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(iv)Direct the respondents to consider the applicant also for promotion to the post of Assistant Commercial Manager against the vacancies notified in Annexure A1 and direct further to grant the consequential benefits thereof;

(v)Award costs of and incidental to this application;

(vi)Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.

2. The applicant submitted that when different streams of employees from different categories and units merge together for selection for promotion, an integrated seniority list of all the categories of staff eligible to compete would inevitably be prepared first. From that seniority list only, the zone of consideration could be determined. In the absence of an integrated seniority list of all the eligible staff of the different categories of employees, viz. Commercial Clerks, Ticket Checking Staff, ECRC, Office Clerk of the Commercial Department finalised after calling for objections, the purported action of the respondents for selection to the post of ACM as per Annexure A-1 notification is illegal and unsustainable. The list of employees enclosed in Annexure A-1 is not an integrated seniority list, but only a list of persons from the seniority lists which were erroneously prepared against various judgements of the Hon'ble Supreme Court in Union of India vs. Virpal Singh Chauhan and Ors. (1995 (6) SCC 684), Ajit Singh Januja and Ors. vs. State of Punjab and Others (1996 (2) SCC 715), Ajit Singh and Others (II) vs. State of Punjab and Others (1999 (7) SCC 209), Ramprasad and Others vs. D.K. Vijay and Ors. (1999 (7) SCC 251 and Suraj Bhan Meena and Another vs. State of Rajasthan and Others (2011 (1) SCC (L&S) 01) and the order of this Tribunal in O.A.No. 18/2001 (K.M. Geevarghese and Another vs. Union of India and Others). Not a single person from the general category is included in the main list. Article 16 (4A) of the Constitution is only a provision enabling the State to make any provision for reservation in the matter of promotion with or without consequential seniority to any class or vacancies in services under the State. No reservation can be made for SC/ST in the matter of promotion without collecting the quantifiable data showing the backwardness and inadequacy of representation in the Railway service. Further, compliance with the provision of Article 335 which stipulates the requirement of maintaining efficiency in administration is to be made. The Railway has not so far done this exercise. Annexure A-1 notification and Annexure A-14 Railway Board order are issued without the aforesaid pre-condition as laid down under Article 16(4A) and 16 (4B) of the Constitution of India in view of the decisions in M. Nagraj and Others vs. Union of India and Others, (2006) 8 SCC 212, and in Suraj Bhan Meena and Another vs. State of Rajasthan and Others (supra) and in the order dated 02.12.2010 in O.A. No. 2211/2008, All India Equality Form and Others vs. Union of India and Others, of the Principal Bench of the CAT. Those who are included in Annexure A-1 are the persons who were already included in Annexure A-2 and found unqualified as evident by Annexure A-4. They have no right to be considered again in the very same vacancies on the very same year. The failure on the part of the respondents to prepare and finalise the seniority/eligibility list according to the principles contained in para 319(A) of Annexure A-10 Railway Board order read with Annexure A-11 before initiating the process of selection is arbitrary and discriminatory. Even if seniority is given to the SC/ST candidates, it cannot be considered for promotion against the general category vacancies. Shri R. Hariharan who is included in the standby list was appointed in the entry grade 4 years later than the applicant.

3. The respondents in their reply statement submitted that there is no connection between the cadre seniority maintained in the division and the inter se seniority. The integrated seniority is not a regular seniority. It is made for the purpose of selection from the available and eligible employees in the relevant cadres of Commercial Department. The lists of eligible employees are maintained at all divisions. An inter se seniority list pertaining to the division is forwarded for further amalgamation at the Headquarter to arrive at the required integrated seniority list comprising of the cadres of all divisions to determine the zone of consideration for selection as per para 203.4 of IREM Vol.1. The Railway Board order bearing No. RBE 33/2002 dated 08.03.2002 is a policy matter. The policy decision is based on the constitutional amendment to negate the effect of para 319(A) of the IREM and to grant consequential seniority to the SC/ST employees on their promotion by virtue of rule of reservation. Seniority based on the date of entry into the relevant grade is the criterion for determining the zone of consideration. The date of entry of the applicant into the grade of RS. 6500-10000 (pre-revised) is 01.03.1993 whereas that of Shri R. Hariharan is 07.09.1990. Preparing an integrated seniority list of all the eligible candidates belonging to the different seniority units forming the feeder cadre for promotion is not necessary and relevant to the issue in question as the applicant is not senior enough to be called for selection in terms of para 203.4 and 203.5 of the IREM. The names listed in the main and standby lists are the integrated seniority list as that of Annexures A-6 and A-7 to the extent required. The applicant has never challenged the original seniority list of Ticket checking cadre all these years nor against the promotion of Shri R. Hariharan ahead of him at any point of time. All Railway employees irrespective of their community, on their promotion from one grade to another will have consequential seniority from the date of entry into the promoted grade. The Railway Board based on the 85th Constitutional Amendment Act, 2001, vide letter dated 08.03.2002 had restored the old seniority rules. There is no excess representation of reserved candidates in the cadre of Ticket Checking Staff prior to 10.02.1995 also as per the report submitted by a High Level Committee. Those SC/ST employees promoted on their own merit and seniority against unreserved points and not owing to reservation shall not be treated as roster point promotees. The judgement of Hon'ble Supreme Court in Suraj Bhan Meena's case is not applicable to the present case as it pertains to the service rules of Rajasthan Government and not the Central Government policies. The order dated 02.12.2010 in O.A. No. 2211/2008 is challenged before the Hon'ble High Court of Delhi in W.P.(C) Nos. 1974/2011 and 2280/2011 and the same is pending for adjudication. As the Hon'ble Supreme Court has declared the validity of 77th and 85th amendments to the Constitution of India, the Railway Board circular dated 08.03.2002 was issued reverting the provisions after issuance of the circular dated 28.021997. The applicant had neither agitated against the judgement of Hon'ble Supreme Court in Nagraj's case nor the 77th and 85th amendments nor impleaded affected parties. The conditions stipulated in the case of Ajit Singh-II have already been complied with and no excess promotion has been made since 1984 over and above the prescribed percentage. Therefore, there is no necessity to revise the seniority as per Railway Board letter dated 28.02.1997. As long as the Constitution which governs the assignment of seniority has not been challenged, the seniority which was assigned on implementation of such constitutional amendments cannot be questioned.