M. Swaminathan, Judicial Member
This OA have been filed under Section 19 of the Administrative Tribunals Act, 1985, by three applicants viz., K. Sankaranarayanan, C.H. Subashini and B. Sundaramoorthy claiming the following relief:
"to call for the records relating to the 2nd respondents (A-3) order made in number P(G)532/XII/APO-70%/2016-18(Pt.), dated 09.09.2016 in so far as the 4th, 5th and 6th respondents are concerned and subsequent order passed by the 2nd Respondent made in (A-6) order no. P(G)532/XII/APO-70%/2016-18 (Pt.) dated 08.12.2016 and to quash the same and further direction to the official respondents to issue a panel as per the law direction laid down by the Hon'ble Apex court and to promote the applicants to the post of Assistant Personnel Officer from the date of the party respondents were promoted with all con sequential benefits and pass such further orders or other orders as this Hon'ble Tribunal may deem fit and render justice".
2. The essential facts which are necessary for adjudication of the OA are as follows:
All three Applicants are working in the Personnel Branch at Headquarters/Divisions and are eligible to participate in and complete the General Selection for the post of Assistant Personnel Officer (APO), in accordance with the prescribed rules and terms and conditions. The 2nd and 3rd Respondents issued a selection notification for filling up the vacancies of Assistant Personnel Officer under the 70% promotional 4 OA/310/01840/2017 quota. The post of APO is a general post, and the selection is required to be conducted as a "General Selection" in terms of Rule 203.8 of Section 'A', read with Rule 219(j) of Section 'B' of Chapter II of the Indian Railway Establishment Manual, Volume-I (IREM Vol.-I). It is an established principle of law, as laid down by the Hon'ble Supreme Court in M. Ramjayaram v. General Manager, South Central Railway, (1996) 1 SC SLJ 536, and in Union of India (Railway Board) v. Subhash Chand Joshi, arising out of SLP (C) No. 16774 of 2008 against the judgment of the Hon'ble Punjab and Haryana High Court in Writ Petition (C) No. 4746-CAT of 2002, decided on 09.04.2008, that the final panel in a General Selection is required to be prepared strictly on the basis of merit and not on the basis of integrated seniority. However, contrary to the aforesaid principle and the applicable rules, the 2nd and 3rd Respondents, instead of preparing the panel strictly in order of merit, have prepared the empanelment by including candidates who secured lesser merit while excluding the highly meritorious Applicants. The names of Respondents 3, 4 and 5 have accordingly been included in the panel, whereas the Applicants, despite having secured higher merit, have been left out. Such action is contrary to Rule 219(j)(iii) of the IREM and the principles laid down by the Hon'ble Supreme Court in the aforesaid judgments. It is further submitted that the aforesaid judgments have already been accepted 5 OA/310/01840/2017 and implemented by the Respondents and the relevant provisions of the IREM Vol.-I have also been amended/modified accordingly. Therefore, the Respondents are bound to follow the settled legal position and the applicable statutory provisions while preparing the final panel. In the circumstances, the Applicants, being the candidates higher in the order of merit and otherwise eligible for empanelment against the three unreserved (UR) vacancies, are aggrieved by their exclusion from the panel. Hence, the Applicants have approached this Tribunal for the aforementioned relief.
3. The learned counsel for the Applicant principally contended that the selection to the post of Assistant Personnel Officer (APO) is a General Selection for a general post and, therefore, no integrated seniority list is required to be prepared in the manner applicable to selections conducted department-wise or category-wise. Consequently, according to the learned counsel, the provisions contained in Paras 203.2, 203.7 and 204.9 of the IREM have no application for the purpose of preparing the empanelment in the present General Selection. The learned counsel further submitted that the law laid down by the Hon'ble Supreme Court in M. Ramjayaram v. General Manager, South Central Railway, (1996) 1 SC SLJ 536, and in Union of India (Railway Board) v. Subhash Chand Joshi, arising out of 6 OA/310/01840/2017 SLP (C) No. 16774 of 2008 against the judgment of the Hon'ble Punjab and Haryana High Court in Writ Petition (C) No. 4746-CAT of 2002, decided on 09.04.2008, squarely governs the manner in which the panel is required to be prepared in a General Selection. Reliance was also placed upon Railway Board Letter No. E(NG)I-2008/PM7/4 SLP dated 19.06.2009 (RBE No. 113/2009), which, according to the learned counsel, was issued pursuant to the aforesaid judicial pronouncements and is required to be followed while preparing the empanelment in a General Selection for a general post.
4. It was further submitted that the representation submitted by the Applicant specifically raised the aforesaid two issues, namely, (i) the inapplicability of the provisions relating to integrated seniority in a General Selection for a general post, and (ii) the applicability of the law laid down in the aforesaid judgments of the Hon'ble Supreme Court and the consequential Railway Board instructions. However, the Respondents failed to deal with either of these issues by passing a reasoned and speaking order. Instead, the representation was disposed of merely by referring to Para 204.9 and recording the conclusion that, "In view of the above, there is no merit in your representation and the panel dated 09.09.2016 needs no review." The learned counsel submitted that such an 7 OA/310/01840/2017 order does not constitute a proper or effective consideration of the specific grounds raised in the representation. The mechanical reliance upon an allegedly irrelevant provision, without examining the applicability of the said provision to a General Selection or dealing with the binding judicial precedents relied upon by the Applicant, renders the decision-making process unsustainable.
5. The learned counsel accordingly contended that the manner in which the representation was considered and disposed of by the official Respondents is contrary to the settled principles governing administrative decision-making and the law laid down in M. Ramjayaram v. General Manager, South Central Railway, (1996) 1 SC SLJ 536, as well as Union of India (Railway Board) v. Subhash Chand Joshi, arising out of SLP (C) No. 16774 of 2008 against the judgment dated 09.04.2008 of the Hon'ble Punjab and Haryana High Court in Writ Petition (C) No. 4746-CAT of 2002.
6. The learned counsel also drew the attention of the Tribunal to the decisions of the Principal Bench of this Hon'ble Tribunal in OA No. 2108 of 2007, Nadeem Ahmad v. Union of India & Others and OA No. 421 of 8 OA/310/01840/2017 2008, Shri Kailash Chand Gujjar v. Union of India & Others. It was submitted that, in those matters concerning selections to the posts of Technician Grade III and Junior Engineer Grade II respectively, the Tribunal had considered situations where the participating candidates belonged to different categories and there was no common seniority list among them. According to the learned counsel, the principle emerging from the aforesaid decisions is that, where candidates from different categories participate in a common selection and there is no common or integrated seniority applicable to all the participating candidates, the selection is required to be made on the basis of merit, and the element of seniority cannot be introduced for determining the order of empanelment. On the strength of the aforesaid judicial pronouncements and the Railway Board instructions, the learned counsel therefore submitted that the impugned empanelment could not have been prepared by applying the principle of integrated seniority and that the Applicants' claim was required to be considered strictly in accordance with the merit position secured by them in the General Selection.
7. The learned counsel further submitted that the law laid down by the Hon'ble Supreme Court in M. Ramjayaram v. General Manager, South Central Railway, (1996) 1 SC SLJ 536, and Union of India (Railway 9 OA/310/01840/2017 Board) v. Subhash Chand Joshi, arising out of SLP (C) No. 16774 of 2008 against the judgment dated 09.04.2008 of the Hon'ble Punjab and Haryana High Court in Writ Petition (C) No. 4746-CAT of 2002, constitutes the law declared by the Hon'ble Supreme Court under Article 141 of the Constitution of India. It was contended that judgments rendered by the Hon'ble Supreme Court on general rules and common policies are applicable in rem to all similarly situated cases. The Railway Administration, being a model employer, is therefore required to implement such decisions uniformly in all analogous cases, without insisting upon individual representations. Any failure to give effect to such binding decisions, according to the learned counsel, would be contrary to the mandate of Article 141.
8. Finally, the learned counsel submitted that, in view of the aforesaid judgments and the policy instructions contained in Railway Board's RBE No. 113/2009, the empanelment order dated 09.09.2016 (Annexure A-5) and the order disposing of the Applicant's representation (Annexure A-7) are contrary to the applicable rules and the settled legal position. He therefore prayed that Annexure A-5 and Annexure A-7 be set aside, a fresh panel be prepared in accordance with the law laid down by the Hon'ble Supreme Court and the applicable Railway Board instructions, and the 10 OA/310/01840/2017 Applicants be promoted to the post of Assistant Personnel Officer from the date on which the Respondents were promoted, together with all consequential benefits.
9. After service of notice, the Respondents entered appearance through learned counsel and filed their reply statement, denying the averments made in the Original Application, except those specifically admitted on facts.
10. The learned counsel for the Respondents submitted that, although the Applicants secured higher aggregate marks in the written examination, viva-voce and Record of Service, they were not empanelled in view of the provisions of Para 204.8 of the Indian Railway Establishment Manual, Volume-I, Chapter-II, Section 'A'. Under the said provision, successful candidates are graded as "Outstanding" if they secure 80% marks or above and as "Good" if they secure between 60% and 79% marks.
11. It was further submitted that, in terms of Para 204.9 of the IREM, the panel is to comprise employees who qualify in the selection, corresponding to the number of vacancies, with candidates graded 11 OA/310/01840/2017 "Outstanding" placed first, followed by those graded "Good", while maintaining inter-se seniority within each grade. Since none of the candidates who appeared for the viva-voce secured the "Outstanding" grading, the panel was prepared on the basis of seniority, corresponding to the number of vacancies, in accordance with Paras 204.8 and 204.9 of the IREM. It was also contended that the Applicants have not challenged the validity of the aforesaid provisions in the present OA.
12. The learned counsel further submitted that, in terms of Para 204.10 of the IREM, the recommendations of the Selection Committee were placed before the General Manager, Southern Railway, for approval, which was duly accorded, following which the panel was published. It was also submitted that, under Para 204.6 of the IREM, the viva-voce is intended to assess the candidates' personality, address and leadership qualities. Where no separate written test is conducted for assessing professional ability, such ability is also required to be assessed during the viva-voce through questions having a practical orientation. Accordingly, the Respondents contended that the selection and empanelment were carried out strictly in accordance with the relevant provisions of the IREM and that the Applicants' claim for interference with the published panel was therefore untenable.
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13. She further submitted that in terms of Para 204.7 of Indian Railway Establishment Manual, Volume - I, marks for record of service should be given on the basis of Confidential Reports and relevant service records. The respondents further submitted that the Railway Board order No. E (NG) 1-2008/PM7/4 SLP dt.19.06.2009 issued on the direction of the Hon'ble Apex court in the case of Ramjayaram CDJ 1996 SC 092 relied upon by the applicant is applicable only for promotion within Group "C" staff and not for promotion from Group "C" to Group "B" service. Further the rules regarding promotion from Group "C" to Group "B" service has been spelt out in para 204.8 & 204.9 of IREM, in support of their contentions, the respondents have relied upon the judgment, dated 09.03.2011 of the Principal Bench of this Tribunal in OA No.2167/2010 in the case of Mrs. Mamta Sareen Vs Union of India and prayed for dismissal of the OA.
14. We have considered the submissions made by the learned counsel on either side, perused the pleadings and materials available on record. We have also carefully gone through the judgments relied upon by the respective counsel.
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15. Before proceeding to examine the rival contentions and the merits of the case, it is necessary to determine the relevant provisions of the Indian Railway Establishment Manual (IREM) governing promotion to the post of Assistant Personnel Officer (APO). It is not in dispute that the post of APO is a Group 'B' post covered by Rule 203.8 of Chapter II, Section 'A' of the IREM. Section 'A' of Chapter II deals with the rules governing promotion from Group 'C' to Group 'B', whereas Section 'B' deals with promotion to Group 'C' posts. Section 'A' comprises Rules/Paragraphs 201 to 209. Rule 203.8 specifically provides that, in selections for Group 'B' posts of Assistant Personnel Officer, all eligible employees who volunteer for the selection are required to be considered, without any restriction on the number of candidates permitted to participate. Thus, the selection to the post of APO is governed by the provisions applicable to Group 'B' selections under Section 'A' of Chapter II.
16. For a proper appreciation of the controversy, it is therefore necessary to examine the relevant provisions of the IREM relied upon by both parties. The Railway Board has also issued a Master Circular consolidating the instructions governing promotion from Group 'C' to Group 'B', incorporating the relevant provisions of the IREM. The said instructions are applicable to the selection in question. The relevant 14 OA/310/01840/2017 provisions contained in Paras 203.5, 204.8 and 204.9 of the IREM, which have a bearing on the selection to the post of APO, are extracted below for consideration:
"203.5 Where employees from different streams are eligible to appear for the selection, their integrated seniority for the purpose of selection should be determined on the basis of total length of non-fortuitous service rendered in Grade 6500-10500 and above.
204.8. Successful candidates shall be arranged as follows:
Those securing 80% marks and above graded as 'Outstanding'. Those securing between 60% marks and 79% marks graded as 'Good'.
204.9. The panel should consist of employees who have qualified in the selection, corresponding to the number of vacancies for which the selection was held. Employees securing the gradation 'Outstanding' will be placed on top followed by those securing the gradation 'Good' inter se seniority within each group being maintained. "
17. Admittedly, Para 219 of the IREM deals with the procedure to be adopted by Selection Board in respect of promotion of non-gazette Group 'C' staff. Though the counsel for the Applicant referred to the said paragraph, we are of the opinion that the said paragraph coming for promotion of Group 'C' posts to Group 'B' posts and would not be applicable for Group 'B' posts.
18. We also would like to the extract the total marks obtained by the 15 OA/310/01840/2017 applicants and the private respondents for the Selection to Group 'B' post of Assistant Personnel Officer - 70%:
| Marks | Marks out of 150 | Viva (25) | Record of Service | Total Marks (200) |
| G. Balasubramanian (4th Respondent) | 92.0 | 15 | 23.6 | 13.06 |
| S. Venkararaman (5th Respondent) | 93.0 | 15 | 23.3 | 131.3 |
| V.P. Ramesh (6th Respondent) | 93.0 | 14 | 21.2 | 128.2 |
| K. Sankaranarayanan (1st Applicant) | 93.0 | 18 | 21.3 | |
| B. Sundramoorthy (3rd Applicant) | 92.5 | 16 | 24.5 | 133 |
| C. H. Subhashini (2nd Applicant) | 100.5 | 19 | 24.4 | 143.9 |
20. Para 204.8 of the IREM prescribes the grading mechanism applicable to the selection. Candidates securing less than 60% marks in the overall assessment, taking into account the written examination and viva- voce, do not qualify for consideration. Candidates securing 60% marks or above are accordingly placed in the qualifying pool and are graded into two categories: (i) candidates securing 80% marks or above are graded as "Outstanding"; and (ii) candidates securing between 60% and 79% marks are graded as "Good". Para 204.9 further provides for preparation of the panel by placing candidates graded "Outstanding" above those graded "Good", while maintaining inter-se seniority within each respective grade. Thus, once the prescribed qualifying standard is achieved, the order of empanelment is determined in accordance with the grading and the applicable seniority criterion, rather than merely by the aggregate marks obtained in the written examination and viva-voce.
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21. In the present case, the Applicants voluntarily participated in the selection process conducted for filling the vacancies under the 70% quota. They submitted their applications, appeared in the written examination and participated in the viva-voce with full knowledge of the rules governing the said selection. Although the Applicants secured higher aggregate marks than some of the candidates who were ultimately empanelled, they were not included in the panel as their position in the relevant seniority criterion was lower and the number of vacancies was limited. The mere fact that the Applicants secured higher marks cannot, by itself, entitle them to empanelment contrary to the procedure prescribed under the applicable rules. Having participated in the selection process without challenging its governing conditions, the Applicants cannot, after the result, seek to alter the basis of empanelment on the ground that a different criterion based solely on comparative merit would have produced a different result. The principle of estoppel, in the circumstances, also assumes relevance.
22. On a consideration of the applicable provisions, we find that, for filling the vacancies under the 70% quota, the Respondents adopted the prescribed qualifying standard and thereafter applied the grading and seniority criteria contemplated under Paras 204.8 and 204.9 of the IREM. Candidates securing the prescribed qualifying marks were considered for 18 OA/310/01840/2017 graded "Good" and inter-se seniority being maintained within each grade. In the absence of any candidate securing the "Outstanding" grading, the candidates falling in the "Good" category were arranged in accordance with the applicable seniority. Thus, the scheme of the IREM does not contemplate comparative merit based solely on the aggregate marks obtained in the written examination and viva-voce as the determining criterion for empanelment under the 70% quota. Accordingly, we find no procedural infirmity in the manner in which the Respondents prepared the panel under the applicable provisions of the IREM. The Applicants' contention that their higher aggregate marks, by themselves, confer a right to empanelment under the 70% quota cannot be accepted.
23. We find that the issue is also no longer res integra since similar issue was considered by the Principal Bench of this Tribunal in the case of Mrs. Mamta Sareen Vs Union of India & Others, in OA No.2167/2010. The relevant portion of the order, dated 09.03.2010 is extracted below:
'18. Counsel for the Applicant very elaborately explained the judgment of Punjab & Haryana High Court in the case of Subhash Chand Joshi & Others (supra) where the judgment of N. Ramjayaram was relied upon. We also note that in the case of Subhash Chand Joshi (supra) the facts and the controversies in the selection process of Signal Inspectors were far different from that of the present selection process for the APOs. The law laid down in the cited judgment indicates that the appointment to the post of 19 OA/310/01840/2017 SignalInspector Grade-III was from 3 different sources in the following manner viz (1) 40% by seniority cum suitability; (2) 40% by direct recruitment, and (3) 20% known as Intermediate Quota from different sources which include E.S.M. Grade-1, E.S.M. Grade-II and Master Craftsman. The Hon'ble High Court while setting aside the impugned order of the Tribunal and holding the promotion of the Respondents No.5 to 8 as illegal directed the petitioners to promote Respondents No.1 to 4 to the post of Signal Inspector Grade-III from the same date when Respondents No.5 to 8 were promoted and further observed that Clause (j) of Rule 219 of the Railway Manual contemplates that the names of selected candidates i.e. the candidates who have obtained more than 60% marks in the written test, are to be arranged in the order of seniority. There is no common seniority list on the basis of which their names can be placed in seniority for promotion against 20% Intermediate Quota posts. Clause (j) was declared wholly illegal and arbitrary as the rule of seniority sought to be introduced when there was none and when the promotion was to a selection post by a selection method on merit in the qualifying examination. The issue of selection in the above said case was for the selection post and the selection method was on merits. In the present case, the post is a non selection post though the process of selection to the post was through qualifying bench mark of 60% which meant that written examination and viva voce were the method to put the selected candidates in the panel. The candidates came from Group-C and their inter se seniority was adopted. Nowhere, the Applicants have disputed that there is no inter se seniority list of the competing candidates in Group 'C' for the post of APO.
Therefore, in our considered opinion that the judgment in Subhash Chands case (supra) would not be applicable in the present OA.
19. Counsel for the Applicant has also placed reliance on the judgment of Full Bench of this Tribunal in the case of Bhramesh Kumar Gupta and others versus Union of India and Others (OA No.2765/2009 decided on 4.01.2011) in which the issue is whether the promotion to the post of Loco Inspector by notifying applications from the grade of Loco Pilot (formerly driver) Goods, Senior Loco Pilot Passenger and Mail Loco Pilot, who have different scales of pay and different seniority lists, would be on the basis of seniority or on the basis of merit. In other words, whether the promotion to the post of Loco Inspector is through normal channel selection or through General Selection is in accordance with the paragraph 219 of the Indian Railway Establishment 20 OA/310/01840/2017 Manual (IREM), Volume (1). We have very closely gone through the said judgment and note that the Tribunal has taken into consideration the judgment of Hon'ble Supreme court in the case of M. Ramjayaram (supra) and Hon'ble High Court of Punjab & Haryana in the case of Subhash Chand Joshi (supra) and has held that the Circular of 19.06.2009 was issued mainly on the basis of the judgment of Hon'ble Punjab and Haryana High Court. It has been further held that Rules of the game were changed midstream and since the procedures being followed was illegal, the correction was followed in that procedure which would be applicable retrospectively. The Tribunal held that the selection for the post of Loco Inspector is a General Selection post and the selection from amongst the drivers of different categories has to be made on the basis of merit and seniority would have no consideration and also held that the issuance of circulars dated 19.06.2009 and 03.09.2009, which are primarily in compliance of the judicial verdicts, would not amount to change in the rules of the game midstream and would not vitiate the process of selection. We also find that the circulars dated 19.6.2009 and 3.9.2009 will not impact the selection of the private Respondents.
20. There is logic in the argument of the counsel for the Respondents that the Applicant has submitted her application for the post of APO under 70% quota, wrote examination, attended viva voce test but could not be selected as her seniority was low and number of vacancies were limited. It is heartening to note that she secured marks higher than the selected candidates. Had the vacancies been in 30% quota, she would have been in the panel. But, she is well aware of the category under which she is applying. Just because she has got higher percentage marks, the selection process cannot be bent through judicial intervention. Ultimate selection for promotion is on the basis of seniority in the grade of Good and not on the marks secured in the written examination and viva voce test. Legally, the Applicant is barred by the doctrine of estopple as she has participated in the prescribed selection process.
21. The selection process was undertaken by the Official Respondents for the vacancies which arose on 1.4.2008 and thereafter. Hence, the extant IREM Rules would be applicable and the amendments done later on cannot have retrospective effect.
22. Considering the totality of facts and circumstances of the case and the extant rules on the subject of promotion to APO 21 OA/310/01840/2017 posts, we come to the considered conclusion that seniority is the guiding criteria in the category of candidates rated 'Good' (more than 60% and less than 80%) and as per the IREM para 204.9 merit has no place among the candidates in 'Good' category. Thus, the Applicant fails in her case to convince us to intervene in the matter. Resultantly, the OA being devoid of merits is dismissed. No costs.
24. During the course of hearing, learned counsel for the respondents submitted that while the OA was pending before this Tribunal, the 1st applicant who retired on attaining the age of superannuation on 31.07.2019 was subsequently expired on 26.08.2019. She further submitted that the 2nd Applicant was promoted to the post of APO on 21.05.2026 in the subsequent selection and the 3rd respondent was promoted to the post of APO on 31.05.2024 and subsequently retired.
25. In view of the above, the OA in respect of the 1st Applicant is Abated. The OA is dismissed in respect of 2nd and 3rd Applicant. No order as to costs.