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5. Shri Bhardwaj responded to the objection raised by the Respondents who placed reliance on Para 203.5 of IREM where the employees from different streams are eligible to appear on the basis of integrated seniority and for which the entry in Grade of Rs.6500-10500 and is the determining factor for reckoning the total length of non-fortuitous service, and submitted that the APO Group B against 70% quota which were drawn from different streams and categories with pay scale Rs.5500-9000, Para 203.5 had no applicability. His contention is that all the above instructions have been superseded by Circular dated 19.6.2009 in the case of all general selections. Moreover, integrated seniority in Grade Rs.6500-10500 is prepared when a Group B selection is held in a particular department and the zone of consideration is confined to three times of the vacancies including twice earlier failed candidates are called from the concerned department only, such as Asstt. Electrical Engineers (AEE), Assistant Operating Manager (AOM), Asstt. Engineers (AEN) etc.(Annexure W-3). Moreover, in an identical situation before the Chandigarh Bench of the Honble Tribunal in OA 586-HR-2008 in Surinder Kumar Versus Union of India and Others as decided on 8th Sept. 2010, (Promotion from Group C to Group B post) Subhash Chand Joshi & Others Versus Union of India & Others reported in 2008 (2) SCT page 787 has been placed reliance on to hold non-consideration of seniority and determination of selection is to be made on the basis of merit alone. The aforesaid dicta has also been followed in another OA No.451/2003 of Raiza Zaidi Versus Union of India, decided on 18th July, 2007 by the Lucknow Bench of this Honble Tribunal which has been upheld by the Honble Apex Court which is a case of promotion from Group C to Group B post. The act of the Respondents to adopt different criteria for selection process under 70% & 30% quota for APO respectively and with selective application to Para 203.5 of the rules does not stand to scrutiny of the test of equality under Article 14 and 16 of the Constitution of India when the syllabus for both the quota is identical and the feeder category is same. The selection has to be finalized on the basis of merit in 70% quota and there cannot be any distinction for adopting a different principle without any reasonable nexus with the object sought to be achieved. Para 219 (g) negates applicability of Rule 320. The selection procedure is prescribed in Para 204 and seniority is not the basis. Hence, Shri Bhardwajs argument is that the Applicant having secured the highest marks in professional ability, Viva Voce and record of service, has not only to be empanelled but on selection should be appointed as APO over the candidates, who secured less marks.

8. Shri Shailendra Tiwary, learned Counsel appearing on behalf of the Respondents No.3 to 9 and 11 to 13 endorsed the contentions advanced by Shri Khatter and would contend that the selection was initiated for promotion from Group-C to Group-B services in the post of APO under 70% quota vacancies as per the IREM Para 203.5 and the Private Respondents having acquired the qualifying marks and having appropriate seniority were assigned their position in the List. It is further submitted by him that the 70 % quota vacancies is different from 30% quota vacancies as the former is based on non selection but the latter is based on merits. The contentions of the Counsel for Applicant was opposed to state that if the merit for the 70% quota vacancies was to be adopted it would mean that all the vacancies would be filled up only on the basis of merit, not on seniority. He further contended that the Applicant was not put in the select panel published on 16.11.2009 after she participated in the said process, and hence she should be estopped by her own conduct as held by Honble Supreme Court in Chandra Prakash Tiwari versus Shakuntala Shukla [(2002) 6 SCC 127]. Further, he also draws his reliance on the judgment of Honble Supreme Court in Om Prakash Shuklas case reported in 1986 Supp. SCC 285 to submit that when a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. He also submits that the judgments relied upon by the Counsel for Applicant, namely, the judgment of Honble High Court of Punjab and & Haryana in the Writ Petition No.4764/2002 in the matter of Subhash Chand Joshi & Ors. would not be applicable in the present case as the selection was not under Para 219 (j) of IREM but was under Para 203.5 of IREM. Referring to the Railway Board letter dated 19.06.2009, Shri Shailendra Tiwary contends that according to the said circular IREM was amended by a correction slip No.209 and Para 219 (j) was also amended accordingly and the said provision would not be relevant for the APO selection. In the above circumstances, Shri Shailendra Tiwary submits that the OA is liable to be dismissed.

13. It is not in dispute that the post of APO needs to be filled up through two different methods; first 30% by selection process on the basis of the merit and second 70% by non selection process but through the written examination and viva voce and those who qualify are to be put in the select panel. The dispute in the present OA implicitly revolves around the issue as to which of the methods 11 vacancies of APO should be filled up? While the counsel for the Applicant pleads that the merits should be the principle for selection which is envisaged for 30% quota vacancies, the Respondents counsel contends that the selection process under 70% quota vacancies envisages a qualifying bench mark and once the candidates get selected in the qualifying bench mark, it is the seniority within the group which becomes the guiding factor to put them into the panel. We find that the Respondents have called for applications from Group C eligible employees for promotion to Group B in the 70% category and logically the stand taken by the Counsel for the Respondents, as per IREM para 203.5 is correct.