dated 29.01.2010 (Annexure A/3). Since the applicants were working on the post of Driver for the last so many years and have passed the training for the said post, they possess the requisite certificate issued by the competent authority and aggrieved by the action of the respondents, the applicants preferred this OA.
6. The main grievance of the applicant is that the eligibility has been prepared on the basis of combined seniority in gross contravention of rules as the respondents have issued notification for the post of driver General Category post and persons from different categories have been called to appear in the selection. According to the applicants, the seniority has no role where selection is conducted from different categories and no weightage can be given to seniority as the present selection is by way of limited departmental competitive examination.
7. Further challenge on the ground that the respondents have included the name of ineligible persons in the eligibility list dated 16.06.2009 and their names have been shown in A list. Even they do not fulfill the essential qualifications particularly condition No. 1 and 6 of the notification. (Annexure A/18) in which Principal of Zonal Training School has clearly written that low literacy persons should not be sent for training in future. Thus this fact reveals that the present requires literacy and that is why condition No. 1 is there, which specifically say that person should know how to read and write English and Hindi but the respondents called illiterate persons in selection, which violates condition no. 1 of the notification. Even some of the eligible persons whose names have been shown in list A do not fulfill condition No. 6 of the notification including private respondents also which say that person should necessarily have general knowledge of repairing of jeep/truck and other vehicle. This can be seen from the fact that all the eligible persons are holding different kind of post, which is nowhere related to the work of Driver. Their nature of post, which they are holding, is altogether different and they no occasion to do the repairing job of jeep/truck and other vehicle.
8. Challenging the impugned orders of selection (Annexure A/1) and posting order (Annexure A/2), the applicant have sought the following reliefs:-
(i) That the respondents may please be directed to considering the candidature of applicant for the post of RCRV-MUM Truck Driver pay scale Rs.5200-20200 + 1900 grade pay in pursuance to notification dated 25.3.2009 (Annexure A/4) and further impugned eligibility list dated 16.6.2009 (Annexure A/2) may please be declared illegal, arbitrary and the same may please be modified by deleting the names of ineligible persons and further the appointment of private respondents may please be quashed. Further the impugned order dated 28.01.2010 (Annexure A/1) may please be quashed so far it relates to the appointment of ineligible persons. Further the respondents may please be directed to produce relevant record. The Original application may please be allowed with all consequential benefits.
(ii) Any other order/direction may please be passed in favour of the applicant who may be deemed fit just and proper under facts and circumstances of the case.
(iii)The cost of original application may please be awarded.
9. Per contra, learned counsel for the respondents had submitted that the applicants are working in the in pay scale of Rs.5200-20200 + 1800 and no order has been passed to take the work of RCRVMMU on a regular basis. It is wrong to say that the applicants are employed on a regular basis. The applicants are working purely on ad hoc basis till the regular candidates were made available to work on the post of RCRVMMU. It is also contended that inter se seniority has rightly been prepared and the name of the applicants were listed in list B. The post of RCRVMMU is a work charged post to be filed by eligible candidates who have cleared the trade test. The applications were invited from all the Group D employees working the pay scale of Rs.5200-20200 + 1800 from various departments. The interse seniority was then prepared of the eligible candidates and the same was rightly issued vide order dated 16.06.2009 and eligible candidates in the zone of consideration for conduction of trade test were placed in list A; and the rest candidates were placed in list B. If a candidates in list A would have given his dissent, the eligible candidates from list B would have been called for taking the trade test. However, none of the candidates from list A gave their dissent and hence no candidate from list B was called for the trade test.
10. Learned counsel for the applicant in support of his contention referred to selection procedure for promotion to General Selection Posts issued by the Ministry of Railway Board, New Delhi dated 19.06.2009 and also RBE No. 263/98, the procedure for filling up general selection post wherein it is held that:-
In terms of provisions contained in para 219(g) and (i) of Indian Railway Establishment Manual, the procedure for conducting the selections including the drawing up of the final panel, for filling up general selection post i.e. those outside the normal channel or promotion for which eligible staff of different categories/departments are called, is the same as that applicable to the selections held for filling up selection post in the normal channel of promotion as laid down in sub-paras (g), (h) and (i) of para ibid.
11. Learned counsel for the applicant also referred to Master Circular No. 43 Trade Test for Promotion in Artisan categories in which clause 2.5(i) reads as under:-
2.5(i) Employees equal to the number of vacancies should be called for trade test. If sufficient number of suitable candidates is not available, further candidates to meet the short fall may be called up in continuation and so on, but the whole process should be completed within six months. If this period is exceeded, it will be treated as a fresh trade test. Those who failed in the earlier test should be eligible to appear in trade test held after expiry of six months period. The period of six months is to be reckoned from the date of announcement of the result.
12. In support of this submission, learned counsel for the applicant also placed reliance on the judgment rendered by the Hyderabad Bench of the Tribunal in OA No. 607/2007 decided on 26.08.2008 and judgment passed by this Tribunal in OA No. 464/2007 decided on 25.07.2007 and the Judgment of Honble Punjab & Haryana High court in the case of Subhash Chand Joshi & Others vs. Union of India & Others, 2008(2) SCT 787 and judgment of the Honble Supreme Court in the case of M. Ramjayaram vs. General Manager, South Central Railway & Others, 1996 (8) SCC 266.
13. We have thoroughly considered the submission made on behalf of the applicant and Railway order and circulars referred before us. The emphasis given by the applicant is on the judgment of the Apex Court in the case of M. Ramjayaram. The controversy before the Honble Apex Court was whether the consistent respondents are entitled to be given preferential 15 marks over the appellant in selection as Law Assistants. The Honble Supreme court consider Rule 219(g) of the Railway Establishment Code which provides the procedure for selection on the basis of overall merit. As per the provision of Rule 219(g) of the Indian Railway Establishment code which suggests that 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 their relative weightage are laid down as below:-
Maximum Marks Qualifying marks
(i) Professional Ability 50 30
(ii) Personality, address leadership and academic qualification
(iii) A record of service 15 -----
(iv) Seniority 15 ------
The Honble Supreme Court in this case has held as under:-
In this case since the contesting the respondents are not from the same but of different units, Rule 320 stands excluded, weightate of 15 marks for seniority given to the respondent obviously is illegal. Therefore, there is no force in the contention of the applicant that his non-selection tantamounts to arbitrary exercise of power on the part of respondents 1 and 2. We set aside the order of the CAT, Hyderabad Bench made in OC No. 1039 of 1992 dated 21.3.1995. The respondents are directed to consider the selection according to rules and make appointment according to law.
14. Taking advantage of the aforesaid observations made by the Honble Supreme Court in the case of M. Ramjayaram, learned counsel for the applicant submits that admittedly the applications were called from various departments and interse seniority has been prepared in contravention to the ratio decided by the Apex court in the aforesaid judgment.
15. This Tribunal in the case of Shiv Raj Solanki deciding the grievance of the applicant against the order dated 13.09.2004 (Annexure A/1) whereby the result of the selection of the post of Junior Engineer Grade II under LDCE 25% quota has been declared. This Tribunal observed that as the final list has been prepared strictly on the basis of seniority and not as per the marks obtained in the LDCE. The applicant has been informed by the authorities that although he has obtained higher marks than the selected candidates but being junior than the empanelled person, his name was not empanelled. The Tribunal gone through the original confidential record of the selection proceedings and verified the criteria followed in finalizing the panel for selection for the post of Junior Engineer Grade II (Electrical) scale Rs.5000-8000/- under LDCE quota and find that the action of the respondents by adopting a criteria, which is not in conformity with the LDCE procedure and not specified in the notification for holding the selection is arbitrary and not justified at all. Thus the respondents were directed to recast the panel of the successful candidates on the basis of total marks obtained in the LDCE and to promote the applicant to the post of Junior Engineer Grade II in case he finds place in the panel.
16. Hyderabad Bench of the Tribunal while disposing of the OA No. 607/2007 on dated 26.08.2008 observed that :-
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 Appeal No. 5085/96, Honble High court of Andhra Pradeshs order in WP 2398/99 and the order of this Tribunal in OAs 276/96 and 6/2000. The same view has been taken by the Honble Punjab & Haryana High Court that Promotion to the post of Signal Inspector Grade III Promotion Seniority- Promotion by selection on merit from different cadres excludes seniority Selection is on merit alone Merit alone would be relevant for determining the right of promotion There is no common seniority amongst different feeder cadres. Therefore, Clause (j) of Rule 219, which contemplates a panel in the order of seniority, is wholly illegal Clause (j) to Rule 219 struck down Panel and promotion directed to be made in accordance with merit of selection.
17. Learned counsel for the respondents in support of his submission referred to Indian Railway Establishment Manual Clause 4 Procedure for filling up non selection posts, which reads as under:-
4.1.1 These posts may be filled up by review of service records including performance in work, confidential report or by holding a written departmental test/trade test.
He further referred to clause 4.1.3, which reads as under
4.1.3 A senior most employee declared unfit to hold the post may be passed over by a junior man. A declaration of unfitness should, ordinarily, have been made sometime previous to the time, when promotion of an employee is being considered. (Para 212 (a& b) of IREM).
He also referred to clause 4.3(ii) 4.3(ii) Two lists one containing names of those who are eligible to appear in the first test and known as List A and the other list is the next equal number and known as list B may be notified. Staff from List B will be called for written test to the extent staff from List A fall short, fail, give unwillingness etc. (EPY 1026/ dated 29.9.80).
He further referred trade test clause 5.1.1 and 5.1.5 5.1.1 Passing the prescribed trade test is essential for an employee to be promoted to an artisan category. In exigencies of services an employee can be promoted and trade test conducted within a period of 6 weeks. Under no circumstances, this period can be increased.
5.1.5 Appeal against the trade test result lies to the Chairman, T.T.P. and CWE which may be made within 30 days of notification of result. No representation will be entertained for cancellation of select list of trade test/suitability test after 6 months from the date of notification of result of trade/suitability test. (EP1025/22 dated 5.4.73).
18. Learned counsel for the respondents also placed original record for our perusal. We perused the original records of the candidates whose names find in List A as well as List B. As per provisions 4.1.1, it is essential to examine the suitability of service record, performance in work and confidential report and upon perusal of ACRs and performances of candidates, we find that the candidates whose names find place in List A, are more meritorious in comparison to the candidates whose names find place in List B. As per clause 4.3(ii), two lists are to be prepared containing the names of those who are eligible to appear in the first test known as List A and other list is the next equal number and known as list B be notified. In accordance with these provisions, the respondents have notified list A and list B and candidates whose names included in the list B in the case of the applicants who will be called for written test to the extent staff from list A fall short, fail, give unwillingness etc. but in the instant case entire selection has been made out from list A and no candidate failed and given his unwillingness and also candidates against the vacancies has not fallen short. Therefore, names from list B has not been called for written test.
19. We have also considered that passing the prescribed trade is essential for an employee to be promoted to an artisan category as per clause 5.1.1 and Rules governing the promotion of Group C Staff (Chapter II) Rule 214(a) Non selection post will be filled by promotion of the senior most suitable Railway servant. Suitability whether an individual of a group of Railway Servants being determined by the authority competent to fill the posts on the basis of the record of service and/ or departmental tests if necessary. A senior Railway servant may be passed over only if he/she has been declared unfit for holding the post in question. A declaration of unfitness should ordinarily have been made sometime previous to the time when the promotion of the Railway Servant is being considered.
Rule 214(c)(ii) The number of eligible staff called for consideration should be equal to the number of existing vacancies plus those anticipated during the next four months due to normal wastage (i.e. retirement/superannuation), likely acceptance of request of voluntary retirement, staff approved to go on deputation to other units, staff already empanelled for the ex-cadre posts, creation of additional posts already sanctioned by the competent authority, and staff likely to go out on transfer to other Railways/ Divisions.
Rule 214 (c)(iii) Where non selection posts are filled from different categories of staff, no hard and fast limits need be prescribed as to the number of the candidates to be admitted from each eligible category. In cases where posts are to be filled on the quota basis it should be ensured that each category is adequately represented within the overall number of candidates called up. Employees passing the suitability test should only be placed in the select list. Employees not qualifying in the test should not be taken merely to make up the quota fixed.
20. Rule 215 of Rules governing the promotion of Group C Staff (Chapter II) is with regard to selection post and sub clause (a) to (e) reads as under:-
215 Selection Post
(a) Selection post shall be filled by a positive act of selection made with the help of Selection Boards from amongst the staff eligible for selection. The positive act of selection may consist of a written test and/or viva-voce test; in every case viva-voce being a must. The staff in the immediate lower grade with a minimum of 2 years service in that grade will only be eligible for promotion. The service for this purpose will include service, if any, rendered on ad hoc basis followed by regular service without break. The condition of two years service should stand fulfilled at the time of actual promotion and not necessarily at the stage of consideration.
(b) The selection for promotion to a selection post shall be made on the basis primarily of merits.
(c) Promotion to selection post shall be made by the competent authority in accordance with the recommendations of a Selection Board in the manner detailed in paragraph 216 below. If, in any case, such authority is unable to accept the recommendation, a reference shall be made to the General Manager, who may if necessary constitute a fresh Selection board at a higher level and whose decision in the matter shall be final.
(d) The Railway Board may adopt a procedure other than the one laid down in Para 216 below while deciding individual cases of hardship.
(e) Eligible staff upto 3 times the number of staff to be empanelled will be called for written and/or viva-voce test. The staff employed against fortuitous short term or stop gap promotion to the immediate lower grade in the manner otherwise than in accordance with the regular approved method of promotion will not be eligible for consideration. It is desirable to hold written test as part of a selection in respect of all initial selection grade post in the different channels of promotion, but in every case a viva-voce test shall be held. If a written test is proposed to be held, advance intimation shall be given to all eligible candidates.
21. Admittedly, the persons passed upon the selection is made as a non selection as non selection as per Rule 214(a) of Rules governing the promotion of Group C Staff (Chapter II) of Indian Railway Establishment Manual Vol. I. The respondents are required to fill the same vacancy as discussed hereinabove. Panel in view of the Railway Board decision was prepared and two lists were rightly been prepared. The names in List A find equal to the vacancies and upon perusal of service record, and on the basis of their performance of the candidates whose names find place in List A, their names have been rightly been placed in List A. After judging the suitability, they were given appointment on the aforesaid post. Since all the candidates were equal to the proposed vacancies, the question of calling the candidates from List B does not arise. The result of the trade test has been declared vide order dated 28.01.2010 (Annexure A/1) and on the basis of interse seniority and on the basis of result, appointments were made vide order dated 29.01.2010. Thus in view of the settled preposition of law, settled position cannot be unsettled at this stage, The judgments relied upon by the learned counsel for the applicant are not applicable to the facts and circumstances of this case. The present case is with regard to the non selection whereas the judgments referred to by the learned counsel for the applicant were with regard to the selection post. Therefore we find no illegality in the orders Annexure A/1, Annexure A/2 and Annexure A/3 and accordingly no interference whatsoever is called for. Consequently, the OA deserves to be dismissed being devoid of merit and is hereby dismissed with no order as to costs.
(ANIL KUMAR) (JUSTICE K.S. RATHORE) MEMBER (A) MEMBER (J) AHQ