Central Administrative Tribunal - Allahabad
R K Saini vs Union Of India on 13 February, 2018
Meotrnronnmnatensnn sant £ Oe OMEN ERO EDRF ES fe Gee EN et erent ALLAHABAD BENCH ALLAHABAD Dated: This the (3 '*" day of [eho errgqion 2018 a, Original Application No 330/00844 of 2011 Hon ble Dr. Murtaza Ali, Member -- J on'bie Mr, Gokul Chandra Pati, Member --A Raman Kumar Saini, S/o Shri Vishwa Nath Saini, workin under SM/Banda, R/o 34-B, RB-ll, Railway Colony g as Head TNC, Banda (Behind Platform No. 2). _. Applicant By Adv: Shri S.K. Kushwaha and Shri Manoj Dhrubbanshi 10. 11. 12. 13. VERSUS Union of India, through General Manager, North Central Railway, Headquarter Office, Subedarganj, Allahabad. Divisional Railway Manager, North Central Railway, Jhansi. Senior Divisional Personne! Officer, North Central Railway, Jhansi. Senior Divisional Operating Manager, North Central Railway, Jhansi. Rajesh Kurar, S/o Ram Prasad, Presently working as Goods Guard. Harun Khan, S/o Mohamood Khan, Presently working as Goods Guard. Daya Shankar, S/o Ramesh Prasad, Presently working as Goods Guard. Manok Kumar Sahu, S/o K.R. Sahu, Presently working as Goods Guard. Beep Kant Nigam, S/o R.S. Nigam, Presently working as Goods Guard. pharam Pal, Sfo Sukh Nandan, Presently working as Goods uard. Rajiv Kumar Srivastava, S/o S.S. Srivastava, Pre Goods Guard. : Presently working as Kamal Kishor, S/ j Kamal r, Sfo Sarman Singh, Presently working as Goods Deepesh Kumar, S/o Mahadev Prasad, Presently 'Working as Goods Guard. L Page 2 af 19 14. Amar Deep, So Brij Mohan, Presently working as Goods Guard, 15. Anuruddh Singh Yadav, Sfo Hari Singh Yadav. Presently vay as Goods Guard. af WOTRING as 16. Jitendra Kumar Singh, S/o Himanchal Singh, Presently wors Goods Guard. 17. Manoj Kumar Ahirwar, Sfo Daya Ram Ahinwvar, Presenty working as Goods Guard. Respondents No. 5 to 17 were served the notices through Senior Divisional Personnel Officer North Central Railway. Jhansi. _, Respondents By Adv: Shri Anil Kumar and Shri S.M. All ORDER
By Hon'ble Mr. Gokul Chandra Pati, Member -- A This OA is filed under section 19 of the Administrative Tribunals Act, 1985 with the prayer for the following reliefs--
4, To partially quash the impugned panel dated 17.02.2017 (Annexure 4-1} which is related to Trains Clerk grade and recommendation of the selection committee dated 22.12.2010(Annexure A-2).
fi. To direct the respondents to re-evaluate the answer script of the applicant and given the proper marks in the record of service.
To pass an other or direction as this Hor'ble Tribunal deem fit and proper in the interest of justice.
fii.
iv. Te award the cost in favour of the applicant."
2. The facts of this case are that the applicant, working as Junior Trains Clerk under Indian Railways, had applied for a higher grade post of Goods Guard under 15% of 60% quota prescribed for the Train Clerks category under which 22 posts were to be filled up. The written examination for the setection was notified vide notification dated 1.098.201 (Annexure A-4 to the OA). The applicant and other candidates appeared in the written test on 9.10.2010. Final result was declared vide letter dated 11.2.2011 (Annexure A-1 to the OA) and the applicant's name was not found. Thereafter, the applicant received the copy of the recommendation of the selection committee as reply under RT! Act, 2005 and he found that the committee vide its recommendation dated 22.10.2010 (Annexure A-2)} had awarded marks to the candidates for their Seniority which is against & Page 3 of 10 Mie 219 GA at wm Wa <tS G HG of f ian Railways Establishment Manual 1 {in shart as Guard was declared as a General Selection Pact Gistsa = Mest vide Re uaway Hoard tetter dated 4.00 2009 'Annexure A-G to the OA) Main Sounds fear fing thie OA are that award! ing of marks by selection commniioe for seniority is Haga! Hiywerabad Seach in case of CY Naga Laxman vs. The Chairman Railway Board and Others ¢ reported in {2009/2} ALS.L Page-64] and tes SEAvngrading of the services records of the applicant which was not Sammruniqated to the aopicant LQ. The official respondents, in thelr counter rapty (in short OR) have Stated that the selection for tha post of Goods Guard was conducted under 'departmental quota' for the category in which channel of promation exist. snd for such selection marks for seniority are correctly awarded in te selection. itis further canfended that the Railway Board letter dated 3.08. 2008 wil not be applicable for the applicant as in para 2 of the said tatier § sa stated that all the posts earmarked against selection/general splectovLDCE quota wherever prescribed wilf be filed up as per the exishog procedure and hence, the contention of the applicant will not apply for the selection of 80% Goods Guard. Respondents, vide para 16 of te CR, have cited the Railway Board fetter No. 1474/2000 dated 19.06.2009 (Annexure R-5 to the CR) according to which, the panel only y ment wil apply for selection of general selection posts where camidates of diferent departments are eligible fo be considered and where zone of consideration is not restricted to three times the vac cancy. In the case of the apoicant, the zone of consideration of three times the vacancy was applicabie. in reply te the ground in the OA that the applicant shouts ave gol more than 12 marks for his service records as per the quseislines is stated that he wae correctly given 12 mars for service oy N petty we;
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« % A * rey er ss <f aes oN v Y Page 6 of 10 laying d ying down the law that for general selection posts where employees fr j ' om different Streams/departments compete, seniority should not be a criteria for selection which should be done purely on merit. {t stpulates the following criteria as Stated in the circular dated 19.06.2009--
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2. The instructions regarding formation of panei 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 provisions 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 Ho. 4746/2002 vide judgment dt 09.04,2008. High Court have, inter-alfa, held that, since in such General Selections, candidates are not form the same seniority units and there is na common seniority list an the basis of which their names can be placed in the order of seniority, therefore, pramotion to such posts should be made only on the basis of merit, uninfluenced by seniority of the candidates. The Hon'ble High Court have accordingly deciared the provision of arranging the names on final 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 filect before the Hon'ble Supreme Court against the High Court's above-mentioned judgment, has also been dismissed on 05.07.2009.
The matter has, accordingly been carefully considered by the Board and ithas 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 ta marks obtained by the candidates in Professional ability' and 'Record af 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°4 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 secured 80% or more marks, classified as 'Outstanding', on the top of the panel."
10. The applicant in Rejoinder has also accepted that the impugned selection process should have been done as per the railway Board circular dated 19.06.2009. In two judgments cited by the applicant's counsel also lays down the same principle where the competing employees are from different streamsAvings of Railways. In Bhramesh Kumar Gupta (supra), the question before the Full Bench of C.A.T. was "whether promotion to the past of Loco Inspector, by inviting applications from the grade of Loca Pilot (formerly driver) Goods, Senior Loco Pilot Passenger and Mail Loco Pilot, who have different scales of pay and different seniority list, would be on the basis of seniority or on the basis of merit." The dispute before the Pece ntl OE tbe Page 7 of 10 Full ;
Bench was whether the Selection process for the post of Loca Inspector which was categorized as 'General Selection' post, midway through the process of selection would be vitiated. The Full Bench of C.A.T. after reviewing various judgments of different cases and has held that when selection is among the employees from different seniority lists.
then the selection Process should be based only on merit without any consideration for seniority. It has also held as under:
Feces anes in M Ramjayaram (supra) the extra marks given for seniority for s@ection to the post of Law Assistant, for which selection is made from diverse sources, was held to be bad in law by the Honourable Supreme Coun, which held that the selection had to be made on the basis of overall merit.
8.
Having given our utmast 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 fnspector is not in the normal channel of promotion far all the drivers. it is nat disputed that there is a separate seniority fist 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 weil nigh impossible. Be that as it may, a3 long as the seniority list is separate, we cannot Suggest that a cambined seniority list should be framed. The matter fs 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 posis cannot be made on the basis of seniority, We are aiso of the view that it does not appear from the rules that earlier the pest of Loco fnspector was a post in the normal channel of promotion..."
11. In another case of Bharat Lal & Ors. vs. Union of India & Ors. before CAT, Jodhpur Bench 2005 (3) SLJ 288 CAT a similar question as the present case arose involving selection to the post of Goods Guard. In the above order it was observed that the posts of Goods Guard were to be filled up from different streams of employees like Trains Clerk/Senior Trains Clerk, Commercial Clerk/Senior Commercial Clerk, Ticket Collector/Senior Ticket Collector, Switchman/Assistant Guard/Senior Assistant Guards and persons employed in the yard in the scale of pay of Rs. 3050-4590/3200-4500/4000-8000. It was held that the post of Goods Guard was a general selection post where employees from different streams are eligible to be considered, in such a case, it was held that as a 04 OLLI LS SEL CAAILRUUMAAEE APLAR nim ita 8 4 trl z 7 > « : ya ayes wt per the ratio of the judgment in M. Ramjayaram case (Supra), © Sese us BRI OS Goods Guard, seniority cannot be criteria far assesses 3 & 4, <A cA y Cy x so 3 above case held as under:.-
"49. in the premises, we think it apposite to direct the official respandants fo hold the selection afresh keeping in view the reguiranes . provisions of RBE No, 26398 dated 46.47.88 2s extracted E50¥5 aforesaid observation in respect of the candidates as per the & issued vide letter dated 27.02.2002, The persons, who bad promotion in pursuance with impugned seectan suarant
05.02.2003, at Annex.-A.3, shall continue to noid the past of Guarc results of fresh selection to be hefd in pursuance to UNS GroS declared. This exercise shall be completed within 2 period of four mots from the date of communication of this order, No casts."
12. Subsequent to the case of Bharat Lal {supra}, he selecnon process for Goods Guard has been modified, without changing ike principle that where the employees from different streamsidepanmeans with different seniority lists compete for a general selection post, the fina selection should be purely on merit without any consideration for the seniority. As stated in the CR, vide Railway Board letter dated 42.7908 (Annexure R-2 to the GR), if was decided that for selection to the past o Goods Guards, different categories of employees are eligible for selector and the Zonal Railways were authorized to flay down individual quatss for each categories of staff who are eligible for selection as Goods Guard Accordingly, the respondents {North Central Railways) natified separate quotas for the employees as below vide order dated 12.07.2008 {Annexure R-3 to the CR):
"TNC (Train Clerks) ~15%, Switchman--t0%, Ticket Collectors -- 2%, Commercial Clerk--5%, Shunting Jamadar -1MS, Cabin Man and Liverman --18%; (Total-60%6}"
Above order dated 12.07.2006 of North Central Zonal Raiways implies that for selection for 15% quota for the. Train Clerks, only Train Clerks are considered and they constitute one category post, Hance, for the selection to Goods Guard against 15% quota for the Train Clerks, onty one category employees i.e. Train Clerks can campete. Hance, although Goods Guard is a general selection post, but selection within 15% quota for the Train Clerks is as per the Railway Board circular dated 4.2.1999 authorizing Zonal Railways to specify quota for each category of \ So ae Q a Poge 8 of 20 = amos wy Ry 8 shy ible fo Ss OS Leen ee : "guy § YF alsction as Goods Guard and for sefection within meg RS 'Srnof 2G . ot apply for selection within this 15% quota. Hence, the stipulations in the aadqmert and mee #3 ; .
@ fudgmerts in cases cited by the fearned counsel for the aopicant will Pe nsebedbrbpeebeg 3 Tate 2 se a $ - iH net apply for selection to Goods Guard within 15% qucia for Train Glerks, for which the respondents can give weightage {© the sentorly without violating the judiciat orders cited by Ihe applicant.
13. In view af above discussion, the contention of the applicant that ine respondents have vitated the esiection process of Goods Guard agai 48% quote for Train Clerks by giving some weightage to the seniority, ded does not have any basis and hence, cannat be accepted. Regarding his point relating to wrong assessment of his ACR for 3010 as stated in the Rejoinder, assuming his contention to be correct, then he would have got 3 more marks since his ACR for 2010 is stated by him to be 'Good for which he should have got 6 marks instead of 4 marks and in that case he would have got total of £9 marks (in place of 57 marks}, which is stil less than the eligibility mark of 69. Therefore, he would not have been se: fected to the panel.
44. We can examine the applicants case from another angie. Assuming that his contention of not taking into account the seniosty criteria is accepted alongwith extra 2 marks for his ACR for 2010, we can find out his score to see # he would have been qualified as per the (hid ipo \ assessment report as at Annexure A-2 to the OA as per which he had got 57 marks including 75 marks for the seniority aut of total 160 marks. if senionty 18 axcluded from assessment, then total marks for the ee Ee Xe Ess assessment would be BO, out of which the applicant would have got 42 marks and adding 2 exta marks for ACR for 2010 as claimed by him in the Rejomder, ihe 8 pplicant would have got 44 marks, which is 5 sti short Page 10 of 10 of F . -
qualifying marks of 48 (60% of total 80 marks excluding seniority marks of 20 out of total 100 marks). Hence, there would have been n° change in the result for him even if his main contentions of the applicant regarding selection process would have been accepted.
1S. In view of above discussions, we do not find any merit in the OA, which is liable to be dismissed. Accordingly, the OA is diemicsed. No casts.
Ly (Gokul dtendra Pati) (Dr. Murtaza Ali) Member (A) Member (J) ine!