@JUDGMENTTAG-ORDER
Mr. Mohammad Rafiq, J.—Ved Sheel Sharma and Ranjeet Singh have approached this Court by way of filing instant writ petition challenging
judgment dated 09.08.2011 passed by Central Administrative Tribunal, Jaipur Bench(for short ''the Tribunal'') whereby original application filed by
the petitioners has been dismissed and further with the prayer that order dated 16.01.2008 dismissing the claim of the petitioners to prepare panel
for promotion to the post of Junior Engineer Grade-II through Limited Departmental Competitive Examination on merit basis be also quashed and
set aside.
2. Factual matrix of the case is that Notification dated 31.03.2005 was issued by Respondent No. 2 to fill up 11 posts of Junior Engineer Grade-II
in pay scale of Rs. 5000-8000. Incumbents having qualification of Metric and experience of three years service on the post of Technician Grade-
III and on higher post were eligible to compete in the selection known as Limited Departmental Competitive Examination against 25% quota fixed
for said purpose. The petitioners, on being called, appeared for written test on 25.09.2005 and were declared successful in the result, which was
notified on 21.11.2005. Names of successful candidates were arranged in the order of merit, in which a specific note was put that this was not in
the order of seniority. However, the respondents, subsequently, did not include names of the petitioners in the panel, which was prepared on the
basis of seniority and not on merit. Aggrieved thereby, the petitioners submitted representation to the respondents which was dismissed. The
petitioners then filed original application before the Tribunal, which vide judgment dated 04.12.2007 required the respondents to decide
representation of the petitioners. The respondents vide order dated 16.01.2008 rejected representation of the petitioners on the ground that para
219(j) of Indian Railway Establishment Manual(for short ''IREM'') provides for preparation of panel on the basis of seniority and the petitioners
were not senior. Being aggrieved by the action of the respondents, the petitioner again approached the Tribunal by filing another original
application. The respondent-Railways however before the Tribunal relied on Railway Board''s letter dated 26.11.1986 and letter dated
04.01.1996 for preparing panel in the order of seniority amongst those who had qualified the written examination. The Tribunal vide impugned
judgment dated 09.08.2011 dismissed original application of the petitioners. Hence, this writ petition by the petitioners.
3. Mr. Shailendra Shrivastava, learned counsel for the petitioners argued that the Tribunal has not considered the fact that the procedure followed
by the respondents in selection in question is based on Railway Board''s letter dated 26.11.1986 was not correct and it was contrary to the
judgment of the Supreme Court dated 15.03.1996 in M. Ramjayram v. General Manager, South Central Railway, 1996 (1) SLJ (SC)
page 536. The procedure laid down in para 219(j) of IREM relied by the respondents to reject the claim of the petitioners is confined to normal
promotion and not for the promotion through selection in Limited Departmental Competitive Examination. Reliance has been placed on decision of
this Court dated 10.02.2009 delivered in the cases of Shri Sadan Singh and Shri Shiv Singh(D.B. Civil Writ Petition No. 980/2009 and
982/2009) wherein it was held that para 219 of IREM can only be applied in the case of normal promotion, but not in selection known as Limited
Departmental Competitive Examination to be conducted for promotion, where candidates from different departments and categories or seniority
are called. Therefore, the Tribunal wrongly recorded findings against the petitioners. It is argued that procedure adopted by the respondents for
preparing the panel based on seniority was under challenge and claim of the petitioners should not have been dismissed on the ground that the
instructions laid down in letter dated 08.10.2007, passed subsequent to the date of panel in question formed.
4. It is argued that the Tribunal erred in considering circular dated 26.11.1986 especially when subsequent circular of similar intent dated
16.11.1998 was under challenge before the Tribunal and the same ought to have been stuck down keeping in view of the fact that circular dated
19.06.2009 has already been issued by the Railway Board in this regard wherein it was categorically stipulated that the procedure defined in
circular dated 16.11.1998 has already been struck down by Punjab and Haryana High Court in Writ Petition No. 4746/2002 vide judgment dated
09.04.2008 and it has been held that in the matter of promotion to general post where candidates are coming from different departments and zone
of consideration is not confined to three times, panel will be formed in order of merit and not based on seniority. Even then, the Tribunal has
wrongly dismissed original application of the petitioners on the ground that at the relevant time, when panel in question was formed, circular dated
26.11.1986 was in force, which is against the settled preposition of law. Learned counsel for the petitioners argued that earlier judgment of the
Bench was in favour of the petitioners, even then the Tribunal has dismissed the original application of the petitioners contrary to earlier judgment of
same Bench which otherwise ought to have been followed as precedence or matter ought to have been referred to Larger Bench. It is further
argued that the respondents have rejected the representation of the petitioners based on Para 219(j) of the IREM, which has already been held
illegal by this Court vide judgment dated 10.02.2009 in the case of U.O.I. v. Shri Vishnu Kumar Gautam. Learned counsel for the petitioners
argued that criteria of preparing of panel on the basis of merit was adopted by the respondents in the year 2004, as they accepted the judgment of
this Court in Union of India and another v. Shiv Singh and another(D.B. Civil Writ Petition No. 982/2009) which pertain to the year 2004 and that
judgment has attained finality. Same criteria has been adopted by the respondent-Railways in respect of Limited Departmental Competitive
Examination after the year 2009 and present dispute pertains to the year 2006, therefore, same criteria ought to be applied to the case of the
petitioners. Learned counsel for the petitioners cited judgment dated 09.04.2014 passed by Division Bench of this Court in Arun Kumar
Upadhayay v. The Union of India and others(D.B. Civil Writ Petition No. 5631/2010 and three other writ petitions) and argued that same view
has been taken in that judgment. Learned counsel for the petitioners submitted that from the year 2009 onwards, in all such matters, the
respondent-Railways is preparing penal on the basis of merit in Limited Departmental Competitive Examination and not on the basis of seniority.
5. Mr. Shailesh Prakash Sharma and Mr. P.C. Sharma, learned counsel for the respondents-railways and Mr. Anupam Agarwal, learned counsel
for private respondents opposed the writ petition and submitted that as per notification dated 31.03.2005(Annexure-4 of O.A.), 25% LDCE
quota vacancies of the post of JE II were notified as per para 141(2) of IREM. All those, who were working continuously for last three years in
the unit as skilled worker in the scale Rs. 3050-4590 or above and had not completed 45 years of age, were entitled to for the selection. The
petitioners being eligible were placed in the eligibility list dated 02.09.2005 and called for written test. The selection was strictly conducted as per
Railway Board Circular No. E(NG) I-84-PM/33(AIRF) dated 26.11.1986 and GM(E) Churchgate letter No. EP/1025/0 Part-4 dated
04.01.1996. According to the aforesaid circular, only those qualified in order of seniority found their names in the final panel. Railway Board is
competent to frame rules as per Para 123 of IREM. Selection process has already been concluded and the employees, who have been included in
panel through selection process, have further been promoted and posted in various zones of Railways. At this belated stage, settled position may
not be upturned by entertaining this writ petition because the same would disturb the panel prepared on 03.01.2006 after passing of more than ten
years. Representation of the petitioners was decided by reasoned order and the Tribunal has rightly rejected original application of the petitioners.
6. We have given our anxious consideration to rival submissions of the parties and carefully examined the material available on record.
7. Division Bench of this Court dealt with similar controversy in Union of India v. Shiv Singh and another(Supra) with respect to filling up the posts
of Group C carrying pay scale of Rs. 4500-7000 through Limited Departmental Competitive Examination where 25% posts were to be filled
through LDCE in the year 2002. The controversy in that case was that whether after holding LDCE, the panel was to be drawn based on merit or
on the basis of seniority. The Railways prepared the panel based on seniority with the result that lesser meritorious candidates were placed above
the more meritorious ones. The Tribunal in that case allowed the original application. The Railways approached this Court against the judgment of
the Tribunal. Reliance on behalf of the Railways in that case was placed on Para 2 of the scheme of examination, which provided that there would
be written test and on para (d) which stipulated that the panel would be prepared on the basis of merit, which would be drawn on the basis of total
marks obtained by each candidate. In that case, Para 219 as well as aforesaid circular was relied by the Railways to justify preparation of panel on
the basis of seniority. Rejecting that argument, Division Bench of this Court held as under:
The only argument of the learned counsel for the petitioner-Railway is in reference to Para 219 of the Manual and also the circular Annexure-R/4.
Perusal of the provision of Para 219 of the Manual and circular reveals that Para 219 of the Manual applies to the case of normal promotion based
on selection and not in the case of LDCE. It is no in dispute that it is not a selection made to fill up the post by way of promotion, where the panel
is drawn based on seniority and not on the basis of merit and therein only those candidates who secured 80% marks or above, are placed at the
top of the list being outstanding candidates. So far as the present case is concerned, it is the case where 25% posts are to be filled up by way of
LDCE which are other than the posts filled up by way of normal promotion method. For filling up the post by way of LDCE, a separate circular
has been issued by the Railway which is Annexure-6 to the original application and is part of Annexure-1 to these writ petitions. Perusal of the said
circular shows as to how LDCE would be held and what would be the minimum required marks therein to be a successful candidate. The said
circular further provides that after getting the list of successful candidates, panel would be drawn in order of merit based on total marks obtained
by the candidates and not on the basis of seniority. Once such a circular has been issued by the Railway, then it cannot be ignored or violated by
making reference to Para 219 of the Manual as it is of no application to the recruitment by LDCE. This is apart from the fact that if criteria as has
been given in Para 219 of the Indian Railway Establishment Manual is applied then there would remain no difference between normal promotion
and recruitment based on LDCE from and amongst in service candidates. Thus, the argument of the learned counsel for the petitioner-Railway is
not even logical one because as and when competitive examination is conducted, a candidate having obtained higher marks has to be placed above
the candidates getting lesser marks, and the panel is required to be drawn accordingly.
8. This Court was again required to decide upon the same controversy in Arun Kumar Upadhayay(supra), wherein the Division Bench of this
Court relying upon its earlier judgment in Union of India v. Shivraj Singh Solanki(D.B. Civil Writ Petition No. 979/2009 and one more writ
petition) held as under:
Before examining the controversy & the rival submissions made, it can be noticed from the various circulars issued by the Railway Establishment
from time to time, few of which have been placed on record that under Railway Establishment Act,1989 guidelines have been issued to be
implemented by departmental committee for holding selection. Section 72 of the Act which lays down guidelines for holding Limited Departmental
Competitive Examinations, being relevant for the present purpose reads ad infra :
72. Guidelines for holding limited departmental competition.(1) Applications from eligible candidates for appearing in the limited departmental
competition to the ranks of Head Constable and Assistant Sub-Inspector shall be invited thirty days in advance of the proposed date of holding the
said competitions.
(2) The procedure for holding the said competition shall be the same as provided in Rules 70 and 71 except sub-rule (3) of the said rules.
(3) A panel shall be drawn from amongst the candidates securing sixty percent marks or more in the order of merit.
For group-B posts, circular has been issued by Railway Board dated 20.07.1995 laying down guidelines for promotion to group-B including
LDCE guidelines dated 20/25-07-1995 & apart from procedure for holding competitive examinations, final panel is to be prepared of the
successful candidates on the basis of marks originally secured in the examination & clause-9.4 of the circular dated 20/25-07-1995 being relevant
for the present purpose reads ad infra :-
There will be no grading of successful candidates as outstanding, good etc. Their names will be arranged in the order of merit on the basis of the
total marks obtained by each of the candidates.
Regarding promotion against LDCE quota in the cadre of OS-II & P-I, it has been circulated by the Railway Board vide their circular dated
17/06/2005, apart from criteria introduced, separate procedure has been provided for holding LDCE & sub-clause (v) of clause-3 mandates to
prepare final panel of successful candidates in the order of merit, that being relevant reads ad infra:-
(v) Based on (iv) above the RRB will furnish the panel of successful candidates in order of merit, equal to the number of total vacancies intimated
by the Zonal Railway/PU concerned. While it will be preferable to post the successful and candidates in their respective Department/Units, there is
no bar to their being posted else here if the number of successful candidates does not match the number of already assessed vacancies in the
respective Deptt./Unit.
The Division Bench of this Court in the judgment referred to dated 10.02.2009 which mandates regarding preparation of the final panel on the
basis of marks secured by the successful candidates who had participated against vacancies reserved for LDCE quota, being relevant reads ad
infra:-
(d) There will be no grading of successful candidates to as outstanding very good etc. There names be arranged in order of merit on the basis of
the total marks obtained by each of the candidates.
As regards Para 219J of the Manual, it was observed in the judgment (supra) while examining the controversy which arose in regard to the
selection process initiated in the year 2004 filling up the post of Junior Engineer Grade-II against 25% LDCE quota that 219(j) lays down
regarding promotion to general selection posts & not relevant with regard to 25% LDCE quota in the various groups/cadres and another circular
has been placed on record issued by the Ministry of Railways (Railway Board dated 19.06.2009) regarding selection procedure to general
selection post & placement of names on panel and it has been clarified that separate instructions have been issued prescribing different modes for
placing names on panel in few categories, viz LDCE quota in the various categories which is issued from time to time & promotion to general
selection post there is the procedure for regular promotion to general selection posts to be filled in terms of Para-219(J) IREM (U.L.I.) 1989 and
in terms of instructions contained in para(iii) of 219(J) final panel is to be prepared on the basis of seniority from amongst those who secure a
particular percentage of marks but in the instant case we are not concerned with the promotion to be made by general selection which obviously
has to be made after selection on the basis of seniority but as regards 25% LDCE quota, we find no reason of doubt that after judgment of this
Court referred to supra dated 10.02.2009 that panel is to be prepared on the basis of marks secured in the examination on merit where seniority
of the incumbent of the lower grade/cadre is not relevant for preparation of final panel of the candidates who had participated against 25% LDCE
quota action of the respondent cannot be held justified and sustainable under the law.
9. We may at this stage take note of the fact that present dispute pertains to same period where for the writ petitions were filed in the year 2010-
11 by employee Arun Kumar Upadhayay(supra) and others. On specific query of the Court, Mr. P.C. Sharma, learned counsel for the
respondent-Railways has fairly admitted that aforesaid two judgments have attained finality. When already panel regarding Limited Departmental
Competitive Examination for different posts has been drawn on the basis of merit in respect of selection of 2004 and thereafter in respect of year
2009 onwards, preparation of panel in the present case should be on merit basis alone and not on seniority basis.
10. Punjab and Haryana High Court in Subhash Chand Joshi and others v. Union of India and others; 2008 LIC 4333 also dealt with Rules
215 and 219(j) of the Indian Railway Establishment Manual, Volume I with regard to promotion to the post of Signal Inspector Grade-III against
20% intermediate quota through LDCE and held that promotion by selection on merit from different cadres excludes seniority and is on merit alone
and therefore merit would be relevant for determining the right of promotion. There is no common seniority amongst different feeder cadres. Clause
(j) of Rule 2019, which contemplates a panel in the order of seniority, is wholly illegal. Punjab and Haryana High Court in that case struck down
Clause (j) of Rule 219(supra) and directed that preparation of panel and promotion be made in accordance with merit of selection. It would be
evident from circular dated 19.06.2009 issued by the Railway Board addressed to all General Managers(Personnel) that the aforesaid judgment
delivered by Punjab and Haryana High Court has been upheld by the Supreme Court. In the aforesaid circular, the Railway Board, in supersession
of all previous circulars, has directed that in such like selections, panel will be prepared on the basis of merit and not on the basis of seniority.
11. In view of above discussion, writ petition deserves to succeed and the same is accordingly allowed. Judgment dated 09.08.2011 passed by
the Tribunal is set aside and original application in terms of prayer made therein stands allowed with direction to respondent-Railways to prepare
the penal on the basis of merit of the candidates, who qualified Limited Departmental Competitive Examination ignoring circular dated 16.11.1998
issued vide correction slip No. 263/98.
12. Compliance of this order be made by the respondent-Railways within three months from the date of production of copy of this order.