Central Administrative Tribunal - Bangalore
R Kesavan And Ors vs South Western Railway on 23 November, 2022
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OA.No.170/162/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00162/2021
ORDER RESERVED ON:14.11.2022
DATE OF ORDER: 23.11.2022
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
1.R. Kesavan,
S/o Ramasamy,
Aged 50 years,
Loco Pilot (Mail),
South Western Railway, Mysuru.
R/o # 1056/A, First Floor,
5th Main, 10th Cross,
Vijayanagar 1st stage, Mysuru-570017.
2. Anthony Daniel,
S/o K.A. Daniel,
Aged 44 years,
Loco Pilot (Mail),
South Western Railway, Sakleshpur.
R/o # 151, Pallaki
Gowrikoppalu, Hassan-573201.
3. K.P. Sojen,
S/o K.A. Padmanabhan,
Aged 52 years,
Loco Pilot (Mail),
South Western Railway, Mysuru.
R/o #133, 9th Cross,
Basaveshwari Block, Teachers' layout,
Dr. Rajkumar Road, Mysuru-570029. ....Applicants
(By Advocate Shri K. Shivakumar )
Vs.
1. Union of India Rep by General Manager,
South Western Railway,
Rail Soudha, Gadag Road,
Hubballi-580020
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OA.No.170/162/2021/CAT/Bangalore Bench
2. Senior Divisional Personnel officer,
South Western Railway,
Mysuru-570001.
3. Sri. Syed Rahiman,
Chief Loco Inspector ( working as
Chief Crew Controller)
South Western Railway, Sakleshpur.
4. Sri. G. Ravi Shankar,
Chief Loco Inspector ( working as
Chief Crew Controller)
South Western Railway, Arsikere.
5. Sri. Anil Kumar,
Chief Loco Inspector (working as
Chief Crew Controller)
South Western Railway, Chikjajur.
6. Sri. P. Manjunath,
Chief Loco Inspector,
South Western Railway, Arsikere.
7. Sri.B.S.Nagaraj,
Chief Loco Inspector,
South Western Railway, Chikjajur.
8. Sri. P. lyyappan,
Chief Loco Inspector,
South Western Railway, Chikjajur.
9. Sri. Punisha.V,
Chief Loco Inspector,
South Western Railway, Sakleshpur.
10. Sri. Pradeep Ram,
Chief Loco Inspector,
South Western Railway, Sakleshpur.
11. Sri. B. Rajendra,
Crew Controller,
(under orders of promotion)
South Western Railway, Arsikere. ....Respondents
(By Shri N. Amaresh for Respondents 1 & 2)
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OA.No.170/162/2021/CAT/Bangalore Bench
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To direct the respondent to amend the selection panel dated 02.02.021 on the basis of marks secured in aggregate and
b) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) Mysuru Division of South Western Railway issued notification dated 19.05.2020 inviting applications from eligible Loco Running Staff to fill up 09 posts of Chief Loco Inspector in Level-7 in the composition of UR-08, SC-01 and ST-Nil posts in terms of Railway Board Establishment Circular No.RBE.108/2019.
b) In response to the notification, about 44 employees volunteered for the selection to the post of Chief Loco Inspector. Out of this, 34 employees were shortlisted as eligible. The eligibility list was circulated on 06.8.2020. It was further notified vide letter dated 15.9.2020 that the written examination in connection with the selection for the post of Chief Loco Inspector will be held on 07.10.2020 at 14.30. hrs at Sr. DPO/O/MYS. It was further stated that 4 OA.No.170/162/2021/CAT/Bangalore Bench the examination shall be held in terms of RBE.No. 196/2018 and shall be 100% objective paper with negative marking for incorrect answers.
c) Subsequently, vide another notification dated 14.10.2020 it was stated that the date of the examination was changed to 28.10.2020. Subsequently, vide another communication dated 02.12.2020 it was informed that the selection for the post of Chief Loco Inspector held on 28.10.2020 was cancelled due to administrative reasons and the examination was re-scheduled on 23.12.2020. It was further notified that there would now be no negative marking in the selection process. It was further specified that panel will be formed on suitability cum seniority in terms of RBE 108/2019.
d) A joint representation was submitted by about 10 Loco Pilots on 16.12.2020 seeking certain clarifications with a request to keep the written exam fixed on 23.12.2020 on hold till the clarifications are furnished. However, the respondents did not consider that representation and went ahead with conducting the examination on 23.12.2020.
e) The Respondents notified on 18.01.2021 that 23 employees had qualified in the written examination held on 23.12.2020. In this, the name of the applicants are figuring at Sl. No. 17, 3 and 23 respectively.
f) Subsequent to the key answers uploaded in the official website by the respondents, the applicants made a self-assessment of their 5 OA.No.170/162/2021/CAT/Bangalore Bench performance and found that applicant no: 1 secured 96 marks out of 100, applicant no: 2 secured 85 marks and the applicant no: 3 secured 83 marks.
g) The selection has to be finalised and the panel has to be formed based on the aggregate marks in the written examination, record of service, for the last three years, and the seniority.
h) The applicants have contended that the panel should be formed based on the marks secured and the seniority. That is to say that firstly the employees' names should be arranged on the basis of the merit (by placing the person secured highest aggregate mark in serial no.1 and the next higher mark scorer will be placed next to him and so on). Then among them, so arranged, the senior most person (as per seniority) will be placed on the top of the panel though he may have secured less aggregate marks among such shortlisted persons and the next senior in the second place and so on.
i) This procedure was not followed in the subject selection process.
Though the applicants had secured more marks than others who had qualified in the written examination and in aggregate (as their record of service was unblemished), the names of the applicants were not figuring in the selection panel released on 02.02.2021 and the panel was formed based only on the seniority overlooking the merit.
j) The applicants submitted a joint representation dated 08.2.2021 seeking for the amendment of the panel based on merit. The 6 OA.No.170/162/2021/CAT/Bangalore Bench respondents without considering the representation, went ahead with issuing the posting order to the selected persons on 10.2.2021.
k) One post had been notified for SC employee. One SC employee has been promoted against UR post based on his seniority, although he has scored less marks than the applicants. He has been promoted against the UR post instead of post meant for SC. Consequently the chance of one of the applicants for promotion to the post of Chief Loco Inspector has been taken away.
3. The respondents have filed their written statement wherein they averred as follows:
a) Notification dated 19.05.2020 was issued to fill up 9 vacancies of Chief Loco Inspector. It was stipulated in this notification that this selection will be in terms of RBE circular 108/2019 dated 3.07.2019.
As per the Railway Board Establishment circular No: RBE 108/2019, selection is to be finalised on the principle of suitability cum seniority based on the seniority of the employees from among the employees who have qualified in the written examination. They are considered for empanelment as Chief Loco Inspector after assessing their suitability. Hence, the selection is not against the prescribed rules as alleged by the applicants.
b) Initially vide letter No.Y/P.608/IV/LI/Vol.IV dated 14.10.2020, it was notified that there will be negative marking. In the case of finalisation of selection as per the criterion of suitability cum 7 OA.No.170/162/2021/CAT/Bangalore Bench seniority, there is no provision for negative marking in the written test for wrong answers as advised in RBE No.194/2019 dated 14th November 2019. Since, in the written examination held on 28.10.2020, there was negative marking for wrong answers, this was contrary to the directions contained in RBE No.108/2019 dated 3.7.2019 read with RBE No: 194/2019 dated 14.11.2019. Accordingly, a decision was taken to cancel the written examination held on 28.10.2020 and to re-conduct the written examination on 23.12.2020 without any negative marking. The decision with regard to 'not granting negative marking' was also clarified by Principal Chief Personnel Officer vide letter No.SWR/P.605/IV/Mech/LI/Vol.II dated 10.12.2020 (Annexure R-2).
c) The joint representation of 10 Loco Pilots was also replied on the above lines by Senior Divisional Personnel Officer vide letter dated 17.12.2020 (Annexure R-3).
d) The applicants in the OA have secured the required qualifying marks in the written test. However, the selection of Chief Loco Inspector was conducted as per Railway Board RBE No.108/2019 and the panel was drawn up based on criteria of suitability cum seniority as prescribed in RBE No.108/2019.
e) The panel has been arranged as enunciated in RBE No.108/2019 in the order of seniority of all candidates who qualified the written examination. The employee belonging to Schedule Caste, being 8 OA.No.170/162/2021/CAT/Bangalore Bench senior, has been empanelled under Un-Reserved vacancies after following instructions pertaining to reservation in promotion.
f) The stipulation in RBE 113/2009 dated 19.6.2009 is not applicable to the present selection for the post of Chief Loco Inspector which was initiated after the notification of the process vide Notification dated 19.05.2019. In this notification, the selection was to be done as per the procedure laid down in RBE No: 108/2019 only wherein the name of the qualified persons are to be placed in the panel, as per their seniority.
4. The respondents have also filed MA.No.408/2022, seeking permission to file an additional reply. MA. No.408/2022 is allowed for the reasons stated therein.
5. In their additional reply, the respondents have averred certain additional points as follows:
a) The suitability of the employees is assessed under the following heading:
Professional Written test secured out of 100 marks is proportioned to 50 ability marks (50 marks) Record of Out of 30 marks, 15 marks are allotted for APAR, 10 marks Service for the service register, (6 marks for SR without any adverse marks, 4 marks for awards), 5 marks for educational (30 marks) qualification. Committee has also decided to deduct 1 mark each for minor penalty during the last 03 years, 02 marks each for major penalty during the last 03 years.9
OA.No.170/162/2021/CAT/Bangalore Bench
b) In the written test held on 23.12.2020 for selection for the post of Chief Loco Inspector, 23 employees had qualified in the written examination by securing 60% and more marks. These 23 Loco Pilots who had qualified in the written test, were subjected for assessment of their suitability by the Departmental Promotion Committee for placing on the panel as per instructions of para No.219(j)(i) of Indian Railway Establishment Manual Volume-I by award of marks under the following headings:
Professional Ability - Maximum 50 Marks.
Record of Service - Maximum 30 Marks.
c) The selection process consists of suitability and seniority criterion as provided specifically in RBE no: 108/2019. The assessment of the suitability of the qualified employee was accordingly assessed by the Departmental Promotion Committee by placing the names as per the integrated seniority list. After assessing the suitability under the heading of professional ability and record of service, the employees who secured 60% marks and above (out of the total of 80 marks provided for professional suitability and record of service) were recommended for placing on the panel for promotion as Chief Loco Inspector as per their seniority.
d) The applicants had been informed on 17.12.2020 that "in terms of instruction communicated in RBE No: 108/2019, the panel for the post of Chief Loco Inspector should be formed through a selection 10 OA.No.170/162/2021/CAT/Bangalore Bench process of suitability cum seniority. Further in terms of instructions contained in 194/2019, there will be no negative marking in selection against departmental quota where panel is drawn in the order of seniority from those qualified."
e) In case the applicants had any grievance against these instructions, they should have immediately approached this Tribunal challenging this policy. However, they participated in the written examination held on 28.10.2020. Hence, the applicants are estopped from raising this said contention in this application now, since they participated in the written examination conducted on 23.12.2020.
f) The representation made by the applicants on 08.2.2021 seeking amendment of the panel was duly replied vide letter dated 15.2.2021 (Annexure R-12), in which they have been informed that the panel for the Chief Loco Inspector Level 7, published vide memorandum No. Y/P.608/IV/Vol. III of 02.02.2021, is in accordance with the above instructions of RBE No.108/2019.
g) The averment made by the applicants concerning selection of an SC candidate against a UR post is not correct. As per the existing rules concerning reservation in promotions and treatment of SC/ST candidates promoted on their own merit, as specified in RBE No:
103/2003 dated 20.06.2003, SC/ST candidates who are selected by applying the general standard and whose names in the select list/panel appear within the number of unreserved vacancies are to be treated as selected on own merit. In case of non-selection promotions, SC/ST 11 OA.No.170/162/2021/CAT/Bangalore Bench candidates who are senior enough to be within the number of unreserved vacancies are included in the panel/selection list without getting any relaxation /concession will be treated as own merit candidates.
h) The Railway Board has brought out further guidelines to be followed in general selection procedure for filling up Chief Loco Inspector in RBE No.80/2021, initiated after 01.11.2021. As per these revised guidelines now the selection panel is to be drawn on merit. As the panel under question was approved during February, 2021, the RBE No.80/2021 is not applicable in the case of the applicants.
i) The fresh selection for the post of Chief Loco Inspector in level 7 was initiated vide letter No.Y/P.608/IV/LI/Vol.IV dated 23.11.2021. In this selection, applicant No.1 has qualified and placed on panel vide memorandum dated 21.7.2022.
6. Heard learned counsels for the parties and perused the pleadings made by them.
7. In the present OA, the applicants have prayed for quashing of the selection panel dated 02.02.2021 vide which the selection panel for Chief Loco Inspector (Level 7) has been prepared and notified by the respondents.
8. The applicants have contended that this panel has not been prepared on the basis of the marks secured by the candidates in the aggregate, which determines the merit of the candidates.
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9. They have further contended that the methodology of preparation of selection panel should have been on the basis of merit alone as provided for in the RBE circular 113/2009 dated 19.06.2009.
10. The circular No: 113/2009 dated 19.06.2009 specifies that the panel should be strictly as per merit with reference to marks obtained in professional ability and record of service. In this circular, reliance has been placed on the orders of the Hon'ble High Court of Punjab and Haryana in Writ Petition No.4746/2002 vide judgment dated 09.04.2008. The High Court in this order had, inter-alia, held that, since in such General Selection, candidates are not from the same seniority units and there is no common seniority list on the basis of which their names can be placed in the same seniority, therefore, promotion to such posts should be made only on the basis of merit, uninfluenced by seniority of the candidates. The Special Leave Petition No.16774/2008 filed before the Hon'ble Supreme Court against the High Court's above-mentioned judgment, was dismissed on 05.01.2009.
11. The respondents, on the other hand, in their pleadings, have stated that the promotion to the post of Chief Loco Inspector in Level 7 has to be strictly followed in terms of RBE Circular No.108/2019. As per this circular, the procedure for selection for the post of Chief Loco Inspector has been specified as suitability cum seniority.
12. As per this laid down procedure, the suitability is assessed on the marks obtained in the written examination as well as the assessed marks based on assessment of past performance in terms of APARs, Service record and 13 OA.No.170/162/2021/CAT/Bangalore Bench driving record etc by the DPC. Candidates who obtain the minimum qualifying marks of 60 % are assessed as suitable for being included in the panel for promotion. The panel is then prepared in the order of seniority of these suitable candidates limited to the number of vacancies available.
13. This selection process was clearly made known to all the prospective candidates at the time of inviting applications to fill up the vacant posts of Chief Loco Inspector. The applicants had willingly participated in the selection process with the knowledge that the process of selection and preparation of panel for these posts would follow the principle of suitability cum seniority and not on the basis of merit, as argued by the applicants. It is only at a subsequent stage, after having participated in the selection process and consequent to not finding their names in the panel on the basis of their inter-se seniority amongst the suitable candidates, the applicants have chosen to assail the selection process and the criterion followed for formation of the panel. After having willingly participated in the entire process, the applicants are estopped from raising this contention at this stage.
14. As far as the selection of one SC candidate against a UR post instead of SC post is concerned, the SC candidate was placed on the panel as per his inter-se seniority. As per his seniority, since he was senior to other UR candidates, hence he was appointed against the UR post with the SC post being filled by another SC candidate. There appears to be no violation of instructions contained in RBE 103/2003 dated 20.06.2003 in terms of filling up of UR posts by SC candidates if found suitable and senior to 14 OA.No.170/162/2021/CAT/Bangalore Bench others once the principle of following the policy of suitability cum seniority is followed.
15. In their additional reply, the respondents have also placed on record a copy of letter No. 80/2021 dated 01.11.2021 wherein the scheme for filling up of the post of Chief Loco Inspector has been revised as under:
"2. The issues raised by the Zonal Railways have been considered by the Board and decided as under:
(a) The term '10 years of actual service as Loco Pilot' contained in para-3 of Board's letter dt. 03.07.2019 (RBE No.108/2019) means 10 years of service as Loco Pilot including duties rendered as CC/PRC/TLC for the period of tenure in accordance with extant guidelines issued by the Board vide Board's letter dated 23.07.2004 ( RBE No.162/2004).
b) Since the selection to the post of CLIs have characteristics of general selection, instructions issued in pursuance to Hon'ble Supreme Court's order dt. 15.03.1996 in the matter of M. Ramjayram Vs. General Manager, South Central Railway & Ors., vide Board's letter No.E(NG)I-2008/PM7/4 SLP, dated 19.06.2009 (RBE No.113/2009) relating to selection procedure for promotion to General Selection post may be followed in the case of selection for CLIs post as well.
3. These instructions shall be applicable from the date of issue of these orders"
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16. The applicants have argued that that reference to "these orders" in para 3 of this letter relates to the orders mentioned in RBE No: 113/2009. The respondents, on the other hand, have stated that reference to "these orders"
in this letter relates to the orders contained in this letter itself i.e. RBE No.80/2021.
17. This letter changes the policy by which the selection panel is to be prepared from suitability cum seniority to merit. Such a major change in the policy can only be prospective in nature from the date of issuance of this letter i.e. from 1.11.2021 and logically cannot be retrospectively allowed w.e.f. the date of issuance of RBE No.113/2009 dated 19.06.2009. If this change is allowed retrospectively, this would imply unsettling of the settled process of selections already finalised in the past under the policy of suitability cum seniority. This is certainly not the intention of these instructions. Hence the contention of the applicants that reference to "these orders" in this letter implies a reference to RBE No.113/2009 dated 19.06.2009 is neither correct nor logical and cannot be countenanced.
18. After perusal of the pleadings hearing the learned counsel for the parties, it is amply clear that the selection process for the post of Chief Loco Inspector as per notification dated 19.05.2020 was based on the criterion of "suitability cum seniority" as laid down in RBE No.108/2019 dated 3.07.2019. This implied that once the suitable applicants, which had qualified as per the prescribed criterion, had been filtered out by the selection process (on the basis of having at least 60% marks in the written examination and service record as assessed by the DPC), then the panel 16 OA.No.170/162/2021/CAT/Bangalore Bench was prepared on the basis of the inter-se seniority amongst these suitable candidates on the criteria of suitability cum seniority. Hence, it cannot be countenanced that the process followed was not as per the selection process which was notified and informed to all the applicants. The preparation of the selection panel, therefore, cannot be faulted on the ground that it is not prepared on the basis of merit i.e. marks obtained by the candidates in the entire selection process. After having willingly participated in the entire process, the applicants cannot now turn and challenge the selection process on this ground, at this stage.
19. It has also been clarified by the respondents vide their letter dated 01.11.2021 RBE No.80/2021 that in future selections, instructions as provided for in RBE No.113/2009, which specify the policy of preparation of panel on the principle of merit based on aggregate marks of professional ability and record of service will be followed, in the case of selection for the post of Chief Loco Inspector as well.
20. It is noticed that in pursuance of this letter, a subsequent selection process for filling up of the post of five Chief Loco Inspectors was notified vide letter dated 23.11.2021. In this letter, it has been clarified specifically that in terms of Railway Board letter dated 19.6.2009 (RBE No.113/2009), the final panel shall be drawn in the order of merit based on aggregate marks of professional ability and record of service, provided that the candidate secures a minimum of 60% marks in the professional ability and 60% marks in the aggregate for being placed in the panel. 17
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21. It has also been stated by the respondents in their additional reply that subsequent to this notification, selection panel for the posts of five Chief Loco Inspector was also finalised and notified on 21.7.2022 vide which the applicant at Sl.No.1 has been placed in the panel based on his merit.
22. Keeping the above points in view, there is no merit in the OA seeking amendment of the selection dated 02.2.2021 on the basis of marks secured in aggregate by the applicants, instead of the basis of suitability cum seniority.
23. The OA is accordingly dismissed. There shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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