Central Administrative Tribunal - Allahabad
Santosh Kumar vs General Manager D.L.W., Varanasi on 5 October, 2017
(RESERVED ON 25.08.2017)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
This the 5th day of October 2017.
ORIGINAL APPLICATION NO. 347 OF 2012
HON'BLE MR. JUSTICE DINESH GUPTA, MEMBER (J).
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
1. Santosh Kumar, S/o Late Shri R.P. Lal aged about 48 years,
presently posted and working as Office Superintendent, PRO,
D L W, Varanasi.
2. Gorakh Nath Sharma, S/o Shri T.N. Sharma presently posted
and working as Office Superintendent, C O S Office, D L W,
Varanasi.
...............Applicants.
VE R S U S
1. Union of India, Ministry of Railway through General Manager,
D L W, Varanasi.
2. Chairman, Railway Board, New Delhi.
3. General Manager, D L W, Varanasi.
4. Chief Personal Officer, D L W, Varanasi.
.................Respondents
Advocate for the Applicants : Shri O.P. Gupta
Advocate for the Respondents : Shri Anil Kumar
ORDER
By Hon'ble Mr. Justice Dinesh Gupta, Member (J) The present Original Application has been filed by the applicant under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
(i) To quash the rejection order dated 23.09.2011 passed by respondent no. 2 [Ann No. A - 9.].
(ii) To declare that para 3 [v] of order of Railway Board dated 17.06.2005 is arbitrary and is in contravention of statutory rule 219 [j] and 320 of Indian Railway Establishment Manual Vol. 1 and to be pleased to turned down the same [Ann No. A-1)
(iii) To direct the respondents to revise and reframe the panel of promotion dated 5-012-2006 and 09-03-
2007 in accordance with interseniority of ministerial cadre of selected candidates and post them preferable in the same department in which they were earlier working in feeder cadres, by giving all consequential benefits of such promotion.
(iv) Any other order or direction to which this Court may deem fit and proper in the facts and circumstances of the present case may also be passed.
2. The brief facts of the case as stated by the counsel for the applicants are that while the applicants were working as Head Clerks in the personnel department of DLW, a notification dated 10.08.2005 was issued to fill up 16 vacancies of OS II (Rs. 5500- 9000) against 20% direct recruitment quota and applications were invited from suitable candidates. These vacancies fell in different departments of DLW such as Personnel, Store Depot and General etc. In pursuance of the aforesaid notification, a written examination was conducted on 29.11.2006 and in the said examination, a total number of 13 candidates were successful including the applicants. Accordingly, a select list of successful candidates was prepared on 05.12.2006 in accordance with merit obtained in the written examination and all the selected candidates were imparted required training and after successful training, promotion/posting orders as OS II were issued to them vide order dated 09.03.2017 (Annexure A-2). The applicants herein are aggrieved by the method of the respondents by which they were promoted to the post of OS II. It has been submitted by the counsel for the applicant that the promotion and posting orders as OS II were made in accordance with the orders of Railway Board dated 17.06.2005 (Annexure A-1). The Order of Railway Board dated 17.06.2005 provides method of selection and promotion against 205 post of OS II through Limited Departmental Competitive Examination (LDCE) amongst ministerial staff of all concerned departments, possessing graduation degree and having 7 years experience as regular Clerks or 3 years experience as regular Sr. Clerks and Head Clerks. The selection is based on 60% and above marks to the equal number of vacancies. Selected candidates are sent for the required training and after successful completion of their training; they are promoted and posted as OS II in accordance with the same merit preferably in the same department where they were working but if sufficient vacancies are not available in the said department, they can be posted in other departments where vacancies are available.
2.1 It has been further submitted by the counsel for the applicants that the applicants were senior in the cadre of Head Clerks and Sr. Clerks of Personnel Department in comparison to those who have been promoted as OS II. Since, the panel for promotion to the post of OS II was made in accordance with the merits in LDCE and seniority of Head Clerks was fully ignored in forming panel for promotion, they could not be promoted and posted in the Personnel Department due to the shortage of vacancies and they were posted in Store Depot. Some of the juniors to the applicants in the cadre of Head Clerks and Sr. Clerks of Personnel Department, namely Sanjay Kumar, Raj Kumar and Archana Dixit were promoted and posted in the Personnel Department itself due to high merit in the LCDE. In the seniority list of Head Clerks, applicants stood at Sl No. 18 and 26, where as other promoted candidates namely Sanjay Kumar, Raj Kumar stand at S. No 27 and 30 and Archana Dixit was at S. no. 12 in the seniority of Sr. Clerks.
2.2 Learned counsel for the applicants further submitted that due to the arbitrary action of the respondents the applicants could not be posted to the next promotion post of Chief Office Superintendent also as the promotion on the post of Chief Office Superintendent (Chief OS) is made department wise on seniority cum suitability basis. As the vacancies for the posts of Chief OS in the Personnel Department fell vacant immediately after the promotion as OS II, juniors to the applicants in the Head Clerks cadre who got promotion as OS II in the Personnel Department itself due to high merit in LDCE were again promoted as Chief OS on the basis of seniority cum suitability basis. In the Store Depot, where the applicants were promoted as OS II, no such vacancies for the post of Chief OS fell vacant and as such applicants could not be promoted as Chief OS and they are still working as OS II in the Store Depot.
2.3 Learned counsel for the applicants further submitted the order of the Railway Board 17.06.2006 on the basis of which promotions to the post of OS II were made is against the statutory rule 219 (J) and rule 320 of Indian Railway Establishment Manual Vol. -1 (IREM). Rule 219 of IREM Vol 1 deals with the procedure to be adopted for holding selection on the selection posts. Sub rule (J) of Rule 219 of aforesaid manual deals with the method of forming panel for promotion amongst the selected candidates which reads as under:-
"... The names of selected candidates should be arranged in the order of seniority but those securing a total of more than 80% marks will be classified as Outstanding..."
Rule 320 of IREM Vol. 1 deals with the formation of relative seniority of employees in an intermediate grade belonging to different seniority units appearing for a selection in higher grade which reads as under:-
".. When a post selection or non selection is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade by the employees shall be the determining factor for assigning inter-seniority irrespective of the date of confirmation of an employee with lesser length of continuous service. This is subject to the proviso that only non fortuitous service should be taken into account for this purposes..."
2.4 The applicants aggrieved by the promotion/posting orders had filed O.A. No. 714 of 2007 challenging the Railway Board's Order dated 17.06.2005 as well as promotion/posting orders dated 09.09.2007. The said O.A. was disposed of vide order dated 21.10.2010 (Annexure A-8) with the directions to the respondents to ascertain whether aforesaid promotions were made in the exercise of power under rule 215 of IREM or under any other rule. If promotions were made under rule 215 of IREM, in that event, applicants will have no case for relief. In case promotions were made following some other rule of IREM, the seniority of applicants will be fixed in accordance with the provisions of Rule 320 of IREM. However, when nothing was done by the respondents for a long time, the applicants file CCP No. 35 of 2011 for the compliance of aforesaid order and during the said proceedings, the respondents passed order on 23.09.2011 (Annexure A-9) rejecting the claim of the applicants on the grounds that since the said promotions were made on the basis of merit only and as such there is no illegality or irregularity in the promotion and postings orders of the applicants. 2.5 It has been further submitted that the Railway Board order dated 17.06.2005 deals with the procedure to be adopted for selection and formation of panel for promotion and postings as OS II against 20 % vacancies, the Railway Board cannot direct to follow such procedure which is entirely different and rather contrary to the provisions as given in the Statutory Rule 219 (I) and (J) and 320 of IREM Vol. 1. Learned counsel for the applicants further submitted that it is a settled law that administrative orders/executive instructions should be followed in the same force as of Statutory Rules if these orders/instructions are in supplement to the statutory Rules, but if administrative orders/instructions are contrary to Statutory Rules or provisions, these orders should not be implemented and such administrative orders/instructions must be treated as arbitrary and illegal. In the case of R B Dixit Vs Union of India & Others, Hon'ble High Court of Allahabad has laid down in its full Bench decision that administrative orders/executive instructions cannot take the place of Statutory Rules. If there is a conflict between administrative orders and statutory rules, statutory rules will prevail. Since, aforesaid order of Railway Board dated 17.06.2005, particularly para 3 (v) is contrary to the Statutory Rules 219 (I) and (J) and 320 of IREM Vol. 1, therefore, the same is arbitrary and is liable to be turned down.
3. Learned counsel for the respondents has filed counter affidavit by which it has been stated that the post of Office Superintendent Gr. II, Scale Rs. 5500-9000 has been classified as a selection post, which is filled by a positive act of selection as per extant rules on the subject. The Ministry of Railway, Railway Board under the restructuring order vide letter dated 09.10.2003 introduced an element of direct recruitment to the extent of 20% of the post of category of Office Superintendent Gr. II, scale Rs. 5500-9000 to be filled through Railway Recruitment Board vide Board's letter dated 09.10.2003 (Annexure CA-1). In order to motivate the serving graduates amongst Ministerial staff at various level in Railways, the Ministry of Railway, Railway Board vide their letter dated 17.06.2005 (Annexure CA-2) decided to do away with the direct recruitment, as introduced in the category of Office Superintendent Gr. II, scale Rs. 5500-9000/- and in lieu introduced a Limited Departmental Competitive Examination (LDCE) quota. The Ministry of Railways, Railway Board vide their letter dated 17.06.2005 had laid down the procedure for holding Limited Departmental Competitive Examination. In para 3. II (V) of the procedure of the aforesaid letter dated 17.06.2005, it is specifically mentioned that panel of successful candidates will be in order of merit, equal to the number of total vacancies. It will be preferable to post the successful candidates in their respective department. There is no bar to their being posted elsewhere if the number of successful candidates does not match the number of already assessed vacancies in the respected department. In accordance with the instruction/procedure laid down under Railway Board's letter dated 17.06.2005, 20% of the post in the category of Office Superintendent Gr/ 11, scale Rs. 55500-9000/-, a notification dated 10.08.2005 was notified to full up 16 posts of Office Superintendent Gr. II, scale Rs. 5500-9000/- inviting application from the eligible staff. In Para 6 & 7 of the notification dated 10.08.2005 (Annexure A-6), it is clearly mentioned that selection of the successful candidates will be made in order of merit and it will be preferable to post the successful candidates to their respective department. If the number of successful candidates does not match with the number of already assessed vacancies in their respective department, their posting will be done elsewhere, against the vacancy of 20% direct element of Office Superintendent Gr. II, scale Rs. 5500-9000/- In reference to notification dated 10.08.2005, 90 applications of eligible staff were received from the different department of the Diesel Locomotive Works, Varanasi. All these applications were forwarded to the Chairman, Railway Recruitment Board, Allahabad for further action with request to made available the panel of selected candidates in the category of Office Superintendent Gr. II, scale Rs. 5500-9000/- against 20% direct element.
3.1 The Chairman, Railway Recruiment Board, Secundrabad & Chennai expressed some difficulties with regard to the inclusion of descriptive type of question for written examination and for these category before the Ministry of Railway, Railway Board, New Delhi. The Ministry of Railway, Railway Board, reviewed handling the task of holding Limited Departmental Competitive Examination. As a result of review, the Ministry of Railway, Railway Board vide their letter dated 06.10.2006 issued clarification that Limited Departmental Competitive Examination for the category of Office Superintendent Gr. II, scale Rs. 5500-9000/- and Personnel Inspector in Grade Rs. 6500-10500 be held by the concerned Zonal Railway and Production Units. The Ministry of Railway, Railway Board vide aforesaid letter dated 06.10.2006 further clarified that all other conditions including the procedure for holding the Limited Departmental Competitive Examination as explained in para 3-11 of letter dated 17.06.2005 (Annexure CA-3) will remain unaltered. In pursuance to the clarification issued by Ministry of Railways, Railway Board under letter dated 17.06.2005 and 06.10.2006, the written examination was held on 29.11.2006.
3.2 Further, it has been submitted that the mode and criteria for filling up of 20% post of O.S. II through LDCE has been made by Railway Board as per power conferred to Railway Board by the President of India in terms of Rule 123 of the IREC Vol. I. As per provision contained in this Rule, the Railway Board have got full powers to make rules of general application to Group C & Group D Railway Servants under their control. The Indian Railways Establishent Code is issued by the president of India in exercise of power conferred on him to the proviso to article 309 of the Constitution of India. Thus, it has a statutory force.
4. Learned counsel for the applicant has filed rejoinder affidavit and reiterated the facts as stated in the O.A.
5. Heard the counsel for the parties and perused the pleadings available on record.
6. Counsel for applicants submitted that admittedly, the applicants appeared in the Limited Departmental Competitive Examination (in short LDCE) and cleared the same and merit list was prepared on the basis of performance in the written examination. Thereafter, selected candidates were sent for training and after completion of training, the applicants and other selected candidates were deputed in various departments. Originally, the applicants were belong to the Personnel Department and in the Personnel Department, there were three vacancies. However, the applicants could not be promoted to the post of Office Superintendent in the Personnel Department as he was lower in the merit and persons junior to the applicants in the Personnel Department were given posting as O.S. in the Personnel Department on the basis of their merit in the written examination of LDCE. The applicants preferred an O.A. before this Tribunal and this Tribunal vide order dated 21st October, 2013 (Annexure No.A-8 to the O.A.) while disposing of the O.A. has given certain directions to the respondents. However, the respondents in compliance of directions issued by the Tribunal passed an order dated 23.9.2011(Annexure No. A-2 to the O.A.). However, the respondents in fact have not complied with the directions issued by the Tribunal hence applicants have forced to file the present O.A. The applicants through this O.A. have also challenged the Railway Board's order dated 17.6.2005 (Annexure No. A-1 to the O.A.) which is arbitrary and in contravention of statutory rule 219 (j) and 320 of Indian Railway Establishment Manual Vol.I.
7. The counsel for the applicants further submitted that the applicants were given posting in the Store Department where there was no further promotional avenues. On the contrary, in the Personnel Department where juniors to the applicants were posted as O.S. and have got promotions on the higher post but the applicants were deprived from the said promotion. Counsel further submitted that respondents should have prepared a merit list on the basis of their original seniority in the department and not on the basis of merit list prepared after the written examination. If the said examination is taken by the respondents on the basis of their original seniority in the department, then applicants will get posting in the Personnel Department and will also be entitled for further promotion in the Department.
8. The respondents counsel opposed the same and submitted that applicants appeared in the examination which was conducted in terms of the order of Railway Board dated 17.6.2005 where LDCE quota was introduced and procedure for examination was given. The applicants appeared in the examination after accepting the said guidelines and also cleared the exam and went for training as per Railway Board order dated 17.6.2005. After successful completion of training, the respondents prepared a merit list on the basis of written examination and also on the basis of assessment of service record. The applicants could not be posted in the Personnel Department where they were originally posted and without any protest, applicants accepted the said posting and joined as O.S. in the Store Department. After a lapse of few years, the applicants preferred an O.A. before this Tribunal which was disposed of by the Tribunal with certain directions and in compliance of the direction of the Tribunal, the respondents have passed a speaking and reasoned order and by passing the order, the respondents have fully complied with the direction of this Tribunal and in the said order dated 23.9.2011, the respondents have clearly mentioned that instant selection of OS-II against LDCE quota was conducted as per policy/circular dated 9.10.2003 and 17.6.2005 issued for the purpose by the Railway Board and not entirely on the basis of Rule 215 of IREM. Secondly, the juniors were given posting in the Personnel Department on the basis of merit in the written examination of LDCE and no marks was allotted for seniority in the Department, and as such the order dated 21.10.2013 passed by this Tribunal was fully complied with. Counsel for respondents further submitted that they have fully complied with the direction issued by the Tribunal and after that nothing is left for the respondent to do in the matter.
9. We are unable to accept the contentions raised by the learned counsel for the applicants.
10. The facts for conducting LDCE examination in terms of letter dated 17.6.2005 of Railway Board is not disputed. It is also not disputed that applicants appeared in the said examination with open eyes. The applicants cleared the examination and also completed training successfully. It is also not disputed that due to low merit in the written examination of LDCE, the applicants could not be posted in Personnel Department to which they were originally belong. They were offered appointment in Store Department which they accepted without any protest and joined there. It was only when they came to know regarding further promotion of persons who were posted in Personnel Department, they preferred an O.A. No. 714/2007 and this Tribunal vide order dated 21.10.2010 clearly provides that respondents are to undertake an exercise as under:-
"a) in case merit system has been adopted in the exercise of their power under Rule 215 or any other rules, the applicants may be informed accordingly, in which event, the applicants have no case.
b) The respondents may ascertain also the procedure adopted in preparation of panel in respect of selection through LDCE for other posts, wherein, eligibility to appear in the examination is not confined to railway employees in the feeder grade or same seniority unit alone but extends to all those fulfilling the qualifications (for e.g. as in the case of Station Master, vide rule 122 (ii) of the IREM where persons both in the operating as well as commercial departments are permitted to appear in the LDCE) and if in such case the panel is prepared on the basis of merit, the applicants be informed accordingly. "
11. In compliance of the said directions, the respondents have passed an order dated 23.9.2011 which is reproduced below:-
"1. The instant selection of OS-II against Limited Departmental Competitive Examination quota was conducted as per policy/circulars dated 9.10.2003 and 17.6.2005 issued for the purpose by the Railway Board. This selection was not conducted entirely on the basis of rule 215 of IREM.
Earlier all posts of OS-II was being filled through the process of selection, subsequently the Railway Board vide their letter No. PC-III/2003/CRC/6 dated 9.10.2003 introduced a new scheme that 20% post of OS-II should be filled through Limited Departmental Competitive Examination. The criteria/ eligibility for selection and procedure for holding the examination was also laid down by Railway Board vide their letter No. E(NG)-2005/PM1/20 dated 17.6.2005 as per instructions contained in this Railway Board letter, the post had to be first entirely on the basis of merit with reference to the marks obtained by the candidates in the written examination and service records. The panel of successful candidates was to be formed in order of merit. The Railway Board vide their letter No. E(NG)1-2005/PM1/20 dated 6.10.2006 has decided that the zonal railway /PUs should held the selection. Further Railway Board also clarified that all other conditions including the procedure for holding the LDCE as explained in para 3 (ii) of Railway Board letter dated 17.6.2005 will remain unaltered and para 3(II)(V) is reproduced herewith for ready reference:-
(V).... The RRB will furnish eh panel of successful candidates in order of merit, equal to the number of total vacancies intimated by the Zonal Railway/PU concerned.
While it will be preferable to post the successful candidates in their respective Departments. Units, there is no bar to their being posted elsewhere if the number of successful candidates does not match the number of already assessed vacancies in the respective Deptt/unit."
2. The aforesaid rules were framed by Railway Board for filling of a newly created 20% quota of LDCE in the category of OS-II. The mode and criteria for filling of these posts have been made as per power conferred to Railway Board by the President of India in terms of Rule 123 of the Indian Railway Establishment Code Vol-I. As per provision contained in this rule, the Railway Board have got full powers to make rules of general application to Group-C & Group D of Railway Servant under their control. The Indian Railway Establishment Code is issued by the President of India in exercise of power conferred to him to the proviso of Article 309 of the Constitution of India. Thus, it has a statutory force.
3. Since, the instant selection was held as per rules contained in Railway Board letter 17.06.05 & 06.10.06, the selection was held purely on the basis of merit.
The applicant submitted their representation through the General Secretary, All India Railwaymen's Federation, New Delhi to Railway Board for formation of panel of selected candidates of OS-II against LDCE on the basis of seniority instead of merit. The Railway Board vide their letter dated 25.09.07 decided that the selection against LDCE quota is conducted entirely on merit based on the marks obtained by the candidates in written examination and service record. Therefore, the request for formation of panel of selected candidates on the basis of seniority can not be acceded to.
4. The Hobn'ble CAT vide judgment/order dated 21.10.2010 passed in O.A. No. 714/2007 directed that if the selection was held on the basis of merit the applicant may be informed accordingly. On examination and as per position explained above, it is crystal clear that the selection was held on the basis of other rules issued by Railway Board and not entirely on the basis of para 215 or 219 of IREM. Secondly, the panel was formed on the basis of merit and no marks was allotted for seniority as such the order/judgment dated 21.10.2010 was fully complied with honour. Even the applicants fully aware of it, as their relief no.2 in O.A. no. 714 of 2007 was "to issue a suitable direction and order commanding the respondents to modify the notification dated 17.06.2005 regarding formation of panel, considering seniority as well as merit of the selected candidates."
It is further stated that there is no post of ASSTT. Station Master in DLW Organization. Hence, no LDCE Examination was conducted in this Production Unit under rule 122 (II) of IREM.
5. Since, other LDCE like ASM category has not been conducted in this organization, no question arises to compare with the case.
The rules frames by Railway Board in their letter dated 17.06.2005 have not been set-a-side or quashed or modified by Hon'ble Tribunal as such the guidelines of aforesaid Railway Board letter still exist and same have been followed in this selection.
Therefore from the above it is quote clear that in this selection merit was the only criteria for selection and thus the applicant has not claim/case. It is a talent hunt quota and therefore purely based on the merit. Hence, no illegality or irregularity was committed in formation of panel of 20% LDCE quota in the category of OS, Grade II, Scale Rs. 5500-9000."
12. From bare reading of the above order, it is clear that the respondents have conducted the LDCE examination only on the basis of Railway Board letter dated 17.6.2005. It is not disputed that applicants appeared in the said examination knowing all the guidelines mentioned in that letter. However, at this stage, the applicants have challenged this letter dated 17.6.2005 stating that the said letter is arbitrary and in contravention of Rules of Indian Railway Establishment Manual. We are unable to accept this contention of the learned counsel for the applicants. Applicants have completely failed to demonstrate that the letter dated 17.6.2005 is against any Rule of IREM. Initially, the applicants have challenged this Rule in previous O.A. and the Tribunal only observed and issued directions to the respondents to undertake an exercise that in case merit system has been adopted in the exercise of their power under Rule 215 or any other Rules, the applicants may be informed accordingly, in which event, the applicants have no case. In the order dated 23.9.2011, the respondents have clearly mentioned that they have exercised the selection on the basis of Railway Board letter dated 17.6.2005 and letter dated 9.10.2003 and not entirely on the basis of Rule 215 of IREM. Thus, as per earlier direction of this Tribunal, the respondents have passed the order in which it is clearly stated that exercise was considered on merit, hence the applicants are not entitled for any relief and O.A. deserves to be dismissed.
13. Accordingly, O.A. is dismissed. No order as to costs.
(GOKUL CHANDRA PATI) (JUSTICE DINESH GUPTA)
MEMBER-A MEMBER-J
HLS/-