Central Administrative Tribunal - Delhi
Des Raj Meena vs M/O Railways on 20 October, 2021
1 O.A. Nos.387 & 389 of 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.387
387 of 2018
With
O.A. No.389 of 2018
Orders reserved on : 23.09.2021
Orders pronounced on ::20.10.2021
0.2021
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
O.A. No.387
No of 2018
Desh Raj Meena, Aged-30
Aged years,
S/o Shri Bhawani Baks Meena,
Accounts Clerk,
Office of FA & CAO, NCRPU, New Delhi
Delhi-1,
r/o 18/140, East Moti Bagh, Delhi
Delhi-7.
... Applicant
(through Advocate Shri Yogesh Sharma
Sharma)
Versus
us
1. Union of India through the General Manager,
North Central Railway, Subedar Ganj,
North-Central
Allahabad.
2. Principal Financial Adviser,
North Central Railway, Subedar Ganj,
North-Central
Allahabad.
3. The Financial Adviser & Chief Administrative Officer,
(FA & CAO), North Central Railway/PU,
Shivaji Bridge, New Delhi-1.
Delhi 1.
... Respondents
(through Advocatess Shri V.S.R. Krishna with Shri
Shailendra Tiwari)
Tiwari
2 OA Nos-387 & 389 of 2018
O.A. No.389 of 2018
Sanjay Kumar Meena, Aged-30 years,
S/o Shri Rajendra Prasad Meena,
Accounts Clerk,
Office of FA & CAO, NCRPU, New Delhi-1,
r/o 107/20, Delhi Kishanganj Railway Colony,
Delhi.
... Applicant
(through Advocate Shri Yogesh Sharma)
Versus
1. Union of India through the General Manager,
North-Central Railway, Subedar Ganj,
Allahabad.
2. Principal Financial Adviser,
North-Central Railway, Subedar Ganj,
Allahabad.
3. The Financial Adviser & Chief Administrative Officer,
(FA & CAO), North Central Railway/PU,
Shivaji Bridge, New Delhi-1.
4. Shri Ram Niwas Meena,
Presently working as Junior Account Assistant,
North Central Railway Headquarter,
G.M. Office, Subedarganj, Allahabad,
5. Sh. Budh Raj Meena,
Presently working as Junior Account Assistant,
North Central Railway Headquarter,
G.M. Office, Subedarganj, Allahabad,
... Respondents
(through Advocates Shri V.S.R. Krishna with Shri
Shailendra Tiwari for official respondents and
Shri R.K. Shukla for private respondents nos.4 and 5)
3 OA Nos-387 & 389 of 2018
ORDER
Hon'ble Mr. R.N. Singh, Member (J) In the aforesaid OAs, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have challenged the Office Order dated 22.01.2018 (Annexure A/1) vide which the revised result of promotion from Group 'D' to Group 'C', i.e., the post of Accounts Clerk in Pay Band Rs.5200-20200 in Grade Pay of Rs.1900/- under 25% quota has been issued; the order dated 22.1.2018 (Annexure A/2) vide which the applicants are informed that they had been erroneously selected for promotion to the post of Accounts Clerk although they were not fulfilling the eligibility conditions and, therefore, they are reverted from the post of Accounts Clerk to Group 'D' post; and the notices dated 29.12.2017 (Annexure A/3) vide which the applicants have been put to notice as to why they should not be depaneled & reverted back and to submit their explanations to the respondents till 15.1.2018.
2. As in both OAs, the impugned orders are same and/or similar, the same grounds have been urged, same issues have been raised and relief(s) are same and the 4 OA Nos-387 & 389 of 2018 defence of the respondents are also the same, with the consent of the learned counsels for the parties, both the OAs have been heard together and are being adjudicated by the instant common Order.
3. The applicants have prayed for the following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 22.1.2018 (Annex.A/1), order 22.01.2018 (Annex.A/2) and order dated 29.12.2017 (Annex.A/3) by which the name of the applicant has been deleted from the panel for promotion to the post of Accounts Clerk and decide to revert the applicant as Group 'D' employee, declaring to the effect that same are illegal, arbitrary, against the principle of natural justice and consequently, pass an order directing the respondents to restore the name of the applicant in the panel for the post of Accounts Clerk and to restore the promote the applicant to the post of Accounts Clerk with all the consequential from due date.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
4. The brief facts leading to the present OAs are that the applicants were initially appointed under the respondents to the post of Khallasi in Accounts Department of the official respondents w.e.f. 24.04.2012 5 OA Nos-387 & 389 of 2018 and the respondent no.2 vide notification dated 10.4.2015 (Annexure A/4) invited applications for conducting the selection for promotion under 25% quota to eight posts of Accounts Clerk. In the said notification, four posts have been reserved for General category, one post for SC category and three posts for ST category have been reserved. As per the eligibility condition provided therein in the said notification dated 10.4.2015 (Annexure A/4), for becoming eligible for promotion to the said post, Group 'D' Railway employees are required to have completed minimum three years regular services. However, this condition will not be applicable for SC and ST categories candidates. The cut off date for submitting applications for consideration of such promotion has been provided as 27.04.2015. The applicants belong to Scheduled Tribe (ST) category and, therefore, though they were not having three years of regular service in the relevant Group 'D' category, however, in view of the provisions/conditions provided in the said notification, they were eligible to participate in the selection process and have, thus, submitted their applications within the cut off date and participated in further selection process. Against eight posts, only seven candidates, including the applicants herein qualified the 6 OA Nos-387 & 389 of 2018 written test/selection and none of the General category candidates qualified the said examination and thus, six ST category candidates and one SC category candidate qualified the examination and, therefore, a panel of seven persons, including the applicants, was declared by the respondents vide their order dated 8.10.2015 (Annexure A/5). Vide office order dated 8.10.2015 (Annexure A/6), all the seven selected candidates, including the applicants were given posting and since then the applicants have been discharging their duties of the promotional post to the satisfaction of the authorities concerned. However, the respondents have subsequently issued impugned notices dated 29.12.2017 to the applicant directing them to explain as to why they should not be depaneled. Such proposed action was only on the ground that in the relevant panel for the promotion, the persons, whose names were above the applicants were promoted erroneously against general quota and the applicants have been promoted erroneously against the vacancies of reserved quota contrary to the rules and, therefore, it was proposed to depanel the applicants and to revert them with immediate effect. In response to the impugned notices, the applicants have submitted that they were 7 OA Nos-387 & 389 of 2018 allowed to participate in the said selection procession on being eligible and found successful therein, they were appointed on the said post. They also added that they have successfully completed the training course in the Zonal Railway Training Institute, Udaipur (Rajasthan) from 2.2.2017 to 17.3.2017 and have also become eligible for further progression in career in view of their seniority position in the seniority list of Accounts Clerk and they have appeared at an appropriate examination therefor held on 21, 22 and 23.6.2017 and they were confident of their success in view of their performance. The respondents had, however, issued the impugned order dated 22.1.2018 (Annexure A/2) wherein it has been stated by them that for General category candidates, the eligibility to participate in the said examination is that one should have three years of regular service and the sum and substance of the same for department has been that the applicants have not completed three years regular service in the feeder grade, i.e., Group 'D' and, therefore, they can be considered only against the reserved vacancies and not against the General category vacancies and further that the persons, whose names appeared in the impugned order have also though not completed the 8 OA Nos-387 & 389 of 2018 requisite three years in the feeder post, however, have been senior in the ST category in view of their merit as well as in the relevant seniority, were required to be considered against the post(s) reserved for ST category. Aggrieved by the aforesaid impugned orders, the applicants have approached this Tribunal and have prayed for the reliefs as noted hereinabove.
5. Vide Orders dated 29.1.2018 passed by this Tribunal in both these OAs, the respondents were directed by way of interim order that till the next date, the applicants shall not be reverted and the said interim orders have been continuing till date and thus, the applicants are continuing in the aforesaid promotional post. Subsequently, the private respondent nos.4 and 5 in OA 389/2018 were allowed to be impleaded in view of this Tribunal's order dated 17.11.2020.
6. Pursuant to the notice to the respondents from this Tribunal, the respondents have filed their counter reply. In the counter reply, the respondents have not disputed the aforesaid facts and the respondents have submitted that vide notification dated 10.4.2015, the applications were invited for conducting selection for promotion under 9 OA Nos-387 & 389 of 2018 25% quota for eight posts of Accounts Clerk. The notification stipulates that for promotion to Group 'C' post, a Group 'D' Railway servant should have completed a minimum three years regular service till 31.12.2014. However, no such condition is applicable in the cases of SC/ST categories employees. The applicants herein had completed only 2 years, 8 months and 8 days in Group 'D' post as on 31.12.2014 and they have availed the benefit of age relaxation being ST category candidates and, therefore, a candidate, who has availed age relaxation to participate the selection process, cannot be promoted against the vacancies meant for General category candidates. They have further contended that the mistake at the end of the department was committed in promoting the applicants and it cannot countenance that the mistake cannot be corrected. Mistakes can always be corrected by following the due process of law in this regard. It is further contended that the Hon'ble Apex Court in the case of Indian Council of Agricultural Research and another vs. T.K. Suryanarayan and others, reported in (1997) 6 SCC 766, held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in 10 OA Nos-387 & 389 of 2018 correcting the mistake and such action may cause hardship to the employee but the court of law cannot ignore the statutory rules. In the reply, the respondents have further referred to the judgment of the Hon'ble Apex Court in the case of Chairman, Board of Mining Examination and Chief Inspector of Mines and another vs. Ramjee, reported in AIR 1977 SC 965, to contend that the Hon'ble Apex Court has held therein that 'Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.' They have also referred to the judgment of the Hon'ble Apex Court in the case of Dr. Umrao Singh Choudhary vs. State of Madhya Pradesh & another, reported in (1994) 4 SCC 328, to contend that it has been held that 'the principles of natural justice do not supplant the law, but supplement the law.' They have further relied upon the judgment of the Hon'ble Apex Court in the case of Syndicate Bank and others vs. Venaktesh Gururao Kurati, reported in JT (2006) 2 SC 11 OA Nos-387 & 389 of 2018 73, and have contended that therein it has been held as under:-
"To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non- observance of principles of natural justice."
7. It has also been contended in the counter reply that amongst seven candidates who had been declared successful in the said examination, six candidates belong to ST category and one candidate belongs to SC category and no candidates were successful in the General category. As no candidate of General category was successful in the said examination, four candidates (three ST and one SC), who were higher in the merit list, were declared successful against the General category vacancies vide office order no.70/2015 dated 06.10.2015 (Annexure A/5) and the remaining three candidates, including the present applicants, were declared successful in ST category itself and were promoted to the post of Accounts Clerk vide office order no.71/2015 dated 8.10.2015 (Annexure A/6). It is also contended that three ST category candidates and one SC category candidate were promoted in their respective categories only and these applicants were depaneled from the list of successful 12 OA Nos-387 & 389 of 2018 candidates against the ST category. The persons promoted by the impugned revised order are higher in the merit list.
8. The applicants have filed the rejoinder. The written arguments have also been filed by the parties.
9. Learned counsel for the applicants has argued that cases in hand are regarding the promotion to the post of Accounts Clerk and mode of recruitment for the post has been prescribed in Rule/Para 171 (1) of Indian Railway Establishment Manual (for short 'IREM') Vol.I and the same is reproduced as hereunder:-
"171(1) the posts in the category of Accounts Clerks in the pay scale of Rs.3050-4590 in the Accounts Department are to be filled as under:-
(i) 66 - 2/3% direct recruitment through RRB;
(ii) 25% in promotion by selection from Group 'D' staff as per existing procedure; and
(iii) 8 - 1/3% by LDCE from amongst Group 'D' staff having completed a minimum of three years regular service and qualification of Matriculation/Class X Board Examination."
For filling up 25% above noted quota, the procedure prescribed in Para/Rule 189 of the IREM Vol. I and as per Para/Rule 189(a)(i)(3) of IREM, selection may not be restricted to three times the number of vacancies but kept open to all eligible candidates who would like to be considered for such selection. Shri Sharma, learned 13 OA Nos-387 & 389 of 2018 counsel appearing for the applicants, has argued that in view of such provisions of the Rules, selection is general selection and that all Group 'D' employees are eligible but as per Para/Rule 189(a)(i)(4) of IREM, all those who qualify in written and oral test, the qualifying percentage of marks being prescribed by the General Manager, should be arranged in the order of their seniority for promotion against the vacancies available for them in Group 'C' categories. Meaning thereby that the persons, who are declared qualified, should be empanelled/promoted only on the basis of their seniority in the feeder post. He has further argued that the rule itself provides that the requirement of three years of regular service in Group 'D' post is not necessary in the case of SC/ST categories candidates and, therefore, it cannot be said that the present applicants have availed any relaxation and once the applicants have become eligible as per the RRs, there is no question of any relaxation and they are entitled to their promotion against unreserved posts also. He has further submitted that the applicants were senior in the feeder post and in view of the provisions of Rule/Para 189 of IREM Vol. I, the list of successful candidates should have been prepared in accordance with the seniority 14 OA Nos-387 & 389 of 2018 position of the applicants and not on the basis of the marks obtained in the selection process. He has further added that the respondents have relied upon the Railway Board's Circular dated 19.6.2009 by which the Para/Rule 219(j) of IREM has been amended, whereas the Para/Rule 2019(j) of IREM is applicable for promotion from Group 'C' post and Rules/Paras 210 to 228 of the IREM Vol.I prescribes for promotion from Group 'C' to higher Group 'C' post, whereas for promotion from Group 'D' to Group 'C' especially for promotion to the post of Accounts Clerk, the procedure is prescribed in Para 189 of IREM Vol.I and, therefore, the circular dated 19.6.2009 is not applicable in the present cases.
10. Per contra, Shri Krishna, learned counsel for the official respondents has urged that the applicants were lower in the merit list in the examination conducted under 25% quota for promotion to the post of Accounts Clerk. Before depaneling the applicants, they were put to notices, the applicants though tried to submit justification on the ground that they were promoted on merit as Accounts Clerk against 25% quota and they have been working with utmost sincerity and devotion since 2015 and 15 OA Nos-387 & 389 of 2018 subsequently, they have also completed more than three years of service in Group 'D' post at the time of their promotion to the post of Accounts Clerk, however, in terms of prescription for promotion under 25% quota, the final select list has to be prepared on the basis of merit and not on the basis of seniority. Moreover, in the impugned order as well as in the written submissions, it has been contended by the respondents that though the applicants may be shown senior in the feeder post in the Group 'D' post, however, in the final seniority list, they have been junior to the persons who have been selected and appointed to the post of Accounts Clerk vide the impugned order. Shri Krishna has further argued that in second paragraph of the said notification dated 10.4.2015 (Annexure A/4), it has been provided that in the said selection, Railway Board's circular dated 19.6.2009 (RBE No.113/2009) shall be followed. He has further argued that once the applicants have participated in the selection process pursuant to the notification dated 10.4.2015 and though out of mistake, they have been selected and paneled initially, however, on the mistake being realized and when they have been de-paneled, the applicants cannot take 'U-turn' and they are estopped from 16 OA Nos-387 & 389 of 2018 challenging the mode of selection. Shri Krishna has further placed reliance on 'Frequently Asked Questions' (FAQs) on the policy of reservation to SCs, STs and OBCs (Annexure A/7 at page 24 of the counter reply) to substantiate his contentions.
11. Shri Shukla, learned counsel appearing for private respondent nos.4 and 5 in OA 389/2018, has adopted the arguments advanced by Shri Krishna, learned counsel for the official respondents. Shri Shukla has also emphasized on the implementation of the circular dated 19.6.2009 (RBE No.113/2009) of the Railway Board. He has also contended that OA is bereft of any merit and the same deserves to be dismissed.
12. Shri Sharma, learned counsel appearing for the applicants, has reiterated the submissions made in the OAs in the rejoinder arguments. He has further submitted that the issue in the present OAs are :-
(i) whether the promotion of the applicants as well as the private respondents and other selected candidates was legal and correct as per the rules 17 OA Nos-387 & 389 of 2018 against four unreserved vacancies and three ST vacancies? and
(ii) whether the private respondents, who are junior to the applicants, are liable to be promoted or the applicants are liable to be reverted only on the ground of getting the lower merit in the written examination in spite of the fact that the examination is qualifying in nature?
13. We have heard learned counsels for the parties and have also carefully perused the pleadings on record. Para 189 of IREM Vol.I provides as under:-
"189. Promotion to higher grades in Group 'C':- Railway servants in Group 'D' categories for whom no regular avenue of promotion exists 331/3% of the posts in the lowest grade of Commercial Clerks, Ticket Collectors, Trains Clerks, Office Clerks, Stores Clerks, etc. should be earmarked for promotion. The quota for promotion of Group 'D' staff in the Accounts Deptts. to Group 'C' post of Accounts Clerks will be 25%. Promotion to Group 'C' will be subject to the following conditions: -
(i) All promotions should be made on the basis of selection. There should be written tests to assess the educational attainments of candidates. Group 'C' categories referred to above should be suitably linked with specified categories in the lower grades on broad affinity of work to form groups for promotion but it should be ensured that the prospects are made equal in the different groups. The test should be correlated to the standards of proficiency that can reasonably be expected from railway servants who are generally non-matriculates.
18 OA Nos-387 & 389 of 2018 The aim of the examiners should be to assess the general suitability of the Group 'D' railway servants offering themselves for promotion to Group 'C' posts from the point of view of their knowledge of English and their general standard of intelligence. The factors of selection and their relative weight will be as indicated below:-
Factors/Headings Maximum Marks
(a) Written Test 85
(b) Record of 15 Service Total 100 Note: 1. Written test should consist of one paper of 3 hours duration divided into two parts - Part 'A' to test the working knowledge of the Railway servant of the English language and Part 'B' his general standard of intelligence and proficiency through questions in Arithmetic, General Knowledge mainly pertaining to Railway matters and matters immediately pertaining to the work he has been acquainted with during his Railway service. In drawing up the questions it must be ensured that they are not set as such a standard as to make it impracticable for a Group 'D' railway servant of average intelligence and normal standards of efficiency to qualify in the test.
(2) Assessment under the heading Record of Service will be based on entries in the Service Book/personal file regarding academic/ technical qualifications, awards/ punishments, etc. (3) Selections should not be restricted to three times the number of posts to be filled but kept open to all eligible candidates who would like to be considered for such selections.
(4) All those who qualify on the basis of written test and Record of Service, the qualifying percentage of marks being prescribed by the General Manager, should be included in the panel in the order of their seniority for promotion against the yearly vacancies available for them in Group 'C' categories.
(ii)All Railway servants in Level-1, to be eligible for promotion to Level-2 posts in all Departments should have put in a minimum of 2 years regular service and have successfully completed their probation period in the recruitment grade.
19 OA Nos-387 & 389 of 2018 However, in cases where incumbency of more than 3 years is prescribed, the same shall continue."
14. In view of the relevant notification dated 10.4.2015 and the provisions of the aforesaid Rules/Paras of IREM Vol.I, the applicants were eligible to participate in the said examination. It is also not in dispute that General category candidates are required to have three years of regular service in Group 'D' post and for the reserved categories, i.e., SC/ST, there is no such requirement to have three years of regular service in Group 'D' post for being eligible to participate in the selection process for promotion to the post of Accounts Clerk. It is also not in dispute that General Manager of the concerned Railway is authorized to fix the qualifying percentage of marks in the said relevant examination/selection process. It is also not in dispute that none of the General category candidates was found qualified in the relevant examination/selection process. The dispute is to the extent as to whether the merit list in respect of aforesaid selection has to be prepared keeping in view the seniority of the candidate(s) in the feeder post. However, issue is not about the seniority of the applicants and the private respondents in the feeder post, i.e., Group 'D'.
20 OA Nos-387 & 389 of 2018
15. In view of the disputed question of facts and also the seniority of the applicants and the private respondents not being the issue in the present OAs, we will not go into this aspect. However, keeping in view the admitted facts, the issues which arose for adjudication in the present OAs are as under:-
(i) Whether the candidates, who have qualified in the relevant examination/selection process and belong to the reserved categories, i.e., SC/ST, can be considered against the vacancies reserved for General category also? And
(ii) Whether if the relevant notification and/or the rules provide that there will be no requirement of three years of regular service in the feeder post to enable the SC/ST categories candidates to participate in the relevant examination/selection process, however, those SC/ST candidates, who have qualified in the said examination but have not completed three years' regular service as is required for General category candidates, can be considered against the vacancies for General category candidates as well as against 21 OA Nos-387 & 389 of 2018 the vacancies reserved for SC/ST categories candidates, as the case may be.
16. We are of the considered view that the issue at serial No.(i) above is no more res interga in view of the law laid down by the Hon'ble Apex Court in the case of R. K. Sabharwal and others vs. State Of Punjab and others, reported in 1995 SCC (2) 745, various instructions issued by the Nodal Departments from time to time and further in view of the judgment of the Hon'ble Apex Court in the case of Jarnail Singh vs Lachhmi Narain Gupta, reported in (2018) 10 SCC 396 and the Order/Judgment of the Division Bench of this Tribunal dated 15.12.2020 in OA No.571/2019, titled Anita Rai Saxena vs. All India Institute of Medical Sciences, consisting one of us, namely, Hon'ble Shri R.N. Singh, Member (J), paras 15 to 18 thereof read as under:-
"15. The controversy, raised in the instant OA, lies in a narrow compass: whether a reserved category candidate who is next in turn for promotion on his/her own merit, can be promoted on an unreserved vacant post.
The issue was deliberated in R.K. Sabharwal (para-6.1 supra) and was settled wherein it was held that it is incumbent on State to reach a conclusion that backward 22 OA Nos-387 & 389 of 2018 classes, for whom reservation is made, are not adequately represented in State Services. Thereafter, post based roster needs to be followed especially for initial recruitment, wherein certain roster points need to be earmarked to the intended reserved community, to the extent of reservation to be achieved on running basis, wherein the roster point, which is not meant for a reserved community, can be occupied by a General as well as a reserved community candidate depending upon his/her turn in the select panel prepared as per the method of appointment by promotion i.e. whether seniority-cum- suitability method or as per merit based method. As against this, the roster point for reserved community must necessarily be filled by a candidate belonging to that community only.
This position has remained unchanged. 16. The interim directions dated 17.05.2018 by Hon‟ble Apex Court in
Jarnail Singh case (para-7 supra), which has been relied upon by the respondents, are also to the effect that promotion for "reserved to reserved" and "unreserved to unreserved" as well as on merit can be continued. Thereafter, detailed order was also passed by Hon'ble Apex Court in this Jarnail Singh case on 26.9.2018 wherein this position remained unchanged. The order dated 15.04.2019 (para 10.1 supra) to maintain status quo, therefore, does not alter the directives, which were given in R.K. Sabharwal (para-6.1 supra).
17. The respondents have referred the issue of promotion of applicant, for clarification to DoPT as well as Ministry of Health & Family Welfare, who in turn have also consulted Ministry of Law & Justice for 23 OA Nos-387 & 389 of 2018 clarity. They had clarified to act as per DoPT directives. The DoPT directives were issued on 11.07.2002, 31.01.2005, 10.08.2010 and 15.06.2018 (para-8 supra).
In none of these directives there is any prohibition that a reserved category candidate cannot be promoted in his/her turn on merit for a vacancy which may be earmarked for unreserved category.
Therefore, while an unreserved category candidate can be promoted against an unreserved vacancy only, a reserved category candidate can be promoted to a reserved vacancy as per reservation as well as he/she can be considered for promotion against an unreserved vacancy if he/she happens to be the next candidate in line for promotion on merit.
18. In view of the foregoing, there is merit in the OA and it needs to be allowed. Accordingly, OA is allowed."
The said Order/Judgment in the case of Anita Rai Saxena (supra) has further been followed by this Tribunal, with the consent of the parties, in the case of Bhupender Kumar and another vs. All India Institute of Medical Science and others, (OA No.3347/2018 decided on 9.7.2021).
17. With regard to issue at serial No.(ii) above, we may further note that in Order/Judgment dated 19.5.2015, the Division Bench of the Hon'ble High Court of Allahabad in 24 OA Nos-387 & 389 of 2018 Special Appeal No.310 of 2015, titled U.P. Power Corporation Ltd. and another vs Nitin Kumar and 9 Others, has dealt with the similar issue. In the said case, the advertisement was issued by the Electricity Service Commission for recruitment of 2211 posts of Technician Grade-II (Trainee) Electrical. Out of these posts, 597 were reserved for OBC, 464 for Scheduled Castes, 44 for Scheduled Tribes and 1106 posts were unreserved. The selection process comprised of written test followed by an interview. The Commission released the list of candidates who were declared to be successful in the relevant examination and on the basis of which the candidates were called for interview. The Commission called three times the number of candidates for interview from each category applying what is described as a '3x formula'. The petitioners, who filed writ proceedings before the learned Single Judge, were candidates belonging to the OBC category. Their grievance was that though the last candidate from the unreserved category had secured lower marks, none of the petitioners were called for the interview. The Order/Judgment of the learned single Judge was challenged by filing the said Special Appeal No.310 of 2015. The Hon'ble High Court has recorded that 25 OA Nos-387 & 389 of 2018 the learned single Judge in the course of the judgement indicated the consequence of the procedure of short-listing which was followed by the Commission, in the following observations:
"...The petitioners have been left out of the field of consideration for being called in the interview only because there were a large number of candidates in the OBC category who had secured higher marks than the petitioners and by applying the three times formula it has resulted in the ouster of the petitioners from the field of consideration for being called for interview. On the contrary the petitioners having secured higher marks in the written test than the last unreserved category candidate, were entitled to compete against the unreserved vacancies/ posts solely by virtue of their higher merit and they cannot be relegated to take the seats reserved for the OBC category to which they belong. OBC candidates having lower marks than the petitioners would have to be adjusted against the seats reserved for OBC..."
The Hon'ble High Court has observed in the aforesaid Order/Judgment dated 19.5.2015 that 'Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories. An unreserved post or seat is one in which every individual irrespective of the category to which the person belongs can compete in open merit.' On page 6, the Hon'ble High Court recorded as under:-
26 OA Nos-387 & 389 of 2018 "The principle of law has been laid down in the judgment of the Supreme Court in Andhra Pradesh Public Service Commission vs. Baloji Badhavath, (2009) 5 SCC 1, in the following observations:
"One other aspect of the matter must be kept in mind. If category wise statement is prepared, as has been directed by the High Court, it may be detrimental to the interest of the meritorious candidates belonging to the reserved categories. The reserved category candidates have two options. If they are meritorious enough to compete with the open category candidates, they are recruited in that category. The candidates below them would be considered for appointment in the reserved categories. This is now a well settled principle of law as has been laid down by this Court in several decisions. (See for example, Union of India v. Satya Prakash3 , SCC Paras 18 to 20; Ritesh R. Shah v. Dr. Y.L. Yamul4 , SCR at pp. 700-701 and Rajesh Kumar Daria v. Rajasthan Public Service Commission5 , SCC para 9.)"
Similarly, the Hon'ble Apex Court in the case of Jitendra Kumar Singh and another vs. State of U.P. and others in Civil Appeal No.74 of 2010 decided on 8.1.2010, reported in AIR 2010 SC 1851, has ruled in para 37 as under:-
"37. It is in this context, we have to examine the issue as to whether the relaxation in fee and upper age limit of five years in the category of OBC candidates would fall within the definition of "reservation" to exclude the candidates from open competition on the seats meant for the General
27 OA Nos-387 & 389 of 2018 Category Candidates. Taking note of the submissions, the Division Bench has concluded by considering questions 1, 2 and 3 that concession in respect of age, fee etc. are provisions pertaining to eligibility of a candidate to find out as to whether he can appear in the competitive test or not and by itself do not provide any indicia of open competition. According to the Division Bench, the competition would start only at the stage when all the persons who fulfill the requisite eligibility conditions, namely, qualification, age etc. are short-listed. We are of the opinion that the conclusion reached by the Division Bench on the issue of concessions and relaxations cannot be said to be erroneous."
After considering the issue at length, the Hon'ble Apex Court in para 52 has recorded a finding that they do not find much substance in the submission of the learned counsel for the appellants that relaxation in age "queers the pitch" in favour of the reserved category at the expense of the General category. It has further ruled in the said paragraph that the relaxation in age does not in any manner upset the "level playing field". It is also ruled that it is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16 (1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive 28 OA Nos-387 & 389 of 2018 examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. The aforesaid FAQs, as relied upon by the learned counsel for the official respondents, neither indicate the source of author thereof nor the same bears any file nor order number. Moreover, in view of the fact and the issue has already been answered by the Hon'ble Apex Court as well as Hon'ble High Court, we are of the considered view that the said FAQs is of no consequence. Besides, the judgments referred to and relied upon by the learned counsels for the respondents are of no help to the respondents.
18. In this background, we are of the considered view that the issue at Para (15) serial Nos. (i) & (ii) above are answered in affirmative. The private respondents and/or the applicants, though were not having the requisite three years of regular service as required for General category candidates in the feeder post, however, they have qualified the written examination/selection process prescribed by the competent authority of the official respondents and candidates belonging to General category have not qualified the said examination, were rightly considered 29 OA Nos-387 & 389 of 2018 and selected against the vacancies meant for General category candidates also.
19. In view of the aforesaid facts, discussion and law, we are of the considered view that OAs deserve to be partly allowed. Accordingly, the impugned orders dated 22.1.2018 (Annexure A/1 and Annexure A/2) and notices dated 29.12.2017 (Annexure A/3) are set aside. The respondents are directed to restore the promotions of the applicants along with other qualified persons in pursuant to the notification dated 10.4.2015 (Annexure A/11). The applicants shall be entitled for consequential benefits, i.e., continuity of service, seniority, further promotion(s), if any, accordingly in accordance with the relevant rules on the subject. However, in the facts and circumstances, there shall be no order as to costs.
20. Pending MA(s), if any, stand(s) disposed of accordingly.
21. Registry is directed to place a copy of this Order in another connected OA.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/