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(Feader as 6500-10500-Acs 181 item No.4.)"

14. The Tribunal considered the pleas and contentions of the parties and held that the respondent had been promoted to the pay scale of Rs.6500-10500/- on 17th October, 1990 and remained there on non- fortuitous basis up to 12th June, 1996 and then promoted as Chief Train Controller in the pay scale of Rs.7450-11500/-. His promotion to the next grade could not be construed against him nor can be held to be insignificant and meriting no consideration for promotion to the post of AOM (Group B) in the pay scale of Rs.7500-12000/-. The Tribunal noted that though the merit of the respondent was recognized and he was promoted to the higher grade yet for selection to the next post, the seniority in the lower grade was taken into considered and no weightage for selection was given to the respondent for promotion to the next post of AOM (Group B) with pay scale of Rs.7500-12000/-. According to the Tribunal, no rationale had been given as to how the employees who had not been successful in previous selections were taken into consideration, whereas the respondent and other employees, similarly placed as the respondent, belonging to a higher grade of Rs.7450- 11500/- could be eliminated on the basis of Para 203.5 of IREM Vol.-I. According to the Tribunal, Para 203.5 does not take into consideration this anomalous situation, where even though the respondent is in the higher grade, he is not considered for the post of AOM (Group B) in the grade of Rs.7500-12000/-, however, on account of his seniority in the lower grade of Rs.6500-10500/- he has been denied even consideration for the next post. In Para 6 and 7 of the judgment impugned by the petitioners, Tribunal had held as under:-

16. The petitioners also contended that the respondent had only challenged Para 203.4 and not Para 203.5 of IREM Vol.-I and that the Tribunal on its own had given the finding with respect to Para 203.5.

17. During the pendency of the present petition, an affidavit of Sh.P.S.Bisht, senior personal officer dated 4th September, 2010 was filed along with the seniority list up-dated as on 24th November, 2006, giving the date of promotion in the grade of Rs.6500-10500/- and the date of promotion in the grade of Rs.7450-11500/-. For purpose of eligibility seniority in the lower scale of Rs.6500-10500 has been considered and not the seniority in the grade of Rs.7450-11500.

18. This Court has heard the learned counsels for the parties in detail. This is not disputed that the respondent was given a higher grade of Rs.7450-11500/- on 12th June, 1996 and some of the employees shown senior to him in the eligibility panel had not even been given the higher grade of Rs.7450-11500/- and some of them had failed twice. Placing an employee in the higher grade of Rs.7450- 11500/- cannot be termed to be inconsequential. For the purpose of promotion how the seniority only in the lower grade of Rs.6500-10500/- is to be taken into consideration and the seniority in the grade of Rs.7450-11500/- is not to be considered has not been satisfactorily explained by the learned counsel except relying on para 203.5 of IREM. Though Para 203.5 of IREM Vol-1 stipulates that date of appointment in the grade of Rs.6500-10500/- will be the criteria for determining seniority, however, no rule or para has been shown in support of the contention that the promotion to the next higher grade of Rs.7450- 11500/- will be of no relevance. The Tribunal very pertinently observed that considering only Para 203.5 leads to an anomalous situation, as even though the respondent is given a higher grade of pay scale of Rs.7450-11500/- yet his seniority in the lower grade of Rs.6500- 10500/- is taken into consideration and no weightage is given to the promotion of the respondent to the higher grade of Rs.7450-11500/-. If the respondent has been promoted to a higher grade, he cannot be considered to be junior on the basis of seniority in the lower grade, specially in comparison to those employees who are in the lower grade and who have failed or who were promoted only after the respondent to the next grade of Rs.7450-11500/-. Even according to the contentions of the respondent though 33 candidates had to be considered for 11 post, however, as 5 of the candidates out of the 33 had failed twice in earlier selections, therefore, 5 more candidates had been called for, as per seniority in the grade of Rs.6500-10500/-. Thus, the candidates/employees who even failed twice in the earlier selections were being considered in preference to the respondent who was promoted to the next higher grade, who undoubtedly is more meritorious, yet his seniority on account of his promotion to the next higher grade is completely ignored.

19. The plea of the petitioners that the respondent had not challenged Para 203.5 and has only challenged Para 203.4 is also not correct. On reading of the entire OA of the respondent, it is apparent that the respondent had challenged the consideration of the candidates on the basis of the seniority in the grade of Rs.6500-10500/- and not taking into account the seniority in the higher grade of Rs.7450-11500/- and not on the ground as to how many candidates are to be considered for various numbers of vacancies. Consequently even if the respondent has mentioned Para 203.4 in his petition, it is apparent that he challenged para 203.5 and not 203.4 and this contention of the petitioners thus cannot be accepted. The learned counsel for the petitioners has not been able to give any satisfactory reason as to why the merit of those candidates who had been placed in the higher grade of Rs.7450- 11500/- is to be completely ignored and their date of appointment in the lower grade should be the criteria for consideration for promotion to the post of AOM (Group B) in the pay scale of Rs.7500-12000/-. Even if the employees from the different streams are eligible to appear for selection, while considering their integrated seniority, the higher grade given to some of the employees in preference to others who have remained in the lower grade cannot be ignored, nor can it be held that no weightage is to be given to such merit of candidates, like the respondent.