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Respondents, in regard to integrated seniority list states that they have followed the Railway Board instructions contained in RBE 46/2010. The relative seniority of employees coming from different streams will be determined with reference to length of non-fortuitous service. SC/ST employees are entitled to consequential seniority and accordingly Integrated seniority list dt. 18.7.2017 was prepared. They have quoted RBE (33/2002), RBE (29/2008), RBE (46/2010) in support of their contentions. The undertaking given by ld. Solicitor General on 29.9.2016 was in regard to future promotions based on reservation and therefore, there is no violation of RBE 117/2016. Railway Board, which is the apex body to frame policy guidelines has not issued any instructions to deviate from the existing instructions in regard to reservation in promotion and consequential seniority. Relief sought are plural in nature.

It is clear from the above discussion that exercise for determining ‗inadequacy of representation', ‗backwardness' and ‗overall efficiency', is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotes who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court 23 OA 636/2017 & batch erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the ‗catch up' rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority. One another relevant observation of the Hon'ble Apex Court In S. Panneer Selvam & Others v. State of Tamil Nadu & Ors, 2015 (10) SCC 292, which has a bearing on the instant case is reproduced for reference to take a view on the dispute in the OA.

The question before the Hon'ble Apex Court was whether in the absence of any policy decision by the State for giving consequential seniority to candidates promoted on the basis of reservation prior to a senior general category candidate, claim for consequential seniority could be accepted. Answering the question in the negative, it was held that in absence of provision for consequential seniority, ‗catch up' rule will be applicable and the roster point promotees cannot claim such consequential seniority. The senior general candidates will regain their seniority on being promoted. Observations relevant in this regard are as follows :

42 OA 636/2017 & batch XIX) An associate issue related to reservation in promotion is the publication of integrated seniority list, by the respondents which has been challenged in OAs 738/2017 & 964/2017. After the Hon'ble High Court passed orders in WP No 11724 of 2013 on 22.12.2016, the earlier notification issued on 2.1.2013 for selection to the post of AE has been cancelled on 26.7.2017. Simultaneously, on the same day another notification was issued to fill up 26 posts of AEs, including SC/ST vacancies was published. To take the exercise forward, integrated seniority list was issued. Based on the integrated seniority list, the final eligibility list was issued on 10.10.2017. The grievance of the applicants is that, despite prevailing instructions and law : not permitting reservation in promotions, consequential seniority and own merit for SC/ST employees; respondents have issued integrated seniority list placing the SC/ST category employees above the applicants in the OAs referred to based on the consequential seniority granted to them by virtue of accelerated promotions given earlier. On the basis of the said integrated seniority, eligibility list was issued by placing SC/ST employees above the applicants without obtaining the willingness/unwillingness of the employees coming within the zone of consideration and also including the names of the employees who are going to retire within 2 months. The final eligibility list has thus once again been wrongly drawn up again with juniors to the applicants finding a place above them. The patent illegality resorted to will enable the erstwhile juniors to the applicants to get selected against UR vacancies, leaving the applicants who are seniors not getting selected as it had happened in the past forcing the UR employees to contest in OA 1263/2010 which was allowed and confirmed by the High Court in WP 9942 & batch to the extent of directing the respondents to abide by the parameters in Nagraj judgment. At this juncture, we recall the submission of the 43 OA 636/2017 & batch Ld. Sr. Counsel for the private respondents that the grievances of the applicants have not been projected, as is required, falls flat since the applicants, as expounded above, have been periodically agitating stating their grievance in no uncertain terms. It is also pertinent to add that executive instructions communicated through Railway Board orders cited by the respondents cannot overrule law laid by the Hon'ble Supreme Court in judgments cited. If the Railway Board has not given any instructions on consequential seniority, it would not mean that the respondents from 2 to 4 can act against law. Constructive restrainment is the hallmark of administrative efficacy when matters of administrative jurisdiction are involved with implicit legal implications.