Central Administrative Tribunal - Delhi
Komal Prasad vs Union Of India Through on 28 May, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.2377/2008
Order reserved on 7th May 2013
Order pronounced on 28th May 2013
Honble Smt. Manjulika Gautam, Member (A)
Honble Shri A.K. Bhardwaj, Member (J)
1. Komal Prasad, S/o Sh. Sham Deo,
Aged about 49 years,
R/o House No. 203, Railway Colony,
Basant Lane, Paharganj, Delhi.
2. Sabhajeet Yadav, S/o Sh. Prahlad Yadav,
Aged about 50 years,
R/o P-71, Railway Colony,
Panipat, Haryana.
3. Shiv Charan, S/o Sh. Om Prakash,
Aged about 51 years,
R/o Vill. & P.O. Safidonmohalla,
Kalalowala,
Distt. Jind (Haryana).
4. Narender Singh, S/o Sh. Bhagwat Singh,
Aged about 39 years,
R/o G-19(B), Rly. Colony,
Muzaffarnagar (U.P.).
5. Rajinder Prasad, S/o Sh. Layak Ram,
Aged 50 years,
R/o N-31, Teachers Colony,
Sector-12, Pratap Vihar,
Ghaziabad (U.P.)
6. Manmohan, S/o Shri Hira Lal,
Aged 45 years,
R/o B-H 286, Shalimar Bagh,
Delhi.
7. Ranbir Singh, S/o Sh. Lakhi Ram,
Aged about 51 years,
H.No.736 A/21, Gali No.4,
Kailash Colony,
Rohtak (Haryana).
..Applicants
(By Advocates: Shri B S Mainee and Ms. Meenu Mainee)
Versus
1. Union of India through
The General Manager,
Northern Railway Head Quarter,
Baroda House, New Delhi.
2. Divisional Railway Manager,
D.R.M. Office,
State Entry Road,
New Delhi.
3. Sr. D.P.O.,
Northern Railway, DRM Office,
State Entry Road,
New Delhi.
4. Pramod Kumar, S/o Sri Pal
(Service through D.P.O., Northern Railway, New Delhi.)
5. Kuldeep Gupta, S/o Y.K. Gupta
(Service through D.P.O., Northern Railway, New Delhi.)
6. Ashok Kumar, S/o Santar Pal
(Service through D.P.O., Northern Railway, New Delhi.)
7. Balbir Singh, S/o Banwari Singh,
Sr. PWS/C/Shakurbasti,
Under Dy.CE/C Shakurbasti, Delhi.
R/o T-3/B, Chankyapuri Railway Station,
New Delhi-21.
8. Harish Chander, S/o Lal Chand,
Sr. PWS/C/NDLS,
Under Dy.CE/C State Entry Road,
R/o S-96, Parampuri,
Uttam Nagar, New Delhi.
9. Ramesh Kumar, S/o Ram Lal
Sr. PWS/Gurgaon,
Under ADEN/Delhi.
R/o V&PO Ichchapuri,
Distt. Gurgaon (Haryana).
10. Bhalle Ram, S/o Hazari,
Sr. PWS/Karnal,
Under ADEN/Karnal.
R/o Anand Parbat Colony,
Jullani Road, Jind Jn. (Haryana).
11. Prithvi Raj, S/o Hooblal,
Sr. PWS/Meerut,
Under ADEN/Meerut.
R/o E/25, Railway Colony
Muzaffarnagar (UP).
12. Amar Nath, S/o Kripa Ram,
Sr. PWS/Ghaziabad,
Under ADEN/Ghaziabad.
..Respondents
(By Advocates: Shri VSR Krishna, Shri Shailendra Tiwary and Shri J P
Tiwary for respondents 1 to 3
Shri M S Saini and Shri H P Chakravorty for respondent
7 to 12 - none for remaining private respondents)
O R D E R
Shri A.K. Bhardwaj:
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants sought issuance of direction to the official respondents to produce the record, i.e., marks obtained by 35 selected candidates in the written test and minutes of meetings held on 22.8.2008 and 12.9.2008 as also to adduce the reasons for not holding Departmental Promotion Committee (DPC) on 25.6.2008. They also sought quashment of order dated 18.9.2008 and the consequential benefits. Directions have also been sought to the official respondents to re-set the provisional list of selected candidates and to prepare a fresh panel of Senior Permanent Way Supervisor (hereafter referred to as Sr. PWS) (grade Rs.5000-8000) against 25% Limited Departmental Competitive Examination (for short LDCE) quota. By order dated 31.7.2009 having allowed MA-1359/2009, this Tribunal directed the applicants to serve copies of amended OA upon the respondents and granted four weeks time for filing reply(s).
2. The Original Application was amended by the applicants to incorporate the plea that in accordance with the rules the LDCE quota with regard to general posts for which the candidates from different categories are eligible need to be filled up on the basis of merits and service record and not in the order of seniority. For easy reference, paragraphs 1 to 4 of MA-1359/2009 filed by the applicants for amendment of the Original Application are extracted hereinbelow:-
1. That the Applicant had filed the above noted O.A. praying for quashing the impugned order dated 09.02.08 in terms of which a Select List for the post of Senior Permanent Way Supervisor Grade Rs.5000-8000 under 25% Limited Departmental Competitive Examination (LDCE) quota has been issued being violative of the rules.
2. In accordance with the rules, the LDCE quota in case of general post in which candidates are called for from different categories is to be filled up on the merits secured by the candidates in the written examination as also on the basis of the service record and not on the basis of seniority. However, in the O.A filed by the Applicant, it has erroneously been contended that since some of the selected candidates were junior to the Applicants and as such, the Select List/ panel should have been prepared in order of seniority.
3. The aforesaid contention of the Applicants is not correct because the Honble Supreme Court in case of Ram J. Ram has clearly laid down the law that the general posts in which candidates belonging to different categories are called to hold a competitive examination, a panel should be prepared in order of merit. The aforesaid judgment has also been followed by this Honble Tribunal in case of Parimal Singh v/s Union of India & Ors and the Hyderabad Bench of this Honble Tribunal in its latest judgment in case of C.B. Naga Laxman has also taken the same view.
4. Since an erroneous contention has been made inadvertently in the O.A., the Applicant is seeking the protection of this Honble Tribunal to amend paragraphs 4.12 and 4.13 of the O.A with a view to correct the erroneous contentions for just and proper adjudication by this Honble Tribunal.
3. The salient grounds put forth on behalf of the applicants to question the order dated 18.9.2008 and for preparation of fresh panel in accordance with law are:-
No proper procedure was followed by respondents Nos. 1 to 3 while issuing the provisional seniority list for the post of Sr. PWS in the grade of Rs.5000-8000, When the DPC was scheduled to be held on 25.6.2008 the same was convened on 22.8.2008 and 12.9.2008 only to accommodate the favorites of respondent Nos. 1 to 3, who were not satisfying the eligibility condition of length of service by the scheduled date, i.e., 25.6.2008, The vacancies in question, i.e., 25 in numbers to be filled up by way of LDCE were to be filled up on 9.4.2007 but the selection was deferred by more than a year and the applicants, who were senior to respondent No.6, were made to compete with their junior, The selection for the post of Sr. PWS against 25% LDCE quota was held after a gap of 10 years and the applicants, who have already attained the age of 50 years, would not get any opportunity in future to participate in such selection; and The panel of Sr. PWS could not have been finalized on the basis of seniority and ought to have been based on merits.
4. Shri B S Mainee along with Ms. Meenu Mainee, learned counsels for applicants submitted with aplomb and vehemence that in view of the judgment of the Honble Punjab and Haryana High Court (Division Bench) in Subhash Chand Joshi & others v. Union of India & others, 2008 (2) SCT 787, the select panel for promotion to the post in question against 25% LDCE quota ought to have been based on merits and not in the order of seniority. To buttress the said submission, Ms. Meenu Mainee referred to the order of Full Bench of this Tribunal in Bhramesh Kumar Gupta & others v. Union of India & others (OA-2765/2009) passed on 4.1.2011 and the order passed by the Honble High Court of Delhi in Ram Rajiv & others v. Union of India & others (W.P. (C) No.6496/2011), decided on 5.9.2011.
5. In the counter reply filed on behalf of the official respondents, i.e., respondent Nos. 1 to 3, it has been pleaded:
i) The applicants appeared in the examination without protest and only on being found unsuccessful in the examination, they preferred to question the selection process,
ii) In view of the judgment of the Honble Supreme Court in Chandra Prakash Tiwari & others v. Shakuntala Shukla & others, (2002) 6 SCC 127 having participated in the selection, the applicants are estopped from challenging the same.
iii) In Om Prakash Shukla v. Akhilesh Kumar Shukla & others, 1986 (Supp.) SCC 285 also it has been held that when a candidate appears in the examination without protest and is subsequently found unsuccessful, the question of entertaining the petition challenging the examination would not arise. A reliance has also been placed on the decision of the Honble Supreme Court in Syed Khalid Rizvi & others v. Union of India & others, 1993 (Supp) SCC 575,
iv) The DPC checked the service record, personal ability and working report/ACR, etc. and prepared the panel according to the seniority of those who obtained 60% marks in professional ability as well as 60% marks in aggregate to the extent of availability of vacancies and the candidates who secured 80% marks were classified as outstanding and were placed at the top of the panel; and
v) The judgments relied upon by the applicants are distinguishable on the ground that the same are applicable only with regard to selection for general post while in the present case, the selection was made for cadre post.
vi) In paragraph 5 of the reply, it could be stated that the various grounds taken in the Original Application would be met at the time of final hearing.
6. S/Shri V S R Krishna and Shailendra Tiwary, learned counsels appearing for respondent Nos. 1 to 3 jointly submitted that the order of the Honble Punjab and Haryana High Court is dated 9.4.2008 while the selection for the post of Sr. PWS had been set in motion on 3.9.2007 (Annexure A-11 to the OA), thus cannot held to be vitiated in view of a subsequent order of the Honble High Court, as the said order could have prospective application. According to them, if the order of Honble Punjab and Haryana High Court delivered on 9.4.2008 (ibid) is formed basis to interfere with all past selections, the settled position would be unsettled.
7. Referring to their reply, they contended that it is only when the LDCE is held for general post that the select list is prepared on the basis of merit and not in the case of cadre post, like the present case. They also reiterated the stand taken by the official respondents in the reply (ibid) that having participated in the selection and remained unsuccessful, the applicants cannot assail the same by way of present Original Application.
8. S/Shri M S Saini and H P Chakravorty, learned counsels for private respondent Nos. 7 to 12 adopted the stand of the official respondents and further submitted that since the post of Sr. PWS (earlier designated as Sr. PWM) is a cadre post for Gangmen, Gatemen, Trollymen, etc., the official respondents were justified in preparing select panel for the same in the order of seniority of those who obtained 60% marks. They made reference to paragraph 219 (j) of Indian Railway Establishment Manual (IREM) commented upon by the Honble Punjab and Haryana High Court, RBE No.45 of 2007 and letter dated 6.2.2008.
9. To buttress the stand taken by the official respondents that having participated in selection process the applicants cannot question the same, learned counsels appearing for private respondent Nos. 7 to 12 relied upon the orders of this Tribunal in Prem Singh & others v. Union of India & others (OA-1727/2011) decided on 19.5.2011 and Shri Kailash Chand Gurjar v. Union of India & others (OA-421/2008) decided on 11.8.2011. Relying upon the decision of the Honble Supreme Court in State of Bihar & others v. Mithilesh Kumar, (2011) 1 SCC (L&S) 403, they submitted that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected on being recommended for appointment after following the norms, as were in place at the time when the selection process was commenced. Referring to the judgment in Y. Satyanarayan Reddy v. Mandal Revenue Officer, A.P. (2009) 9 SCC 447, they submitted that dismissal of the SLP against the judgment of the Honble Punjab and Haryana High Court in limine does not amount to clear affirmation of the High Court decision and would not constitute the binding precedent.
10. We have heard the learned counsels for the parties and perused the record.
11. In the premises built up by the parties and their respective counsels, the propositions arise to be determined by us in the present Original Application are:
i) Whether in view of the pronouncement by the Honble Punjab and Haryana High Court in Subhash Chand Joshis case (supra) on paragraph 219 (j) of IREM, the selection already set in motion could be interfered with and if not what relief can be granted to the applicants herein?
ii) Whether having participated in the selection for the post of Sr. PWS and on being found unsuccessful, the applicants can question the selection process? And
iii) Whether the post of Sr. PWS is a general post or cadre post?
12. In terms of the extent procedure, the posts of erstwhile Supervisor (P. Way) in the pay scale of Rs.4500-7000 were to be filled up in the following manner:-
(i) 25% by direct recruitment through Railway Recruitment Board with qualification of B.Sc., Physics & Maths Diploma holders in Civil/Mechanical/ Electrical Engineering also being eligible.
(ii) 25% by a Limited Departmental Competitive Examination from amongst Gangmen, Keymen and Mates with the qualification of 10+2 with Science and Mathematics and having put in a minimum of three years regular service. Shortfall, if any, to be made good from amongst Gangmen/Keymen/Mates having the qualification of Matriculation/HSLC with three years regular service. Further shortfall, if any, to be added to the direct recruitment quota (i) above; and
(iii) 50% by promotion of Departmental staff having the qualification of Class X Board Examination by seniority-cum-suitability through a written suitability test, shortfall, if any, being added to LDCE quota at (ii) above.
13. The Railway Board issued letter No. E (NG)I-2007/PM5/5 dated 3.7.2007 (Annexure R-1) providing that the existing classification for recruitment and promotion applicable to the Supervisors (P. Way) (pay scale of Rs.4500-7000) would continue to apply for recruitment and promotion to the newly created category of Sr. PWS in the pay scale of Rs.5000-8000 also. In terms of paragraph 219 (j) of IREM, extract of which has been placed on record by respondent Nos. 7 to 12 as Annexure R-1 to their reply, for general posts, i.e., those outside the normal channel of promotion for which candidates are called from different categories whether in the same department or from different departments and where zone of consideration is not confined to three times the number of staff to be empanelled, the selection procedure should be as under:-
(Authority: Railway Boards letter No.E(NG) 1-2008/PM7/4 SLP dt. 19.06.2009) ACS No.209
(i) All eligible staff irrespective of the department in which they may be working who satisfy the prescribed conditions of eligibility and volunteer for the post should be subjected to selection which should consist of a written test and in a few cases viva-voce test also as indicated in sub para (a) of para 215. The various factors of selection and their relative weight will be as indicate below:- (ACS No. 66&152) Factors/headings Maximum Marks Qualifying Marks (1) Professional ability 50 30 (2) Record of service 30 .
Total 80 48 NOTE:- (i) The assessment under heading (2) above will be governed by the provisions contained in Note (i) below para (g) above.
(ii) In the case of selection for promotion to the post of Asstts. Loco pilots Diesel/Electric) and ASMs, the distribution of marks amongst various headings in lieu of headings in the table below clause (i) of sub-para (j) shall be as follows :- (ACS No.149 & 183) Factors/headings Maximum Marks Qualifying Marks (1) Professional ability 50 30 (2) Record of service 30 .
(3) Aptitude Test 20 Minimum cut off as may be decided by RDSO 100 60 (Authority Railway Board letter No. (E(NG)I2002/PM1/31 dt. 22.08.03 & (E(NG)I-2006/PM1/4 dt. 22.03.06)
(ii) In a few cases where both written test and viva-voce test are held to assess the professional ability of the candidates, all those who secure not less than 60% marks in the written test should be called for viva-voce test.
(Authority Railway Board letter No. (E(NG) I-200/PM1/41 dt. 07.08.03) acs no. 150.
14. In order to fill up the post of Sr. PWS in the pay scale of Rs.5000-8000 against 25% LDCE quota as per Railway Boards instructions, applications were called from Gangman, Keyman, Mates, Trolleyman, Gateman and Chowkidar having the qualification of Matriculation/HSLC with three years regular service as on 31.8.2007. In terms of clause (i) of the letter dated 3.7.2007, priority was to be given to those who possessed qualification of 10+2 with Science and Mathematics and had put in a minimum of three years regular service. Only shortfall of the candidates, if any, was to be made good from amongst those having the qualification of Matriculation/HSLC. On scrutiny of the applications received in response to the circular dated 9.4.2007, 89 candidates were considered eligible for the post and only 77 candidates participated in the written examination. 36 candidates could secure 60% marks in written examination and became eligible for further assessment by the DPC. The DPC assessed the service record, personal ability and working report / ACR, etc. of the qualified candidates and prepared a panel of those who obtained 60% marks in provisional ability and also in aggregate in the order of seniority to the extent of available vacancies. S/Shri Raj Kumar Shukla and Pramod Kumar who scored 80% marks were classified as outstanding and were placed at the top of the panel. S/Shri Chandan Singh, Kuldeep Gupta and Ashok Kumar were placed on the provisional panel of Permanent Way Supervisor by giving preference on the basis of their educational qualification, i.e., 10+2 with Science and Mathematics. Though the applicants herein had qualified the written examination and were placed at Sl.Nos. 17, 19, 20, 25, 35, 9 and 15 in the letter dated 19.6.2001 for being considered by the DPC scheduled on 25.6.2008, but were not finally recommended for the selection.
15. In the present Original Application, the primary contention of the applicants is that the select panel in question ought to have been prepared on the basis of merit and not in order of seniority of those who obtained 60% marks in the professional ability and aggregate. Utmost reliance is placed on the judgment of the Honble Punjab and Haryana High Court in Subhash Chand Joshis case (supra).
16. This Original Application was disposed of in terms of the order dated 5.3.2010 with direction to the official respondents to prepare a fresh panel on the basis of merits of candidates without taking marks of seniority into consideration. However, in Review Application No.263/2010 filed by the selected candidates, namely, S/Shri Balbir Singh, Harish Chander, Ramesh Kumar, Bhalle Ram, Prithvi Raj and Amar Nath, the order dated 5.3.2010 was recalled. Subsequently, M.A.No.381/2011 for impleadment of one more person as respondent in the O.A. was allowed on 10.2.2011. Vide M.A.No.1578/2011, the applicants sought issuance of directions to the official respondents not to hold the proposed selection for the post of PWS till finalization of the present O.A. On 21.7.2011, the applicants were granted permission to file amended memo of parties. Private respondent Nos. 7 to 12 were represented by S/Shri M.S. Saini and H P Chakravorty and fresh notices were issued to private respondent Nos. 4, 5, 6 and 13 made returnable on 23.9.2011. Despite service, no one appeared on behalf of said respondents. The O.A. was dismissed in default vide order dated 1.8.2012 and was restored on 20.11.2012. On 27.2.2013, learned counsel for official respondents submitted that in view of the Writ Petition No.8512/2011 pending before the Honble High Court, the hearing of the present O.A. could be deferred. However, learned counsel for the applicants raised strong objection to such request. In the circumstances, the O.A. was taken up for final disposal.
17. As has been noticed hereinabove in terms of paragraph 219 (j) of IREM, the final panel of the eligible staff considered for promotion against general post on the basis of LDCE was to be prepared in the order of seniority subject to securing not less than 60% marks in written examination. In other words, only those who could secure 60% marks in written examination were eligible to be called for viva voce test. As it is so appeared from the counter reply filed on behalf of the official respondents, such process was followed in making appointment to the post of Sr. PWS against 25% LDCE quota.
18. In Subhash Chand Joshis case (supra), it could be viewed that the selection in terms of paragraph 219 (j) of IREM should be made primarily on the basis of overall merit, albeit for guidance of selection board certain factors noticed in said judgment could be taken into account. For easy reference, paragraph 4 of the judgment is extracted hereinbelow:-
4. In pursuance of the circular issued by the Railways on 31.05.1996, the petitioners have got higher marks in terms of the factors contained in Rule 219 (g) of the Railway Manual but respondents Nos. 5 to 8 have been promoted on the basis of seniority presumably in terms of clause (j) of the said Para. It may be noticed that 15 marks were allocated for seniority in Rule 219 (g) of the Railway Manual but such marks were set aside by the Honble Supreme Court in N. Ramjayaram v. General Manager South Central Railway, AIR 1996 SC 3126 wherein it was held that the selection is required to be done on the basis of the criteria laid down under Rule 219 (g) of the Railway Manual. The 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 the relative weightage were laid down therein. It was found that weightage of 15% for seniority was illegal. The relevant extract from the aforesaid judgment of Honble Supreme Court reads as under:-
..The selection is required to be done on the basis of the criteria laid down under Rule 219 (g) of the Railway Manual. 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 the relative weightage laid down was as under :-
"219 (g) of the Indian Railways Manual states 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
(iii) Professional ability 50 30
(iv) Personality, address Leadership and academic qualification. 20
(v) Record of Service 15
(vi) Seniority 15 In this case since the contesting respondents are not from the same unit but of different units, Rule 320 stands excluded, weightage of 15 marks for seniority given to the respondents obviously is illegal. Therefore, there is force in the contention of the appellant that his non-selection tantamounts to arbitrary exercise of power on the part of the respondents Nos. 1 and 2. We set aside the order of the CAT, Hyderabad made in O. C. No. 1039/92, dated March 21, 1995. The respondents are directed to consider the selection according to rules and make appointment according to law.
19. In paragraph 8 of the judgment, the Honble Punjab and Haryana High Court viewed that a candidate who obtained 60% of aggregate marks must qualify for being included in the panel, but it could not mean that irrespective of better marks in the selection rule of seniority could be made applicable for determining the right to promotion. In terms of view taken by the Honble High Court of Punjab and Haryana, the candidates being not from the common feeder channel and not in the same scale or in the same cadre, could not get promotion in the order of seniority subject to obtaining qualifying marks. Paragraph 8 of the judgment reads as under:-
8. No doubt, it is correct that a candidate who obtains 60% marks of the aggregated qualifies for placing his name on the panel. However, if does not mean having obtained better marks in the selection process, the rule of seniority shall be made applicable for determining the right of promotion. The candidates are not from the common feeder channel nor the same scale or in the same cadre.
20. In paragraph 9 of the aforesaid judgment, the Honble High Court specifically viewed that clause (j) of paragraph 219 of IREM is wholly illegal and arbitrary and specifically quashed the same. Paragraph 9 of the judgment reads as under:-
9. Clause (j) of Rule 219 of the Railway Manual containing that the names of selected candidates i.e. the candidates who have obtained more than 60% marks in the written test, are to be arranged in the order of seniority. As mentioned above, there is no common seniority list on the basis of which their names can be placed in seniority for promotion against 20% Intermediate Quota posts. Clause (j) is wholly illegal and arbitrary as the rule of seniority sought to be introduced when there is none and when the promotion is to a selection post by a selection method on merit in the qualifying examination. It is more so, marks for seniority having been set aside by the Honble Supreme Court as arbitrary. Therefore, for the same reason as weighed with the Honble Supreme Court in Ramjayarams case (supra), promotion against 20% Intermediate Quota posts is required to be made only on the basis of merit and uninfluenced by seniority of the candidates occupying the lower eligible cadre. Thus, the said Rule is set aside. As a consequence thereof, the impugned order passed by the Tribunal is unjustified.
Consequently, the impugned order passed by the Tribunal is set aside. The promotion of respondents Nos.5 to 8 is set aside and respondents Nos.1 to 4 are directed to promote the petitioners to be post of Signal Inspector Grade-III from the same date when respondents No.5 to 8 were promoted. However, the petitioners shall not be entitled to arrears of pay and allowances but the entire period shall be taken into consideration for the purposes of pay fixation etc.
21. In view of the aforementioned, this Tribunal is required to consider the ramifications of paragraph 219 (j) of IREM being declared ultra vires. In Sangeetha Kulsange & others v. Union of India & others, 2011 (3) (CAT) AISLJ 181, a Division Bench of this Tribunal (Mumbai) viewed that in view of the law declared by the Honble Supreme Court in N Ramjayaram v. General Manager, South Central Railway, AIR 1996 SC 3126 with regard to selection for the post filled up from amongst the candidates from different categories, the select panel cannot be based on seniority but need to be drawn on the basis of merit. Paragraph 20 of the order reads as under:-
20. The above said judgment of M. Ramjayaram has been relied upon by the Honble High Court of Punjab and Haryana in the case of Subhash Chand Joshi (supra). It is a judgment in the context of a Group C post but the ratio is extremely important for determination of the present case. The petitioners before the Honble High Court of Punjab & Haryana High were working as Electrical Signal Maintainers in Grade-I and II. A circular was issued for the post of Signal Inspector Grade-III against 20% Intermediate Quota. Applications were invited from candidates who were Electrical Signal Maintainer / Mechanical Signal Maintainer and were matriculate, below the age of 45 years with three years service on the relevant date. The post of Signal Inspector was defined as selection post. The claim of petitioners, who got higher marks, was ignored by the respondents by promoting respondents in that case on the basis of seniority. Relying upon the ratio of the judgment of Honble Supreme Court in the case M. Ramjayaram (supra), the Honble High Court of Punjab and Haryana held that promotion against 20% Intermediate Quota to the post of Signal Inspector is required to be made only on the basis of merit uninfluenced by seniority of candidates occupying higher positions in the eligible cadre. Paragraphs 6 to 9 of the said judgment are relevant and are reproduced hereinbelow:-
6. Having heard learned counsel for the parties at some time, we are of the opinion that the order passed by the Tribunal cannot be sustained in law. The appointment to the post of Signal Inspector Grade-III is from three sources, i.e., direct recruitment, promotion and against 20% posts through Intermediate Quota. For direct recruitment posts, there is no dispute. The promotions are to be made from the feeder cadre of the post of Signal Inspector Grade-III. The rule of seniority would be relevant for promotion for the employees who fall in the same channel of promotion.
7. For Intermediate Quota of 20%, the candidates are eligible from different sources. They are not necessarily from the same branch or in the same pay scale. It is evident from the fact that petitioner No.1 is ESM Grade-I in the pay scale of Rs.1320-2040, whereas petitioners Nos.2 & 3 are ESM Grade-II in the pay scale of Rs.1200-1800. In terms of Rule 215 of the Railway Manual, selection for promotion to a selection post is to be made primarily on merits. It is not disputed that the post of Signal Inspector Grade-III is a selection post and the procedure prescribed in Rules 215 and 219 is applicable. The guiding star for selection to the post of Signal Inspector Grade-III is the merit alone. Merit alone would be relevant for determining the right of promotion. It is the said principle which led to striking down for 15% marks in Rule 219 (g) of the Railway Manual.
8. No doubt, it is correct that a candidate who contains 60% marks of the aggregated qualifies for placing his name on the panel. However, if does not mean having obtained better marks in the selection process, the rule of seniority shall be made applicable for determining the right of promotion. The candidates are not from the common feeder channel nor the same scale or in the same cadre
9. Clause (j) of Rule 219 of the Railway Manual containing that the names of selected candidates i.e. the candidates who have obtained more than 60% marks in the written test, are to be arranged in the order of seniority. As mentioned above, there is no common seniority list on the basis of which their names can be placed in seniority for promotion against 20% Intermediate Quota posts. Clause (j) is wholly illegal and arbitrary as the rule of seniority sought to be introduced when there is none and when the promotion is to a selection post by a selection method on merit in the qualifying examination. It is more so, marks for seniority having been set aside by the Honble Supreme Court as arbitrary. Therefore, for the same reason as weighed with the Honble Supreme Court in Ramjayarams case (supra), promotion against 20% Intermediate Quota posts is required to be made only on the basis of merit and uninfluenced by seniority of the candidates occupying the lower eligible cadre. Thus, the said Rule is set aside. As a consequence thereof, the impugned order passed by the Tribunal is unjustified.
Consequently, the impugned order passed by the Tribunal is set aside. The promotion of respondents Nos.5 to 8 is set aside and respondents Nos.1 to 4 are directed to promote the petitioners to be post of Signal Inspector Grade-III from the same date when respondents No.5 to 8 were promoted. However, the petitioners shall not be entitled to arrears of pay and allowances but the entire period shall be taken into consideration for the purposes of pay fixation etc.
22. In O.A.No.1498/2009 decided on 8.10.2009, this Tribunal directed the respondents to re-draw the panel for the post of Staff Welfare Inspector in the grade of Rs.5000-8000 on the basis of comparative merit in terms of N Ramjayarams case (supra).
23. In Bhramesh Kumar Guptas case (supra) while considering the issue of promotion to the post of Loco Inspector as per procedure laid down in paragraph 219 (j) of IREM, the Full Bench of this Tribunal viewed that as long as there are different seniority lists of the candidates in feeder categories, the promotion has to be on the basis of merits. Paragraphs 8 to 11 of the aforesaid judgment read as under:-
8. Having given our utmost consideration to the rival contentions and after careful perusal of the documents placed before us, we are of the considered opinion that the drivers (Loco Pilot) of different trains constitute separate categories and the post of Loco Inspector is not in the normal channel of promotion for all the drivers. It is not disputed that there is a separate seniority list for each category of driver. The learned counsel for the Applicants suggested that all the seniority lists could be integrated by placing Mail Drivers on top and the drivers of the Goods trains at the bottom. It is easier said than done. We are aware that the brambly thicket of rules would make such an exercise well nigh impossible. Be that as it may, as long as the seniority list is separate, we cannot suggest that a combined seniority list should be framed. The matter is really simple. As long as different seniority lists operate, the promotions have to be on the basis of merit. It is almost axiomatic. When there is no common seniority list, promotion to a common posts cannot be made on the basis of seniority. We are also of the view that it does not appear from the rules that earlier the post of Loco Inspector was a post in the normal channel of promotion. It is for that reason that the illegality being committed by the official Respondents was set aside by the Punjab and Haryana High Court, a judgement which was upheld by the Honourable Supreme Court. It is in the light of the judgement of the Honourable Punjab and Haryana High Court that the circular of 19.06.2009 was issued. It cannot, therefore, be said that the rules of the game were changed midstream. Since the procedure being followed earlier was irregular, the correction was introduced that procedure would be applicable retrospectively.
9. Insofar as the judgement of the Tribunal in Bharat Lal (supra) is concerned, it is in accordance with the judgement of the Punjab and Haryana High Court. The intention of the Applicants was to show that the kind of diversity in categories of posts seen in the above case is necessary for the application of merit rule. We are unable to agree with this view. In the instant OA also there is diversity in as much as there are diverse seniority lists and emoluments. In so far as the judgement in Krishna Kumar (supra) is concerned, it is not in consonance with the judgement of the Punjab and Haryana High Court as Artisans in different grades have been treated to be on par.
10. In the light of the above discussion we hold that the selection for the post of Loco Inspector is a 'General Selection' post and the selection from amongst the drivers of different trains has to be made on the basis of merit and seniority would have no consideration in this. We also hold that issuance of circulars dated 19.06.2009 and 03.09.2009, which are primarily in compliance of the judicial verdicts, would not amount to change in the rules of the game midstream and would not vitiate the process of selection.
11. The reference is answered in the above terms. In the light of the above the substantive issue in the OA has also been resolved. There would be no need to remit the case back to the Division Bench. The OA is dismissed.
24. The moot question arises to be addressed is that once paragraph 219 (j) of IREM has been set aside by court of law, whether the same can be deemed operative till it is so quashed and set aside or has to be treated as non-existent in the relevant set of rules/books of law from the very inception. In view of the judgment of Honble Supreme Court in Golak Nath v. State of Punjab, (1967) 2 SCR 762, the power of overruling is vested only in Honble Supreme Court and that too in constitutional matters but the Honble High Court in exercise of its jurisdiction under Article 226 of the Constitution of India even without applying the doctrine of prospective overruling indisputably may grant limited relief in exercise of its writ jurisdiction. Normally, the decision of the Honble Supreme Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by it is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, imported and applied for the first time in Golak Naths case (supra). In Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727, the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by the Honble Supreme Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. Actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. There could be no prospective overruling unless it is so indicated in the particular decision. As considered in great detail by the House of Lords in National Westminster Bank Plc. v. Spectrum Plus Ltd., 2005 UKHL 41, the Prospective overruling takes several different forms. In its simplest form prospective overruling involves a court giving a ruling of the character sought by the bank in the present case. Overruling of this simple or pure type has the effect that the court ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the court decision. All transactions entered into, or events occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling. Besides the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the courts. In Union of India v. Madras Telephone SC & ST Social Welfare Assn., (2006) 8 SCC 662, the Honble Supreme Court observed that where the rights had been determined in favour of some employees in a duly constituted proceeding, which determination had attained finality, a subsequent judgment of a court or tribunal taking a contrary view would not adversely affect the applicants in whose cases the orders had attained finality.
25. Considering the aforementioned, the Honble Supreme Court in the case of P.V. George & others v. State of Kerala & others, (2007) 3 SCC 557 viewed that the law declared by the court will have retrospective effect if not otherwise said so specifically. Paragraphs 6 to 29 of the aforesaid decision read as under:-
6. The correctness of the said decision was questioned before another Division Bench of the said Court in Writ Appeal No.149 of 1990. By a judgment dated 14.01.1992, Paripoornan, J. (as His Lordship then was), held:
"Having heard counsel at length, we are of the view, that since the service involved in the present cases is the same as the one which came up for consideration in Daniel's case (1985 KLT 1057) and the Rules are also the same, the judgments appealed against, do not require interference. It is agreed that the Bench decision in Daniel's case (1985 KLT 1057) considered the identical rules in the same service (Government Presses Subordinate Service), which in issue in these two O.Ps. as well. Even so, learned Government Pleader, Mr. V.C. James, very forcefully submitted that the Bench decision in Daniel's case (1985 KLT 1057) is not good law, or, at any rate, requires reconsideration in view of the later Bench decision of this Court in Balakrishnan v. State of Kerala (1990 (1) KLT 66). We are unable to accept this plea for more reasons than one. The service rules, which came up for consideration in the later decision, Balakrishnan's case (1990 (1) KLT 66) is "Engineering Service (Radio and Electrical Branches) Rules, 1967". The import and impact in evaluating and upholding the reason for fixing the ratio in the later case are entirely different. The perspective is also different. That apart, the earlier bench decision in Daniel's case (1985 KLT 1057) does not appear to have been brought to the notice of the learned Judges, who rendered the decision in Balakrishnan's case (1990 (1) KLT 66). Prima facie, the later decision should be considered to be one rendered per inqurium. In these circumstances, we are satisfied that the ratio of the earlier bench decision in Danil's case (1985 KLT 1057) should govern the fate of the present two Original Petitions. That is what has been done by the two learned Judge of this Court.
In these circumstances, we are of the view that no interference is called for in these writ appeals. The judgments appealed against are confirmed. The writ appeals are dismissed. There shall be no order as to costs."
7. It is, however, not in dispute that Jagannadha Rao, J. (as the His Lordship then was) in Ravindran v. State of Kerala [1992 (1) KLT 524], took a different view, opining :
"In the present case the Government has filed a counter stating that after considering various aspects, the Government prescribed the necessary qualification for the various supervisory posts 'according to the requirement of duties and functions of the post'. It is also stated that special rules were made for the petitioner and other similarly situated persons. It is also stated that Government considered that seniors who are not diploma holders may be prejudiced by the rules as they stood in 1976, and that the ratio of 1 : 1 fixed for promotion between the certificate holders and diploma holders is quite reasonable and rational and hence valid. Having regard to the technical nature of the posts in the government presses we do not think that the ratio prescribed between diploma holders and certificate holders is in any way unreasonable. In view of the subsequent decision of the Supreme Court in Roop Chand's case, AIR 1989 SC 307, and also in view of the two judgments of the Division Bench in Balakrishnan's case and in Cheru's case, O.P. No. 1851 of 1984, we are not inclined to follow the decision of the Division Bench in Daniel v. State of Kerala, 1985 KLT 1057."
8. The conflict in the said decisions was noticed and eventually referred to a Full Bench in the Subaida Beevi (supra) by another Division Bench of the said Court. By a judgment dated 04.11.2004, the Full Bench held that the amended special rules for the Government Presses Subordinate Services Rules were not suffering from any infirmity and fixation of ratio of 1 : 1 for promotion to higher posts between diploma-holders and certificate-holders needs no interference. Whereas the decision in Daniel (supra) was expressly overruled, the decision in Ravindran (supra) was upheld, holding :
"We hold that the impugned amendment made in the Special Rules for the Government Presses Subordinate Service providing ratio of 1 : 1 for promotion to higher posts between diploma holders and certificate holders is not discriminatory and it is not violative of articles 14 and 16 of the Constitution of India. Government is bound to effect promotions on the basis of the amended Special Rules."
9. A special leave petition filed thereagainst was dismissed by this Court by an order dated 04.03.2005.
10. Appellants were issued notices as to why they shall not be reverted from the post of Assistant Superintendent pursuant to or in furtherance of the said decision of the Full Bench of the Kerala High Court. Legality of the said notices was questioned by the appellants herein in a writ petiton. By reason of the impugned judgment, the said writ petition has been dismissed by the High Court, opining :
"Since the Government has accepted the Full Bench decision and has taken steps, but, did not implement the same, only because of the stay order passed in the other writ petitions and has undertaken, since the vacation of the stay order, the judgment would be implemented, the contempt petitions are closed recording the undertaking that the judgment will be implemented within three months from today. With the above observations, all the writ petitions are dismissed and the contempt court petitions are closed."
11. Mr. C.S. Rajan, learned Senior Counsel appearing on behalf of the appellants, submitted that the High Court committed a manifest error insofar as it failed to take into consideration that in service matters ordinarily doctrine of prospective overruling would apply. Reliance in his behalf has been placed on Managing Director ECIL, Hyderabad v. B. Karunakar [(1993) 4 SCC 727], R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union of India and Others v. Virpal Singh Chauhan and Others [(1995) 6 SCC 684], Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201], Ajit Singh-II v. State of Punjab [(1999) 7 SCC 209], Baburam v. C.C. Jacob [(1999) 3 SCC 362], E.A. Sathyanesan v. V.K. Agnihotri and Others [(2004) 9 SCC 165], M. Nagaraj & Others v. Union of India & Others [(2006)10 SCALE 301].
12. It was furthermore submitted that the promotions were given to the appellants when the law laid down by the Kerala High Court in Daniel (supra) and Ravindran (supra) were in force and, thus, as the law was declared by the Full Bench only in the year 2005, the same was not applicable in their case.
13. Mr. Uday U. Lalit, learned Senior Counsel appearing for the respondents, would, however, support the judgment.
14. For the views we propose to take, it is not necessary for us to consider all the decisions relied upon by Mr. Rajan. The legal position as regards the applicability of doctrine of prospective overruling is no longer res integra. This Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be correct in opining that having regard to the decision of this Court in L.C. Golak Nath and Others v. State of Punjab and Another [AIR 1967 SC 1643) the power of overruling is vested only in this Court and that too in constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.
15. We are, however, in this case not concerned with such a situation. The law was in a state of flux in the sense that as far back as in the year 1992, the two Division Benches took contrary views; while one applied the ratio laid down in Daniel's (supra), another refused to follow the same.
16. The Full Bench of the Kerala High Court upheld the views of the Division Bench of the said Court in Ravindran (supra) and overruled Daniel (supra).
17. The Full Bench of the High Court indisputably did not say that the promotions which had already been granted would not be disturbed. The judgment of the Full Bench attained finality as special leave petition filed thereagainst was dismissed. Rules as amended by the State of Kerala on 01.07.1980 and 30.08.1984 were upheld.
18. If the said Rules ultimately were held to be constitutional, it was required to be given effect to. The law declared by a court is ordinarily affects the rights of the parties. A court of law having regard to the nature of adversarial system of our justice delivery system exercises adjudicatory role. Legal consequences are determined in respect of the matters which had taken place in the past.
19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto.
20. As would be noticed by us hereafter in Dr. Suresh Chandra Verma and Others v. The Chancellor, Nagpur University and Others [(1990) 4 SCC 55], this Court held :
"The second contention need not detain us long. It is based primarily on the provisions of Section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment "was not in accordance with the law at that time in force" and since the law at that time in force, viz., on March 30, 1985 when the appellants were appointed, was the law as laid down in Bhakre's case which was decided on December 7, 1984, the termination of the appellants is beyond the powers of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakre's case was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakre's case were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of Section 57(5) of the Act."
21. The ratio laid down by this Court, as noticed hereinafter, categorically shows the effect of a decision which had not been directed to have a prospective operation. The legal position in clear and unequivocal term was stated by a Division Bench of this Court in M.A. Murthy v. State of Karnataka & Others [(2003) 7 SCC 517] in the following terms :
"Learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab and Anr. In Managing Director, ECIL, Hyderabad and Ors., v. B. Karunakar and Ors., the view was adopted. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob. It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective over-ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma's casa No. II. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set, aside.
22. The effect of declaration of law, the rue of stare decisis and the consequences flowing from a departure from an earlier decision has been considered in great details by the House of Lords in National Westminster Bank plc v. Spectrum Plus Limited and Others [(2005) UKHL 41]: [2005 (3) WLR 58], opining :
"8. People generally conduct their affairs on the basis of what they understand the law to be. This 'retrospective' effect of a change in the law of this nature can have disruptive and seemingly unfair consequences. 'Prospective overruling', sometimes described as 'non-retroactive overruling', is a judicial tool fashioned to mitigate these adverse consequences. It is a shorthand description for court rulings on points of law which, to greater or lesser extent, are designed not to have the normal retrospective effect of judicial decisions.
9. Prospective overruling takes several different forms. In its simplest form prospective overruling involves a court giving a ruling of the character sought by the bank in the present case. Overruling of this simple or 'pure' type has the effect that the court ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the court decision. All transactions entered into, or events occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling.
10. Other forms of prospective overruling are more limited and 'selective' in their departure from the normal effect of court decisions. The ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the courts. There are other variations on the same theme.
11. Recently Advocate General Jacobs suggested an even more radical form of prospective overruling. He suggested that the retrospective and prospective effect of a ruling of the European Court of Justice might be subject to a temporal limitation that the ruling should not take effect until a future date, namely, when the State had had a reasonable opportunity to introduce new legislation: Banco Popolare di Cremona v Agenzia Entrate Uffficio Cremona (Case C-475/03, 17 March 2005), paras 72-88."
[See also Lord Rodger of Earsferry - 'A Time for Everything under the Law : Some Reflections on Retrospectivity' [(2005) 121 LQR 55, 77].
23. Lord Nicholls of Birkenhead speaking for the House of Lords clearly held that the power to apply prospective overruling is available to the House of Lords also.
24. In Queen (on the Application of Ernest Leslie Wright) v. Secretary of State for the Home Department [(2006) EWCA Civ. 67], it was observed :
"42. The English law in this respect is developing rapidly. Prospective rulings seemed anathema to Lord Wilberforce in Launchbury v Morgans [1973] AC 127, 137 and Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 379. By the time of Regina v Governor of Brockhill Prison, ex p Evans (No. 2) [2001] 2 AC 19, Lord Slynn at p. 26 H considered that the effect of judicial rulings being prospective might in some situations be "desirable and in no way unjust", though Lord Steyn at p. 28 B thought the point was a "novel one". With some perspicacity Lord Hope of Craighead foresaw at p. 36 that "the issue of retrospectivity is likely to assume an added importance when the Human Rights Act 1998 is brought into force". Lord Hobhouse at p.48 F would have none of it. The latest in this line of authority seems to be In re Spectrum Plus Ltd (in liquidation) [2005] UKHL 41, [2005] 3 WLR 58 where the danger was acknowledged that prospective overruling "would amount to judicial usurpation of the legislative function", per Lord Nicholls at para. 28 but nonetheless he noted that, especially in the human rights field, " 'Never say never' was a wise judicial precept", (para. 42).
43. The question has attracted interest in the academic journals. See Arden L.J., "Prospective Overruling", (2004) LQR 7; Lord Rodger of Earlsferry, "A Time for Everything under The Law; Some Reflections on Retrospectivity", (2005) 121 LQR 57 and Duncan Sheehan and T. T. Arvind, "Prospective Overruling and Fixed/Floating Charge Debate", (2006) 122 LQR 20."
25. In service matters, this Court on a number of occasions have passed orders on equitable consideration. But the same would not mean that whenever a law is declared, it will have an effect only because it has taken a different view from the earlier one. In those cases it is categorically stated that it would have prospective operation.
26. We are not oblivious that in Union of India v. Madras Telephone SC & ST Social Welfare Association [2006) 9 SCALE 626], this Court observed that where the rights had been determined in favour of some employees in a duly constituted proceeding, which determination had attained finality, a subsequent judgment of a Court or Tribunal taking a contrary view would not adversely affect the applicants in whose cases the orders had attained finality.
27. The rights of the appellants were not determined in the earlier proceedings. According to them, merely a law was declared which was prevailing at that point of time; but the appellants were not parties therein. Thus, no decision was rendered in their favour nor any right accrued thereby.
28. In E.A. Sathyanesan (supra), a Division Bench of this Court) of which one of us was member) noticed :
"In view of the aforementioned authoritative pronouncement we have no other option but to hold that the Tribunal committed a manifest error in declining to consider the matter on merits, upon, the premise that Sabharwal and Ajit Singh-I had been given a prospective operation. The extent to which the said decisions had been directed to operate prospectively, as noticed above, has sufficiently been explained in Ajit Singh-II and reiterated in M.G. Badappanavar (spura)."
29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf.
26. In N Ramjayarams case (supra), the Honble Supreme Court specifically viewed that in terms of paragraph 219 (j) of IREM, selection should be made primarily on the basis of overall merit and no marks should be assigned for seniority. Paragraphs 3 to 5 of the judgment read as under:-
3. The only controversy in this case is : whether the contesting respondents are entitled to be given preferential 15 marks over the appellant in selection as Law Assistants. It is an admitted position that in the written examination held by the respondents 1 and 2, the appellant had secured more than 60% in written examination and in viva-voca he had fared well. In view of the fact that the contesting respondents have been assigned 15 marks for their seniority, he could not get selected. The appellant has challenged awarding of 15 marks as discriminatory and violative of Article 14 of the Constitution. This Court has issued notice on August 28, 1995, to the following effect :
"It would appear that Rule 219 (g) of the Railway Establishment Code provides procedure for selection on the basis of over all merit. The Tribunal in this case proceeded on the basis of awarding marks to find the suitability of the candidates for selection, awarded 50 per cent of marks to professional ability; personality, academic qualifications, leadership quality-20 marks; record of service-15 marks; seniority-15 marks. The grievances of the petitioner, though he is having requisite five years service other persons, having higher scale of pay is preferred. He cannot be discriminated on the basis of having higher scale of pay and seniority cannot be adjudged on that basis. It is contended by Mr. C. Sitaramiah, the learned senior counsel for the petitioner that the sensory has to be adjudged with reference to the length of service but not on the basis of scale of pay being drawn and the person drawing higher scale of pay cannot be put above the candidates who are drawing lesser scale of pay by reason of the fact that the persons now made in the list have been drawn from different sources. .... disability and discrimination to some of the departments. The test laid down is arbitrary and unconstitutional. To consider this question, notice is issued."
4. The respondents 'Nos. 1 and 2 have filed counter-affidavit. It is admitted therein that the appellant had secured higher marks in the written and viva-voce. It is stated that in view of Rule 320 of the Railway Establishment Code, the respondents are seniors to the appellant. While the appellant is drawing scale of pay of Rs. 1200-2040/- respondents are drawing scale of pay of Rs. 1400-2660/- and thereby they became seniors. On that premise they were given 15 marks over the appellant. As a consequence, they came to be selected.
5. Rule 320 of the Railway Establishment Code reads as under:-
"Relative Seniority of Employees in an Intermediate Grade Belonging to Different Seniory Units Appearing For a Selection/Non-Selection Post In Higher Grade.
When a post (Selection as well as non-selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning inter-se seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non-fortuitous service should be taken into account for this purpose."
A reading of that rule would indicate that in assigning inter-se seniority irrespective of the date of confirmation of an employee the continuous length of service in the higher scale of pay was given preference to the seniority over the persons who are drawing lesser scale of pay in a selection as well as non-selection post to be filled by considering the staff of different seniority units. The said rule has no application to the facts in this case. The selection is required to be done on the basis of the criteria laid down under Rule 219 (g) of the Railway Manual. 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 the relative weightage laid down was as under :-
"219 (g) of the Indian Railways Manual states 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. 20 --
iii) A record of service. 15 --
iv) Seniority. 15 --
In this case since the contesting respondents are not from the same unit but of different units, Rule 320 stands excluded, weightage of 15 marks for seniority given to the respondents obviously is illegal. Therefore, there is force in the contention of the appellant that his non-selection tantamounts to arbitrary exercise of power on the part of the respondents Nos. 1 and 2. We set aside the order of the CAT, Hyderabad made in O. C. No. 1039/92, dated March 21, 1995. The respondents are directed to consider the selection according to rules and make appointment according to law.
27. Ex facie, in case of N Ramjayarams case (supra), the Honble Supreme Court had not quashed the provisions of paragraph 219 (j) of IREM. Their Lordships only noticed the provisions of paragraph 219 (g) of IREM and emphasized on the ramifications of the same. Though Honble Punjab and Haryana High Court while deciding the Subhash Chand Joshis case (ibid) set aside the paragraph 219 (j) of IREM but did not pronounce upon the fate of action already taken on the basis of said provision. In view of the law declared by the Honble Supreme Court in Golak Naths case (supra) even if it could have decided to do so might not apply the doctrine of prospective overruling, thus did not express upon the action already set in motion in terms of the provisions of rules declared ultra vires. Apparently, in view of the contentions put forth by the learned counsels for the parties and various judicial pronouncements cited on the issue, we are called upon to touch one more dimension of the controversy, i.e., the precedents to be considered as binding in the facts of a particular case. One important judgment in this regard is Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another, 2004 (6) SCALE 232. In the said case, the Honble Supreme Court viewed that the Court should not place reliance on the decision without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems nor as provisions of the statute and that too being taken out of their context. Judgments of Courts are not to be construed as statutes. Paragraphs 12 to 15 of the said judgment read as under:-
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark on lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761), Lord MacDermott observed: (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge...."
13. In Home Office v. Dorset Yacht Co. Lord Reid said (All ER p. 291 g-h), "Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) observed: "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board Lord Morris said: (All ER p. 761c) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
28. In State of Punjab & others v. Surinder Kumar & others, (1992) 1 SCC 489, the Honble Supreme Court viewed that a decision is available as a precedent only if it decides a question of law. Paragraphs 6 and 7 of the said judgment read as under:-
6. A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a Court whose judgment is not subject to further appeal and other Courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher Court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Art. 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.
7. It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications but this discretion has to be confined in declining to entertain petitions and refusing to grant relief, asked for by petitioners, on adequate considerations; and it does not permit the High Court to grant relief on such a consideration alone.
29. In Saurashtra Cement & Chemical Industries & Another Etc. v. Union of India & others, AIR 2001 SC 8, it could be held that the basic feature of law is its certainty and in the event of any departure therefrom the society would be in utter confusion and the resultant effect of which would be legal anarchy and judicial indiscipline a situation which always ought to be avoided. Paragraph 35 of the judgment reads as under:-
35. On the wake of the aforesaid, we do feel it expedient to record that taking recourse to the doctrine as above would be an imperative necessity, so to avoid uncertainty and confusion, since the basic feature of law is its certainty and in the event of any departure therefrom the society would be in utter confusion and the resultant effect of which would be legal anarchy and judicial indiscipline - a situation which always ought to be avoided. The central legislature introduced the legislation (MMRD Act) in the year 1957 and several hundreds and thousands of cases have already been dealt with on the basis thereof and the effect of a declaration of a contra law would be totally disastrous affecting the very basics of the revenue jurisprudence. It is true that the doctrine has no statutory sanction but it is a rule of convenience, expediency; prudence and above all the public policy. It is to be observed in its observance rather than in its breach to serve the people and subserve the ends of justice.
30. In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & others, (2005) 8 SCC 534, it could be viewed that the doctrine of stare decisis is generally to be adhered to, because well-settled principles of law founded on a series of authoritative pronouncements ought o be followed. Yet, the demands of the changed facts and circumstances, dictated by forceful factors supported by logic, amply justify the need for a fresh look. Paragraphs 111 to 120 of the judgment read as under:-
111. Stare decisis is a Latin phrase which means "to stand by decided cases; to uphold precedents; to maintain former adjudication". This principle is expressed in the maxim "stare decisis et non quieta movere" which means to stand by decisions and not to disturb what is settled. This was aptly put by Lord Coke in his classic English version as "Those things which have been so often adjudged ought to rest in peace". However, according to Justice Frankfurter, the doctrine of stare decisis is not "an imprisonment of reason" (Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.
112. The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience.
113. According to Professor Lloyd concepts are good servants but bad masters. Rules, which are originally designed to fit social needs, develop into concepts, which then proceed to take on a life of their own to the detriment of legal development. The resulting "jurisprudence of concepts" produces a slot-machine approach to law whereby new points posing questions of social policy are decided, not by reference to the underlying social situation, but by reference to the meaning and definition of the legal concepts involved. This formalistic a priori approach confines the law in a strait-jacket instead of permitting it to expand to meet the new needs and requirements of changing society (Salmond on Jurisprudence, Twelfth Edition, at p.187). In such cases Courts should examine not only the existing laws and legal concepts, but also the broader underlying issues of policy. In fact presently, judges are seen to be paying increasing attention to the possible effects of their decision one way or the other. Such an approach is to be welcomed, but it also warrants two comments. First, judicial inquiry into the general effects of a proposed decision tends itself to be of a fairly speculative nature. Secondly, too much regard for policy and too little for legal consistency may result in a confusing and illogical complex of contrary decisions. In such a situation it would be difficult to identify and respond to generalized and determinable social needs. While it is true that "the life of the law has not been logic, it has been experience" and that we should not wish it otherwise, nevertheless we should remember that "no system of law can be workable if it has not got logic at the root of it" (Salmond, ibid, pp.187-188).
114. Consequently, cases involving novel points of law, have to be decided by reference to several factors. The judge must look at existing laws, the practical social results of any decision he makes, and the requirements of fairness and justice. Sometimes these will all point to the same conclusion. At other times each will pull in a different direction; and here the judge is required to weigh one factor against another and decide between them. The rationality of the judicial process in such cases consists of explicitly and consciously weighing the pros and cons in order to arrive at a conclusion. (Salmond, ibid, pp. 188).
115. In case of modern economic issues which are posed for resolution in advancing society or developing country, the court cannot afford to be static by simplistically taking shelter behind principles such as stare decisis, and refuse to examine the issues in the light of present facts and circumstances and thereby adopt the course of judicial "hands off". Novelty unsettles existing attitudes and arrangements leading to conflict situations which require judicial resolution. If necessary adjustments in social controls are not put in place then it could result in the collapse of social systems. Such novelty and consequent conflict resolution and "patterning" is necessary for full human development. (See - The Province and Function of Law, Julius Stone, at pp.588, 761and 762)
116. Stare decisis is not an inexorable command of the Constitution or jurisprudence. A careful study of our legal system will discern that any deviation from the straight path of stare decisis in our past history has occurred for articulable reasons, and only when the Supreme Court has felt obliged to bring its opinions in line with new ascertained fact, circumstances and experiences. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8).
117. Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the creative elements implicit in the very process of determining ratio decidendi, it is not surprising that judicial process has not been crippled in the discharge of its duty to keep the law abreast of the times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with changing society, and, "every age should be mistress of its own law" - and era should not be hampered by outdated law. "It is revolting", wrote Mr. Justice Holmes in characteristically forthright language, "to have no better reason for a rule of law than it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past". It is the readiness of the judges to discard that which does not serve the public, which has contributed to the growth and development of law. (ibid, p. 68)
118. The doctrine of stare decisis is generally to be adhered to, because well settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances dictated by forceful factors supported by logic, amply justify the need for a fresh look.
119. Sir John Salmond, while dealing with precedents and illustrating instances of departure by the House of Lords from its own previous decisions, states it to be desirable as 'it would permit the House (of Lords) to abrogate previous decisions which were arrived at in different social conditions and which are no longer adequate in present circumstances. (See _ Salmond, ibid, at p.165). This view has been succinctly advocated by Dr. Goodhart who said: "There is an obvious antithesis between rigidity and growth, and if all the emphasis is placed on absolutely binding cases then the law looses the capacity to adapt itself to the changing spirit of the times which has been described as the life of the law". (ibid, p.161) This very principle has been well stated by William O' Douglas in the context of constitutional jurisprudence. He says: "So far as constitutional law is concerned, stare decisis must give way before the dynamic component of history. Once it does, the cycle starts again". (See _ Essays on Jurisprudence from the Columbia Law Review, 1964, at p.20)
120. We have already indicated that in Quareshi-I, the challenge to the constitutional validity of the legislation impugned therein, was turned down on several grounds though forcefully urged, excepting for one ground of 'reasonableness'; which is no longer the position in the case before us in the altered factual situation and circumstances. In Quareshi-I the reasonableness of the restriction pitted against the fundamental right to carry on any occupation, trade or business determined the final decision, having been influenced mainly by considerations of weighing the comparative inconvenience to the butchers and the advancement of public interest. As the detailed discussion contained in the judgment reveals, this determination is not purely one of law, rather, it is a mixed finding of fact and law. Once the strength of the factual component is shaken, the legal component of the finding in Quareshi-I loses much of its significance. Subsequent decisions have merely followed Quareshi-I. In the case before us, we have material in abundance justifying the need to alter the flow of judicial opinion.
31. Coming to the facts of the present case and the judicial precedents having close bearing, though at the cost of repetition, we may notice that in N Ramjayarams case (supra) paragraph 219 (j) of IREM was not brought to the notice of the Honble Supreme Court and taking note of paragraph 219 (g) of the said Manual, their Lordships could view that the selection to a post filled from amongst the staff of different seniority units could not be based on seniority and had to be necessarily on the basis of merit. It was only in view of the said judgment the Honble Punjab and Haryana High Court could set aside clause (j) of paragraph 219 of IREM. Thus, what we necessarily need to see is whether the selection process to the post of Sr. PWS against 25% quota is regulated by paragraph 219 (j) of IREM. We need not make any roving inquiry to arrive at a conclusive finding in this regard for the simple reason that in the Review Application No.263/2010 filed in the present O.A. itself, the official respondents categorically submitted as under:-
Para 2. That the contents of para 2 of the Review Application is admitted to the extent of the matter of record and rest and contentions are wrong and denied. It is submitted that after due process by the Dept. Promotional Committee (DPC) in regards to assessment of record of service of the candidates, the panel consisting of 25 candidates was drawn as per instruction contained in para 219(j) clause (iii) that final panel in such cases is required to be drawn up in order of seniority from amongst those who secure 60% marks in the aggregate, provided that those securing a total of 80% marks or more marks are classed as outstanding and placed at the top of panel in order of seniority.
It is further submitted that as per the procedure laid down in IREM Vol. I para 219(j) (iii) has already been struck down by the Honble courts and therefore the Honble Tribunal in order dated 05.03.2010 in Original Application No.2377 of 2008 quash and set aside provisional panel dated September, 2008. It is further submitted that has been decided by the competent authority to implement the judgment and to form the panel in accordance with the merit.
It is further submitted that accordingly a review DPC was conducted to consider the candidature in view of the judgment passed by the Honble Tribunal.
It is further submitted that Sh. Balbir Singh and others applicants in the present review application have been recommended by review DPC for de-panelment and they filed the present Review Application before the Honble Tribunal.
Para 3 xx xx xx Para 4 xx xx xx Para 5 That the contents of the para 5 of the Review Application is admitted to the extent of the matter of record and rest and contentions are wrong and denied. It is submitted that after due process by the Dept. Promotional Committee in regards to assessment of record of service of the candidates, the panel consisting of 25 candidates was drawn as per instruction contained in para 219(j) clause (iii) that final panel in such cases is required to be drawn up in order of seniority from amongst those who secure 60% marks in the aggregate, provided that those securing a total of 80% marks or more marks are classed as outstanding and placed at the top of panel in order of seniority.
It is further submitted that as per the procedure laid down in IREM Vol. I para 219(j) (iii) has already been struck down by the Honble Courts and this Honble Tribunal it has been decided by the competent authority to implement the judgment and to form the panel in accordance with the merit by conducting review DPC.
Para 11 & Para 12 That the contents of the paras 11 & 12 of the Review Application is not admitted as stated by the applicant hence denied. It is submitted that the earlier panel was prepared as per para 219(j) of the IREM but in view of the order dated 05.03.2010 in Original Application No.2377 of 2008 passed by this Honble Tribunal a review DPC was conducted on the basis of merit.
Para 13 To Para 16 xx xx xx Para 17 & Para 18 That the contents of the paras 17 & 18 of the Review Application are not admitted as stated by the applicant hence denied. It is submitted that the earlier selection was conducted as per para 219 (J) of IREM but in view of the order dated 05.03.2010 passed by this Honble Tribunal in Original Application no.2377 of 2008 a review DPC was conducted on the basis of the merit.
32. Not only this, when this Tribunal had passed the order dated 5.3.2010 disposing of the present O.A. and subsequently recalled the said order vide order dated 9.12.2010 in R.A.No.263/2010, the official respondents had issued order in September 2010 redrawing the panel of the selected candidates, including the names of the applicants herein.
33. Nonetheless, in Mithilesh Kumars case (supra), the Honble Supreme Court ruled that those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced should not be affected by change in the norms of the recruitment rules. Paragraph 19 of the said judgment reads as under:-
19. Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The Respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the Respondent. The question is whether those altered norms will apply to the Respondent.
34. In the present case, the selection process was set in motion on 17.4.2007 when no decision in the case of Subhash Chand Joshis case (supra) had yet been taken. All those who participated in the selection did not know that the norms in terms of which they were being considered would be set aside by the Honble Punjab and Haryana High Court in the proceedings in which they were not the party. Thus, when we need to follow the judgment of the Honble Punjab and Haryana High Court (ibid), we also need to give due regard to the decision of the Honble Supreme Court in Mithilesh Kumars case (supra).
35. In the service law, a situation may arise more than ones when we need to reconcile the binding precedents on a particular issue. In the present case such reconciliation can be done by taking a view that when the applicants would be entitled to their promotions to the post in question on merits, provided the Gangman, Keyman and Mates Trolleyman, Gateman and Chowkidar, who are eligible to be considered for their promotion against the said post against 25% quota are in different seniority units, those who have already got the benefit of existing norm on promotion may not be upset. Thus, justice can be administered to the parties by giving a direction to the official respondents to find out whether the incumbents from the feeder category considered for their selection against the post in question belong to different seniority units and if so to do the exercise of determining merit positions of the applicants keeping in view the number of vacancies and if they are found sufficiently high in merits, they should be given promotion from the date of promotion as given to the private respondents against future vacancies.
36. There is another sphere of law, i.e., in service matters, settled position should not be unsettled after long time. In other words, even when there is procedural irregularity but noticed after long delay, the irregularly may be ignored. In B.N. Bajpai & others v. Union of India & others, 2002 II AD Delhi 557, the Honble High Court of Delhi viewed that the settled seniority position should not be unsettled after long time. Relevant excerpt of the judgment reads as under:-
26. In Pilla Sita Ram v. UOI, 1996 (4) JT 731, the Apex Court held that appointment of the petitioner had been delayed for no fault of his. He came to be appointed in 1981 in terms of extant rules and, thus he was entitled to be given a rank and appointment made accordingly.
27. The learned Tribunal also failed to take into consideration that having regard to the fact that petitioners were appointed in 1994, their seniority should not have been directed to be disturbed by issuing a direction as has been done in para 12 (d) of its order on having regard to the delay and laches on the part of the applicants. In Govt. of Andhara Pradesh and Ors. V. Mohd Ghouse Mohinuddin and Ors. 2001 (3) All India Services Law Journal, 479, the Apex Court observed that a practice followed for a long time should not ordinarily be interfered with. It was held:
It is cardinal principle of Service Jurisprudence, that a particular method or procedure adopted for a long time, need not be ordinarily interfered with, unless such method is repugnant to any constitutional provision or is contrary to any statutory rule. That apart, under the Administrative Tribunal Act, a period of limitation is provided for in Section 21. In this view of the matter, when the units formed the cadre, pursuant to notifications issued by the State Government, in the year 1976, in respect of non-gazetted posts and on that basis , appointment to and promotion within the cadre was being considered, in respect of non-gazetted posts, applications filed before the Tribunal in 1992-1993, after expiry of more than 15 years, could not have been entertained and the settled position could not have been unsettled, as has been done by the tribunal in its final order. On this ground alone, the impugned order cannot be sustained.
37. In Shiba Shankar Mohapatra & others v. State of Orissa & others, (2010) 12 SCC 471 it could be held by the Honble Supreme Court that the fact of delay on challenge to promotion and seniority at belated stage should be rejected. Paragraphs 18 and 29 of the judgment read as under:-
18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."
xx xx xx xx xx xx
29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).
38. Also in K.R. Mudgal & others v. R.P. Singh & others, (1986) 4 SCC 531, followed by the Honble Supreme Court in the aforesaid judgment, it could be held that there should be no sense of uncertainty amongst the government servants. Anyone who feels aggrieved by the seniority assigned to him should approach the court as early as possible. Paragraph 7 of the judgment reads as under:-
7. The respondents in the writ petition raised a preliminary objection to the writ petition stating that the writ petition was liable to be dismissed on the ground of laches. Although. the learned single Judge and the Division Bench have not disposed of the above writ petition on the ground of delay, we feel that in the circumstances of this case the writ petition should have been rejected on the ground of delay alone. The first draft seniority list of the Assistants was issued in the year 1958 and it was duly circulated amongst all the concerned officials. In that list the writ petitioners had been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners, to the seniority list of 1961, but only the petitioner No. 6 in the writ petition represented against the seniority list of 1965. We have already mentioned that the 1968 seniority list in which the writ petitioners had been shown above the respondents had been issued on a misunderstanding of the Office Memorandum of 1959 on the assumption that the 1949 Office Memorandum was not applicable to them. The June 1975 seniority list was prepared having regard to the decision in Ravi Varma's case (AIR 1972 SC 670) (supra) and the decison of the High Court of Andhra Pradesh in the writ petitions filed by respondent Nos. 7 and 36 and thus the mistake that had crept into the 1968 list was rectified. Thus the list was finalised in January, 1976. The petitioners who filed the writ petition should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after sevaral years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointment of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R. S. Makashi v. I. M. Menon (1982) 2 SCR 69 : (AIR 1982 SC 101). In the said decision this Court observed at page 100 (of SCR) : (at P. 115 of AIR) thus :
"In these circumstances, we consider that the High Court was wrong in overruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed."
39. Thus, in view of the aforementioned judgment of the Honble Supreme Court, even if the provisions of paragraph 219 (j) of IREM have been specifically set aside, all such selections based on such paragraph finalized one and a half years prior to filing of the O.A. may not be upset. We could have applied the said principle in the present O.A. also, but we find that the select panel issued in September 2008 was challenged by the applicants on 3.11.2008, i.e., well within few months.
40. As far as the plea of estoppel raised by the official as well as private respondents is concerned, it is by now stare decisis that having participated in a selection process and remained unsuccessful in the same, a person would not be permitted to assail the norms or procedure followed in such selection. Such view was taken by the Honble Supreme Court in Vijendra Kumar Verma v. Public Service Commission, Uttrakhand & others, (2011) 1 SCC (L&S) 21 which was followed by this Tribunal in Prem Singhs case (supra). For easy reference, paragraphs 12 and 13 of the aforesaid read as under:-
12. To the similar effect are also the various decisions of the Apex Court where it has been held that challenge to the recruitment process cannot be made by a person, who has participated in the selection process. At this stage, we wish to refer to the latest decision of the Apex Court in the case of Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & others, (2011) 1 SCC (L&S) 21 wherein the Apex Court has held that challenge to selection criteria after participating in selection process is impermissible. At this stage, we wish to reproduce the paragraph 25 to 28of the said judgment, which thus reads:
25. In this connection, we may refer to the decision of the Supreme Court in Dr. G. Sarana Vs. University of Lucknow & Ors. reported in (1976) 3 SCC 585 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus:-
"15.... He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
26. In P.S. Gopinathan Vs. State of Kerala and Others reported in (2008) 7 SCC 70, this Court relying on the above principle held thus;
"44. .....Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992.The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lucknow......."
27. In Union of India and Others vs. S. Vinodh Kumar and Others reported in (2007) 8 SCC 100 at paragraph:
18.. it was held that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
28. Besides, in K.H. Siraj vs. High Court of Kerala and Others reported in (2006) 6 SCC 395 in paragraph 72 and 74 it was held that candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel.
13. To similar effect is the another decision of the Apex Court in Manish Kumar Shahi v. State of Bihar & others, (2011) 1 SCC (L&S) 256 where, in paragraph 16, the Apex Court has held as follows:
16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioners name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, (1995) 3 SCC 484, Marripati v. Govt. of A.P., (2007) 11 SCC 522, Dhananjay Malik v. State of Uttranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515.
41. In the said case, this Tribunal could take a view that filing of the said O.A. after almost two and a half years of finalization of seniority could also be a reason for dismissal of that O.A. Paragraph 15 of the said order reads as under:-
15. Further the applicants have not given any satisfactory explanation as to why they have not approached this Tribunal at the earliest. It may be stated that the judgment rendered by the Punjab & Haryana High Court on 9.4.2008 stipulates that the panel has to be prepared on merit and not on seniority basis.
Admittedly, the panel in respect of 125 posts of Guard, for which purpose steps for filling up the vacancies were taken on 28.3.2008, the panel was prepared much after the decision of the High Court on 22.11.2008. It was open for the applicants to make representation before the authorities that the result of the said exam may not be declared in terms of law laid down by the Punjab & Haryana High Court. It may be stated that the result was declared on 2.7.2008, i.e., three months after the judgment was rendered by the High Court. Since the applicants had qualified in the written examination, they conveniently did not agitate the matter that the panel should be prepared on merit basis and not on seniority basis. Even the circular issued by the Railway Board vide letter dated 19.6.2009 stipulates that the selection already made shall not be re-opened and the criteria for the purpose of preparing the panel on the basis of merit shall be in vogue from the date of issue of the instructions. It may be stated that the applicants have filed this OA only on 2.3.2011.
42. Ex facie, in view of the settled position of law on the subject, any belated challenge to promotion or seniority may not be entertained to avoid unsettling the settled position. Similarly, in the absence of impleadment of the employees whose selection is likely to be adversely affected by grant of relief in a matter, the challenge to selection may not be entertained. In the present case, both the grounds do not subsist. The present O.A. was filed within few months of preparation of select panel and those who were empanelled for their promotion in order of seniority subject to qualifying the selection are parties before us and some of them are represented through counsels. It is correct that the grounds raised by the applicants in paragraph 5 (a) to (i) of their petition, i.e., the selection process was delayed and the date of meeting of the DPC was deferred from 25.6.2008 to 22.8.2008 and 12.9.2008 cannot to be countenanced in view of the settled position of law that the candidate, who participated in the selection process, cannot challenge the said select panel on being declared unsuccessful. But the said proposition would not apply when the unsuccessful candidates approach the Court or the Tribunal to seek the benefit of law declared by Honble Supreme Court and High Court. As has been noticed hereinabove, the applicants have prayed for preparation of fresh panel on the basis of the judgment of Honble Punjab and Haryana High Court. In other words, they want themselves to be considered for promotion to the post of Sr. PWS on merits. The principle of promissory estoppel on disability to question a selection after participation and failure in the same may not apply in a situation where an employee seeks the benefits of the judgment of Honble High Court upheld by the Apex Court. It is not open for us to take a view that even if the Honble Punjab and Haryana High Court had held otherwise, the applicants would not be entitled to their promotion to the post in question on merits. In Raj Kumar & others v. Shakti Raj & others, (1997) 9 SCC 527, the Honble Supreme Court viewed But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Paragraph 16 of the said judgment reads as under:-
16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J and K, (1955) 3 SCC 486 : (1995 AIR SCW 1109) and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principle of estopped by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.
43. In Special Land Acquisition Officer v. Karigowda & others, (2010) 5 SCC 708, it could be viewed by the Apex Court that an established maxim "Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint fines litium", casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. Such doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases particularly covered cases, expeditiously and in consonance with the law of precedents. Paragraph 15 of the said decision reads as under:-
105. An established maxim "Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint fines litium", casts a duty upon the Court to bring litigation to an end or at least endure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases particularly covered cases, expeditiously and in consonance with the law of precedents. There should be speedy disposal of cases particularly where the small land owners have been deprived of their small land-holdings by compulsive acquisition. Any unnecessary delay in payment of the compensation to them would cause serious prejudice and even may have adverse effect on their living. In these circumstances, we consider it necessary to issue appropriate directions to the State authorities and request the Courts, where cases are pending arising from the ssame notification, to dispose of the pending proceedings without any further delay.
44. Thus following the view taken by the Honble Supreme Court in the case of Raj Kumars case (supra), we are of the considered view that participation of the applicants in selection would not debar them from seeking the benefit of judgment of Honble Punjab and Haryana High Court, which has since attained finality. We are also convinced not to reject the present Original Application as being barred by the principle of estoppel and acquiescence also for the reason that in view of the judgment of the Honble Punjab and Haryana High Court, the official respondents themselves issued RBE No.113/2009 [No.E(NG)I-2008/PM7/4 SLP dated 19.6.2009 which provides that in cases of promotion to General Posts in which candidates are called from different categories, whether in the same department or from different departments and where zone of consideration, is not confined to three times the number of staff to be empanelled, panels should be strictly prepared as per merit, with reference to marks obtained by the candidates in Professional ability and Record of Service. For easy reference, the said letter is extracted hereinbelow:-
RBE No.113 /2009Sub: Selection Procedure for promotion to General Selection Posts Placement of names on panel instructions regarding.
[No. E[NG]I-2008/PM7/4 SLP dated 19.06.2009 As the Railways are aware, in pursuance of Honble Apex Courts judgement dt. 15.03.1996, in M. Ramjayram Vs. General Manager, South Central Railway and others, 1996[1] SC SLJ 536, it was held that it is illegal to award marks for Seniority, for promotion to General Posts, i.e., those outside the normal channel of promotion, for which eligible volunteers are called from different categories whether in the same department, or, from different departments, Board vide their letter No. E[NG]I-98/PM1/11 dt. 16.11.1998, had modified the Selection Procedure to such General posts. These instructions are contained in para 219[j] of Indian Railway Establishment Manual [IREM], Vol.I, 1989, as amended from time to time. In terms of instructions contained in clause [iii] below para 219[j], final panel in such cases, is required to be drawn up in the order of seniority from amongst those who secure a minimum of 60% marks in professional ability and 60% in the aggregate, provided that those securing a total of 80% , or, more marks, are classed as Outstanding and placed at the top of the panel, in the order of seniority. Besides the above provisions, separate instructions prescribing different methods for placements of names on panel, in a few categories, viz., LDCE quota in the category of Sr. Clerks [4500-7000], Commercial/Traffic Apprentices [Rs.5500-9000], for induction of Intermediate Apprentices for eventual absorption as JE-II [Rs.5000-8000] in various technical departments, qualified staff quota in the category of Skilled Artisans Gr.III [Rs.3050-4590] in various engineering departments, LDCE quota in the categories of Office Superintendent Gr.II [Rs.5500-9000] and Staff & Welfare Inspectors Gr.I [Rs.6500-10500] etc., have also been issued.
2. The instructions regarding formation of panel in the order of seniority, have been under challenge before various Courts /Tribunals for granting relief in terms of placement of names on panel in the order of merit based on the marks obtained in such General Selections. The provision of placement of names on final panel in the order of seniority, as indicated above, has been struck down by High Court /Punjab & Haryana, in Writ Petition No. 4746/2002 vide judgement dt.09.04.2008. High Court have, inter-alia, held that, since in such General Selections, candidates are not from the same seniority units and there is no common seniority list on the basis on which their names can be placed in the order of seniority, therefore, promotion to such posts should be made only on the basis of merit, uninfluenced by seniority of the candidates. The Honble High Court have accordingly declared the provision of arranging the names on final panel in the order of seniority in General Selections as wholly illegal and arbitrary and set aside the same. The Special Leave Petition No.16774 /2008 filed be fore the Honble Supreme Court against the High Courts above-mentioned judgement, has also been dismissed on 05.01.2009.
3. The matter has, accordingly been carefully considered by the Board and it has been decided that in cases of promotion to General Posts in which candidates are called from different categories, whether in the same department or from different departments and where zone of consideration, is not confined to three times the number of staff to be empanelled, panels should be strictly prepared as per merit, with reference to marks obtained by the candidates in Professional ability and Record of Service. Subject to usual relaxation for SC/ST staff, wherever permissible, those securing less than 60% in professional ability and 60% in aggregate will not be considered eligible for inclusion in the panel. Further, the service records of only those candidates who secure a minimum of 60% marks in professional ability, shall be assessed. Since the final panel has to be drawn on the basis of merit, there will be no scope for erstwhile provision of placement of candidates who secure 80% or more marks, classified as Outstanding, on top of the panel.
3.1. These instructions will supersede all previous instructions, as far as the same relate to the provision of arranging names on the final panel in the order of seniority, for promotion to General Posts. However, all other conditions, as contained in the specific instructions for a particular category, shall continue to hold good.
3.2. These instructions shall be applicable with immediate effect, i.e., from the date of issue of these orders, to all panels for promotion to General Posts. Any previous selection panel drawn up otherwise, before issue of this letter, need not be reopened.
4. Accordingly, the Indian Railway Establishment Manual, Volume I, 1989 is also amended, as per ACS No. 209 enclosed.
45. Obviously, after 19.6.2009 selection to any post in Railway in which candidates are called from different categories would be held as per merit. The selection which had taken place as per paragraph 219 (j) of IREM between 9.10.2006 and 19.6.2009, i.e., during the period of around three years in question also, in view of the judgment of the Honble Supreme Court in Mithilesh Kumars case (supra) (the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms, as were in place at the time when the selection process was commenced, the candidates already selected may not be disturbed) may also be not interfered with. Thus, having analyzed the factual position, we are not inclined to accept the plea of the respondents that the applicants may be denied the benefit of judgment of the Honble Punjab and Haryana High Court accepted by official respondents to the extent that the Railways took a policy decision on the basis of the same, merely for the reason that they had participated in the selection process and remained unsuccessful. The attempt has been made by the learned counsel for the parties that the post of Sr. PWS is a cadre post, thus the selection to the same has to be in the order of merit, subject to qualifying the selection and not on the basis of merit. In the process of substantiating such plea, the learned counsels for private respondent Nos. 7 to 12 themselves demolished it while referring to paragraph 219 (j) of IREM enclosed as Annexure R-1 to their counter reply and Railway Boards letter dated 19.6.2009. Admittedly, paragraph 219 (j) of IREM since set aside by the Honble Punjab and Haryana High Court regulated the promotion/recruitment to the general post, i.e., outside the normal promotion for which the candidates are called from different categories whether in the same department or from different departments. As has been admitted by the official respondents in reply to R.A.No.263/2010 the selection in question was held as per instructions contained in clause (iii) of paragraph 219 (j) of IREM. Paragraphs 2, 5, 11-12 and 17-18 of the said reply have been extracted in paragraph 31 hereinabove. In this way, it was accepted by the official respondents that the post of Sr. PWS was a general post. Nevertheless in the present case it is not material whether the post in question is a general post or not. What is material is that if the selection to a post is not made from amongst the candidates from the common feeder panel / seniority zone (unit) and from amongst those who are in the same scale of pay or in the same cadre, the select panel should be prepared in the order of merit and not in the order of seniority, subject to obtaining the qualifying marks in the selection process. In the present case, it is not specifically set out by the official respondents whether there is common seniority of Gangman, Keyman and Mates and their grade/pay scale is common or not. A perusal of the notification dated 9.4.2007 would reveal that they are in different grades. However, in the absence of exchange of pleadings, we may not give any definite view on the issue.
46. In the overall facts and circumstances and legal position noticed and discussed hereinabove and taking a holistic view in the matter, we dispose of the present O.A. with a direction to the official respondents to verify whether there is common seniority list and pay scale for Gangman, Keyman and Mates, etc. i.e., the categories eligible for selection to the post of PWS in the grade of Rs.4500-8000 against 25% LDCE quota. If it is found that there is a separate seniority list maintained for these categories or they are in separate pay scales, respondent Nos. 1 to 3 would determine the merit position of the applicants in the selection process set in motion vide circular dated 9.4.2007 (Annexure A-14) and if found sufficiently high in merit, would promote them as Sr. PWS against future vacancies. On their such promotion, they would be placed in the seniority list of Sr. PWS above those selected as Sr. PWS on the basis of select panel assailed in the present O.A. provided their merit position is below the applicants. However, in no circumstances, the applicants would be entitled to any arrear of pay for the intervening period and their pay would be fixed notionally. In order to come over the impasse of drawl of salary against the post in excess of sanctioned strength, instead of giving benefit of notional fixation of pay to the applicants, the official respondents may give them the benefit of step up of pay with reference to their juniors. Needful shall be done within a period of three months from the date of receipt of a copy of this order. No costs.
( A.K. Bhardwaj ) ( Manjulika Gautam ) Member (J) Member (A) /sunil/