Rajasthan High Court - Jaipur
The Only Argument Of The Learned Counsel ... vs Shri Shivraj Singh Solanki & Ors. (Db ... on 9 April, 2014
Author: Ajay Rastogi
Bench: Ajay Rastogi
The High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R D.B. Civil Writ Petition No.5631/2010 D.B. Civil Writ Petition No.7785/2010 D.B. Civil Writ Petition No.7786/2010 D.B. Civil Writ Petition No.18446/2011 Order reserved on :: 14/03/2014 Order pronounced on :: 09/04/2014 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice J.K. Ranka Mr. Sanjeev Prakash Sharma, Sr. Adv. with ] Mr. Gaurav Sharma Adv. ] Mr. Virendra Lodha, Sr. Adv. with ] Mr. Vinod Goyal Adv. ] Mr. Shiv S Ola Adv. ] for petitioners. Mr. CB Sharma Adv. ] Mr. Shailendra Srivastava Adv. ] Mr. Shailesh Prakash Sharma Adv. ] Mr. P.C. Sharma Adv. ] for respondents
Since common question of law is being raised in the instant bunch of petitions, hence are considered to be decided with consent of the parties by the present order.
The present writ petitions are directed against orders of Central Administrative Tribunal (Tribunal) where the basic question raised for consideration was as to what will be the mode of selection to be followed by respondent Railways while making appointment against 25% vacancies reserved to be filled by Limited Departmental Competitive Examination (LDCE).
At the very outset it was brought to the notice of this Court that earlier one Shivraj Singh Solanki & Vishnu Kumar Gautam filed their respective original applications in the year 2004 before the tribunal being aggrieved by result of their participation in the selection held for the post of Junior Engineer Grade-II against 25% LDCE quota & their objection was that in terms of relevant guidelines laid down by respondent Railways under their Railway Establishment Rules the posts in respective cadres are to be filled by 75% by promotion and 25% was reserved to be filled amongst in-service candidates by adopting mode of selection LDCE. Both the applicants were aggrieved by the decision of respondent Railway in making final selection of the candidates who qualified in LDCE held for the post of Junior Engineer Grade-II while the final panel was drawn on the basis of seniority in the feeder grade/cadre & subject matter of challenge before the Tribunal was that such of the applicants who had appeared against 25% LDCE quota the panel ought to have been prepared on the basis of marks which they originally secured in the examination on the basis of merit & seniority in the feeder cadre cannot be made a basis for preparation of final panel.
The learned Tribunal after hearing the parties held that panel of successful candidates has to be revised & prepared on the basis of marks having been secured in the examination under LDCE by the candidates & if finds place in the revised/reviewed panel, they will be entitled for grant of appointment along with consequential benefits, however, order of the Tribunal came to be challenged by the respondent Railways by filing DB Civil Writ Petitions No.979/09 & 981/09 & that came to be dismissed by the Division Bench of this Court vide judgment 10.02.2009 and order of the Tribunal impugned was affirmed & it was observed by the Division Bench of this Court in the judgment referred to supra dt.10.02.2009 that as regards 25% LDCE quota, its panel has to be prepared on the basis of marks having been secured in the examination by the candidates who participated in the selection process & not on the basis of seniority in the feeder grade/cadre. What was observed in the judgment referred to supra dt.10.02.2009, having direct bearing on the issue raised herein by the respective parties for consideration by this Court, being relevant for the present purpose is reproduced ad infra:-
The only argument of the learned counsel for the petitioner-Railway is in reference to Para 219 of the Manual and also the circular Annexure-R/4. Perusal of the provision of Para 219 of the Manual and circular reveals that Para 219 of the Manual applies to the case of normal promotion based on selection and not in the case of LDCE. It is not in dispute that it is not a selection made to fill up the post by way of promotion, where the panel is drawn based on seniority and not on the basis of merit and therein only those candidates who secured 80% marks or above, are placed at the top of the list being outstanding candidates. So far as the present case is concerned, it is the case where 25% posts are to be filled up by way of LDCE which are other than the posts filled up by way of normal promotion method. For filling up the post by way of LDCE, a separate circular has been issued by the Railway which is Annexure-6 to the original application and is part of Annexure-1 to these writ petitions. Perusal of the said circular shows as to how LDCE would be held and what would be the minimum required marks therein to be a successful candidate. The said circular further provides that after getting the list of successful candidates, panel would be drawn in order of merit based on total marks obtained by the candidates and not on the basis of seniority. Once such a circular has been issued by the Railway, then it cannot be ignored or violated by making reference to Para 219 of the Manual as it is of no application to the recruitment by LDCE. This is apart from the fact that if criteria as has been given in Para 219 of the Indian Railway Establishment Manual is applied then there would remain no difference between normal promotion and recruitment based on LDCE from and amongst in-service candidates. Thus, the argument of the learned counsel for the petitioner-Railway is not even logical one because as and when competitive examination is conducted, a candidate having obtained higher marks has to be placed above the candidates getting lesser marks, and the panel is required to be drawn accordingly.
In view of the discussion hereinabove, we find no merit in these writ petitions and thereby while dismissing the writ petitions, we upheld the judgments rendered by the Tribunal dated 25.7.2007 and 28.11.2008 passed in the original application and on review petition respectively. No order as to costs.
It is relevant to note that it was the selection process against the seats reserved for 25% LDCE quota for the post of Junior Engineer Grade-II initiated in the year 2004. However, the process was again initiated in the year 2006 against three vacancies for the post of Junior Engineer Grade-II to be filled against 25% LDCE quota and the petitioner Arun Kumar Upadhyay being eligible participated in the selection process & written examination was held on 11.11.2006, result whereof was declared on 23.11.2006, in all 14 candidates were declared successful and in furtherance thereof final panel was prepared on 15.12.2006 and that became subject matter of challenge by filing original application before the Tribunal at the behest of petitioner Arun Kumar Upadhyay and his grievance was that after this fact was finally approved by the Division Bench of this Court holding that final panel against 25% LDCE quota is to be prepared on the basis of marks secured by the candidates in the examination & not on the basis of seniority of the feeder grade/cadre the result declared & final panel prepared by the respondent Railways deserves to be revised & redrawn accordingly being in violation of the law laid down in the case of Union of India & Ors. Vs. Shri Shivraj Singh Solanki & Ors. (DB Civil Writ Petition No.979/2009).
But the learned Tribunal dismissed the original application preferred by the petitioner under order impugned dt.03.02.2010 primarily on the premise that there were 3 vacancies in the year 2006 against 25% LDCE quota for the post of Junior Engineer Grade-II & even if the panel is redrawn as prayed for by the petitioner to be prepared on the basis of marks secured in the examination, his name being at serial no.8 & as alleged by the respondents even on acceptance of his contention still he was not entitled to relief and apart from it once having participated in the selection process and remained unsuccessful he is estopped from challenging the selection criteria & placed reliance upon judgment of Apex Court in Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors., 2008(1) SCC (L&S1005), in addition thereto further view expressed by the Tribunal was that once impleaded respondent Mahender Mohan (before the Tribunal) qualified selection held for the post of Welfare Inspector at the relevant point of time but was declined appointment on the post of Welfare Inspector on the ground that he had already been selected & joined on the post of JE-II, it will not be equitable at this stage to quash the panel dt.15.12.2006 & further observed that the person who may be entitled for being placed in the panel pursuant to judgment in Shiv Raj Singh's case (supra) is not before it (Tribunal), taking all these facts into consideration, the original application filed by the petitioner was rejected by the Tribunal under order impugned dt.03.02.2010 which is subject matter of challenge here in D.B. Civil Writ Petition No.5631/2010.
To meet out what was noticed by the Tribunal that the name of petitioner was at serial no.8 in the panel and if it would have been revised & prepared on the basis of marks secured in the examination & not on the basis of seniority of the feeder/ grade/cadre, it was contended before this Court that the revised panel was never made available before the Tribunal and when he took copy of the revised panel prepared by the Railways pursuant to order of the Tribunal passed at one stage, it revealed that the candidates who were at serial no.1 & 3 namely Pradeep Kumar Jain & Abdul Kasim they had already been selected to the post of Junior Engineer Grade-II against the vacancy of 2004 and the petitioners name was at serial no.5 (and no at S.No.8) in the panel prepared on the basis of merit, on elimination of names of the two candidates who were at serial no.1 & 3 after having been selected as Junior Engineer Grade-II for LDCE-2004, petitioner's name comes at serial no.3 against the three vacancies which were notified to be filled against 25% LDCE quota for the post of Junior Engineer Grade-II in the year 2006.
D.B. Civil Writ Petition No.18446/2011 :- Brief facts for consideration are that the petitioners were working as Gang-man in groupD and a notification came to be issued on 20.02.2008 inviting applications for appearing in the examination of Pathway Supervisor (PWS) which is group-C post to be filled against 25% LDCE quota and the petitioners participated in the competitive examination which was held on 30.08.2008, result whereof was declared on 03.10.2008 & name of the petitioners finds place at serial no.1 & 2 but in the final panel prepared by the Railways dt.13.01.2009, names of the petitioners which were earlier figured at serial no.1 & 2 in the result declared of the written examination their names were deleted. However, on application filed under Right to Information Act in regard to the examination held in the year 2008 for LDCE quota, a communication was sent on 12.11.2009 along with final assessment sheet of the candidates who appeared in the competitive examination held for the post of PWS against LDCE quota, it revealed that petitioners secured more marks than respondents-4 & 5 in the written test as well as record of service but in the final panel name of petitioner-1 finds place at serial no.5 & of petitioner-2 at no.9 and that being prepared based on seniority & not on the basis of merit of the candidate on the basis of marks secured in the competitive examination, the final panel dt.13.01.2009 came to be challenged by filing original application before the Tribunal but that came to be dismissed by the Tribunal primarily on the premise that the facts of OA No.57/2006 & 58/2006 are quite different than the present one and in OA-58/2006 there was a specific circular issued which mentioned that the selection will be only on the basis of written test whereas in the present selection there was no document on record which could suggest that selection was based on the marks secured in the written examination but to the contrary it was stated by the Railways that the selection will be based on written examination as well as on the basis of seniority and final panel will be made on the basis of seniority as per circular dt.16.11.1998 and keeping that distinction into consideration the learned Tribunal while upholding view of the Railways held that it was specifically notified at the stage when the selection process was initiated that it will be based on result of the competitive examination & not on the basis of seniority of the lower grade/cadre and the view expressed by this Court holding that 25% LDCE quota is to be filled on the basis of marks secured in the written competitive examination and the seniority of lower grade has no role for consideration.
There are two other writ petitions no.7785/2010 & 7786/2010 filed by such of the petitioners who were appointed as Gang-man & eligible for appointment against 25% LDCE quota for the post of Pathway Supervisor(PWS). However, notification came to be issued on 08.04.2005 holding selection for 12 vacancies of PWS and the written test was held and its result was declared on 10.01.2006 & 15 candidates were declared successful. However, final panel was prepared on 02.02.2006 and the present petitioners were appointed on the post of PWS and the final select list was published on 29.03.2007 and by passage of time they were further promoted on the post of Senior Pathway Officer vide order dt.28.05.2009. However, after the judgment of Division Bench of this Court dt.10.02.2009, reference of which has been made supra, show cause notice came to be served upon the petitioners for deleting their names from the panel dt.02.02.2006, against which representation/objection was submitted & at that stage original application was also filed assailing show cause notices, which was registered as OA-344/2009. The learned Tribunal vide its order dt.12.08.2009 disposed of the Original application with direction to respondent to consider their representation. However, another OA was filed by the petitioners which came to be registered as OA-437/2009 & that came to be disposed of vide order dt.29.01.2010. However, the Tribunal was of the view that since the order impugned has been passed in compliance of the judgment dt.24.08.2007 in OA-57/2006 & 58/2006 as such the Tribunal cannot sit over its judgment and since there were two original applications which was the basis for the Railway Establishment for passing order impugned as such these two separate writ petitions have been filed by the petitioners.
Sh. Sanjeev Prakash Sharma, learned Senior Adv. along with Sh. Gaurav Sharma Adv., (CWP-5631/2010) & Sh. Shiv S. Ola Adv., (CWP-18446/2011) jointly contended that once this Court finally decided that 25% LDCE quota is to be filled purely on the basis of marks secured in the written examination, the respondent Railways is under an obligation to recast the panel which at one stage was prepared on the basis of seniority of the candidates in the feeder grade/lower cadre and such of the petitioners/applicants who finally fell against number of vacancies notified for the respective years against 25% LDCE quota certainly have their legitimate right of fair consideration for appointment and the reason assigned by the Tribunal in uprooting claim of petitioner Arun Kumar Upadhyay on the premise that he may not get his induction even if the panel is prepared on the basis of merit having been once participated, the selection process could not have been challenged or one of the respondent-3 was not considered for appointment despite being selected for the post of Welfare Inspector could not be a ground at all to uproot claim of the petitioner and the respondent Railways is under obligation to revise the final panel prepared against 25% LDCE quota irrespective of the fact that the candidate who fell in the order of merit in the given year of selection process on the basis of merit was to be considered for appointment and case of the petitioners is that whether it is the post of Junior Engineer Grade-II or PWS indisputably from the material which has come on record , against number of vacancies notified for the years 2006-08 for the post of Junior Engineer Grade-II/PWS, they were to be considered for appointment on the basis of the marks secured in the competitive examination in the order of their merit and the finding recorded by the tribunal is not legally sustainable.
Counsel for petitioners (CWP-18446/2011), further submits that the reason assigned by the Tribunal making distinction that in Original Application no.57/2006 & 58/2006 there was a specific circular issued that selection will be on the basis of written test whereas in the present selection it is based on written examination and other considerations referred to by the respondent in the notification are all artificial distinctions. However, the respondent Railways were under obligation to fill the vacancy against 25% LDCE quota in terms of scheme of the Rules and it was not case of the respondent Railways either before the tribunal or before this Court that Railway Establishment Rules notifies that the post of J.En. Gr-II/PWS against 25% LDCE quota is to be filled on the basis of seniority of the feeder/ grade/cadre and merely a reference/condition being referred to in/about notification may not justify action of the respondent Railways in making selection against 25% LDCE quota on the basis of the marks secured by the candidates in the written competitive examination more so when this controversy has been put to rest by the Division Bench of this Court in the judgment dt.10.02.2009 (supra) & under these circumstances order impugned of the learned tribunal is not legally sustainable & deserves to be quashed.
Sh.Virendra Lodha, Sr. Adv. with Sh. Vinod Goyal Adv. appearing for petitioners (CWP-7785/2010 & 7786/2010) submits that show cause notice issued to the present petitioners might have been based on earlier order of tribunal in OA No.57/2006 & 58/2006 where the panel dt.02.02.2006 was quashed & set aside & respondent Railways was directed to recast panel of such of the candidates on the basis of marks secured in written examination but the fact is that petitioners by passage of time were promoted as Senior Pathway Supervisor & became victim for the reason that they would be in initial constitution of the panel to be prepared on the basis of written examination they would have appeared when the vacancy was again notified on 20.02.2008 but as they were appointed earlier as PWS and further promoted to the next higher post of Senior PWS, there appears no justification to now uproot the very selection of the petitioners on the post of PWS and that certainly creates right after being promoted and no opportunity of hearing was afforded to them and such decision could not divest rights of the present petitioners.
Counsel for respondents as usual have supported their action but without keeping in view the law laid down by this Court holding the criteria to fill the vacancy against 25% LDCE quota on the basis of merit and still even after judgment of this Court pronounced way back on 10.02.2009, reference of which has been made supra, it was not considered to give a fresh revisit to the whole situation and upon the guidelines for filling 25% LDCE quota for various posts which were in group D & C or as the case may be.
We have heard counsel for the parties & with their assistance perused the material on record.
Before examining the controversy & the rival submissions made, it can be noticed from the various circulars issued by the Railway Establishment from time to time, few of which have been placed on record that under Railway Establishment Act,1989 guidelines have been issued to be implemented by departmental committee for holding selection. Section 72 of the Act which lays down guidelines for holding Limited Departmental Competitive Examinations, being relevant for the present purpose reads ad infra :
72. Guidelines for holding limited departmental competition.(1) Applications from eligible candidates for appearing in the limited departmental competition to the ranks of Head Constable and Assistant Sub-Inspector shall be invited thirty days in advance of the proposed date of holding the said competitions.
(2) The procedure for holding the said competition shall be the same as provided in Rules 70 and 71 except sub-rule (3) of the said rules.
(3) A panel shall be drawn from amongst the candidates securing sixty percent marks or more in the order of merit.
For group-B posts, circular has been issued by Railway Board dt.20.07.1995 laying down guidelines for promotion to group-B including LDCE guidelines dt.20/25-07-1995 & apart from procedure for holding competitive examinations, final panel is to be prepared of the successful candidates on the basis of marks originally secured in the examination & clause-9.4 of the circular dt.20/25-07-1995 being relevant for the present purpose reads ad infra :-
There will be no grading of successful candidates as outstanding, good etc. Their names will be arranged in the order of merit on the basis of the total marks obtained by each of the candidates.
Regarding promotion against LDCE quota in the cadre of OS-II & P-I, it has been circulated by the Railway Board vide their circular dt.17/06/2005, apart from criteria introduced, separate procedure has been provided for holding LDCE & sub-clause (v) of clause-3 mandates to prepare final panel of successful candidates in the order of merit, that being relevant reads ad infra:-
(v) Based on (iv) above the RRB will furnish the panel of successful candidates in order of merit, equal to the number of total vacancies intimated by the Zonal Railway/PU concerned. While it will be preferable to post the successful and candidates in their respective Department/Units, there is no bar to their being posted else here if the number of successful candidates does not match the number of already assessed vacancies in the respective Deptt./Unit.
The Division Bench of this Court in the judgment referred to dt.10.02.2009 which mandates regarding preparation of the final panel on the basis of marks secured by the successful candidates who had participated against vacancies reserved for LDCE quota, being relevant reads ad infra:-
(d) There will be no grading of successful candidates to as outstanding very good etc. There names be arranged in order of merit on the basis of the total marks obtained by each of the candidates.
As regards Para 219J of the Manual, it was observed in the judgment (supra) while examining the controversy which arose in regard to the selection process initiated in the year 2004 filling up the post of Junior Engineer Grade-II against 25% LDCE quota that 219(j) lays down regarding promotion to general selection posts & not relevant with regard to 25% LDCE quota in the various groups/cadres and another circular has been placed on record issued by the Ministry of Railways (Railway Board dt.19.06.2009) regarding selection procedure to general selection post & placement of names on panel and it has been clarified that separate instructions have been issued prescribing different modes for placing names on panel in few categories, viz LDCE quota in the various categories which is issued from time to time & promotion to general selection post there is the procedure for regular promotion to general selection posts to be filled in terms of Para-219(J) IREM (U.L.I.) 1989 and in terms of instructions contained in para(iii) of 219(J) final panel is to be prepared on the basis of seniority from amongst those who secure a particular percentage of marks but in the instant case we are not concerned with the promotion to be made by general selection which obviously has to be made after selection on the basis of seniority but as regards 25% LDCE quota, we find no reason of doubt that after judgment of this Court referred to supra dt.10.02.2009 that panel is to be prepared on the basis of marks secured in the examination on merit where seniority of the incumbent of the lower grade/cadre is not relevant for preparation of final panel of the candidates who had participated against 25% LDCE quota action of the respondent cannot be held justified and sustainable under the law.
As regards first order passed by Tribunal making distinction of the judgment of this Court dt.10.02.2009, under order impugned dt.03.02.2010, all the reasons assigned by the Tribunal in the opinion of this Court are not legally sustainable for the reason that against three vacancies notified of Junior Engineer Grade-II against 25% LDCE quota, document has been placed on record which could justify that the petitioner after having secured 55 marks was placed at serial no.5 in the final panel prepared on the basis of merit & 2 incumbents who were at serial no.1 & 3 namely Pradeep Kumar Jain & Abdul Kasim both were higher in the order of merit & selected on the basis of LDCE-2004 and if both the names are deleted from the panel of 2006 certainly petitioner's name finds place at serial no.3 in the order of merit & as such was eligible to be considered for appointment against the vacancies notified of the year 2006. However, this Court would like to observe that after the view was expressed by the Division Bench of this Court in the judgment dt.10.02.2009 that 25% LDCE quota is to be filled on the basis of merit & not on the basis of seniority of the lower grade/cadre the tribunal was not at all justified in holding to the contrary and we hold that panel was to be revised & prepared on the basis of merit and even if the petitioners name does not find place in the order of merit to be considered against the vacancy of given year, the incumbents who find place have their right of fair consideration and if the incumbent stands on merit declines to join, the person next in the order of merit can always be considered against a notified vacancy but the panel is to be prepared on the basis of merit in terms of the judgment of this Court referred to supra dt.10.02.2009, at the same time the other reasons that one of the incumbent respondent no.3 namely Mahender Mohan who qualified as Welfare Inspector but declined appointment on the ground that he has already been selected & joined on the post of Junior Engineer Gr.-II, that cannot be considered to be a reason to deny claim of the petitioner for his fair consideration for appointment on the post of Junior Engineer Grade-II, at the same time we would like to observe that if respondent no.3 on account of change of the panel to be prepared on the basis of merit if not be able to find place in the order of merit certainly his right of fair consideration for appointment if qualified the selection of Welfare Inspector cannot be defeated and that is to be given a fresh look by the respondent or in the peculiar facts respondent no.3 can be adjusted by creating a shadow or supernumerary post but as observed that could not be a reason to deny rightful claim of the petitioner at the same time the another reason assigned by the tribunal that once the incumbent has participated in the selection process, he is estopped from challenging the criteria of selection is wholly bereft of merit for the reason that the petitioner has not challenged the selection process and his grievance was in regard to the scheme of Rules not being followed and final panel is to be prepared on the basis of merit & not on the basis of seniority of the incumbents in the feeder grade/cadre and that is always open to challenge if not adhered to by the recruiting authority but cannot be a reason to deny rightful claim of the incumbent by the tribunal under order impugned & in our considered view the judgment of the tribunal dt.03.02.2010 in OA no.403/2007 is not legally sustainable in the eye of law & deserves to be quashed.
As regards judgment of the tribunal dt.08.09.2011 in OA-570/2009 in our considered view is not legally sustainable for the reason that once it was upheld by this Court that 25% LDCE quota is to be filled on the basis of marks secured in the examination & not on the basis of seniority of the incumbents in the feeder grade/cadre the reason assigned by the tribunal making artificial distinctions between OA-56/2006 & 57/2006 and the present original application regarding the condition incorporated in the notification referred to by the Tribunal for holding selection initiated for the post of PWS, there was a different condition notified in the notification holding selection is without basis for the reason that once the circular has been issued by the Railway Board regarding promotion to various post of group-B & C against 25% LDCE quota that has to be filled on the basis of marks secured in the examination on merit and merely because something being notified or reference being made in the advertisement, what is indicated in the notification inviting applications for selection that has to be in conformity with the scheme and in our considered view the finding recorded by Tribunal in upholding the selection made by the respondent for the post of PWS of the year 2008 under impugned judgment dt.08.09.2011 is not legally sustainable & deserves to be quashed & set aside and this Court cannot approve the final panel prepared by the respondent Railways for the year 2008 for the post of PWS on the basis of seniority of incumbents in the feeder grade/cadre keeping in view the judgment of Division Bench of this Court dt.10.02.2009.
As regards two other petitions filed by the incumbents to whom show cause notice was served for deleting their names from the panel of the year 2006, indisputably prepared on the basis of seniority of incumbents in the feeder/lower grade/cadre in the fact situation was in compliance of order of the tribunal and if the petitioners' name does not find place in the revised panel which was to be prepared on the basis of merit based on the marks secured in the examination certainly no right can be said to be conferred & penal was supposed to be recast & prepared on the basis of the marks secured by the incumbents who had participated in the examination on merit & not on the basis of seniority of the incumbents in the feeder/lower grade/cadre.
The submission made by petitioners' counsel that reasonable opportunity was not afforded & their representations submitted pursuant to direction of the tribunal have also not been examined by the respondent in the right earnest, suffice it to say that once it has been held by this court in the judgment referred to supra dt.10.02.2009 that 25% LDCE quota is to be filled on the basis of marks secured by the candidates in the examination on the basis of merit, their seniority in the feeder grade is not at all relevant for preparation of the panel and that being so the submission made regarding opportunity of hearing not being afforded to the incumbents is without basis for the reason that apart from representation/ objection submitted by the petitioner against the show cause notice for deleting their names from the panel were dealt with by the respondent & rejected after assigning reasons vide order dt.20.04.2010 it remains empty formality and petitioners being promoted on the post of PWS and further to the next higher post of Senior Pathway Officer that is always open for the respondent Railway to consider as to how their rights can be protected but at the same time such of the incumbents who are eligible for promotion after the panel being revised & prepared on the basis of marks secured by the incumbent in the examination on the basis of merit at least their rights cannot be defeated after the controversy being finally settled by the Division Bench of this Court in the judgment dt.10.02.2009 holding that panel is to be prepared of the candidates who participated against 25% LDCE quota on the basis of merit.
Before concluding the judgment we would like to observe that since the petitioners in writ petition-7785/2010 & 7786/2010 were initially appointed on the post of Pathway Supervisor & also on the higher post of Senior PWS, we consider it appropriate to observe that the respondent Railways may allow these persons to continue until the revised panel is prepared in terms of directions of this Court and if either of the petitioner finds place in the order of merit against notified vacancies candidature of the petitioner may be considered for the respective year and open for the respondent to create a shadow or supernumerary post for better administration in the interest of justice if so advised, at the same time afford liberty to Mahendra Mohan (respondent-3) to avail opportunity of his selection on the post of Welfare Inspector which at one time was declined to him.
Consequently, order of the tribunal dt.03.02.2010 in OA-403/2007 (CWP-5631/2010), dt.08.09.2011 in OA-570/2009 (CWP-18446/2011) are hereby quashed & set aside and the respondents Railway is directed to reconsider & revise the final panel of the post in question to be prepared on the basis of marks secured by the incumbents in the examination on the basis of merit & consider the petitioners for appointment on the respective posts if find place in order of merit against notified vacancies for 25% LDCE quota with all consequential benefits. The writ petitions-7785/2010 & 7786/2010 are disposed of in the light of the observations made (supra). No cost.
(J.K. Ranka),J. (Ajay Rastogi),J. 5631cw10Apr__FnlDsps.sxw Certificate - All corrections have been incorporated in the judgment/order being emailed/Vijay Singh Shekhawat/PAJW