OA 2765/2009. Case: 1. Bhramesh Kumar Gupta S/o Ramesh Chand, 2. Prem Chand Gupta S/o Mata Deen Gupta, 3. Vijendra Singh S/o Mahlader Singh, 4. Mahender Kumar Meena S/o Surbyani Ram, 5. Vinod Kumar S/o Beeta Singh Vs 1. Union of India, Through the General Manager, Northern Railway, New Delhi, 2. Divisional Railway Manager, Northern Railway, Delhi DN., 3. Divisional Personnel Officer, Divisional Railway Manager's, Northern Railway, Delhi DN., 4. Dharam Singh Negi, Sr. Loco Pilot Goods, N.Rly. Station, 5. Dinesh Kumar, Sr. Loco Pilot Goods, N.Rly. Station, 6. Gaya Parshad Moraya, Sr. Loco Pilot Goods, N. Rly. Station, Ghziabad, 7. Rajinder Singh Rauthen, Sr. Loco Pilot Goods, N. Rly. Station, 8. Surinder Pal Singh, Sr. Loco Pilot Goods, N. Rly. Station, Ghaziabad, 9. Ashok Kumar Dua, Sr. Loco Pilot Goods, N. Rly. Station Ghaziabad, 10. Sunil Kumar, Sr. Loco Pilot Goods, N.Rly. Station, Panipat (Har.), 11. Harish Kumariyan, Sr. Loco Pilot Goods, N. Rly., Station, Delhi, 12. Yadvinder Singh, Sr. Loco Pilot Goods, N. Rly Station,.... Central Administrative Tribunal
| Case Number | OA 2765/2009 |
| Judges | V. K. Bali (Chairman), L. K. Joshi (Vice Chairman) & Meera Chhibber (Judicial Member) |
| Issue | Service Law |
| Judgement Date | January 04, 2011 |
| Court | Central Administrative Tribunal |
Judgment:
L. K. Joshi (Vice Chairman), (Principal Bench New Delhi)
1. The question, which has arisen for consideration in this reference to the Full Bench, is whether promotion to the post of Loco Inspector, by inviting 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' in accordance with the paragraph 219 of the Indian Railway Establishment Manual (IREM), Volume (1) modified from time to time along with other relevant circulars and judicial pronouncement on the subject. A related issue placed before us is whether the issuance of notification about the post of Loco Inspector being 'General Selection' post, midway through the process of selection, would vitiate the process of selection itself.
2. A narration of facts and circumstances which gave rise to the reference is necessary. The Applicants in the OA are Senior Loco Pilot Passenger, Loco Pilot Passenger, Loco pilot Mail and Loco Pilot Goods. The Divisional Railway Manager (DRM), Northern Railway, the second Respondent herein, invited applications for selection to the post of Loco inspector by a circular dated 07.07.2008, which, inter alia, read thus:
"It has been decided to hold a selection for the post of Loco Inspector for 46 vacancies (UR 24 SC 13, ST 9). In terms of P.S. No. 12527 Goods/Sr. Goods Driver, Passenger/Sr. Passenger Drivers and Mail/Express Drivers having a minimum combined three years footplate experience as Goods/Sr. Goods Driver. Passenger/Sr. Passenger Drivers/Mail/Express Drivers are eligible to apply for the post of Loco Inspectors, besides this in terms of PS No.13242 medically decategorised Drivers upto the level of A-3 subject to the conditions mentioned in terms of PS No. 12327 are also eligible to apply for the post of Loco Inspector, hence applications amongst the Drivers who fulfil the terms and conditions mentioned in above mentioned PS No. 12527 & 13242 may apply."
The result of the written test was declared on 21.07.2009, in which the Applicants were successful. Out of 185 candidates, who participated in the tests, 38 candidates, including the Applicants, were declared successful. However, the final panel was not issued till 03.09.2009, when the circular of even date on the subject of "Implementation of recommendations of 6th CPC-Merger of grades-Revised classification and mode of filling up of non- gazetted posts" was issued. The post of Loco Inspector was renamed as Assistant Loco Inspector and placed in Pay Band 2 with grade pay of Rs.4200/-. The post of Loco Inspector (renamed Assistant Loco Inspector), which earlier also had to be filled up hundred per cent by promotion by the method of selection, was declared to be General Selection post to be filled up cent per cent by promotion. The panel of selected candidates was declared on 22.09.2009, where the selected candidates were placed serially on the basis of merit and not seniority. This order dated 22.09.2009 has been impugned in the OA before us. The Applicants were not successful in the final panel, being lower in merit than the candidates placed in the above said panel.
3. An identical matter had come up before the Mumbai Bench of this Tribunal in OA number 156/2010, Krishnakumar Kanhaiyalal and others V. Union of India and others and six other related OAs. The applicants in these OAs were challenging the selection for the post of Loco Inspector from various grades of Loco Pilots by applying the criteria of General Selection. The learned Bench allowed the Original Applications by making the following observations:
However, in the present case in hand, all the applicants belong to the same cadre, that of Loco Pilot goods/passenger/Mail/Express Drivers. Therefore, there cannot be any further classification of train drivers based only on their driving different types of trains. No nexus with any ostensible object to be achieved by such an artificial classification is brought on record by the Respondents. It is also not the case of the Respondents that the Assistant Train Drivers or Drivers at the entry level are differentiated on the basis of their qualification or their mode of selection is different for being considered and selected as Loco Pilot/train drivers. All the train drivers, therefore, sail in the same boat. They belong to one class of train running staff. The VIth Central Pay Commission has brought them at par in the matter of pay scale except a minor variation in risk allowance.
28. In view of the above discussion on law and fact, all the seven OAs. stand allowed in terms of prayers contained in para 8 thereof. The respondents are directed to complete and finalise the selection process in question within a period of 3 months from the date of receipt of a copy of this order in accordance with the first notification dated 02.01.2009. No order as to costs.
The Honourable Punjab and Haryana High Court had taken a different view altogether in Writ Petition (C) number 4746-CAT of 2002, decided on 09.04.2008 in the matter of Subhash Chand Joshi V. Union of India and others, in which the same issue was involved by, inter alia, placing reliance on the judgement of the Honourable Supreme Court in M Ramjayaram V. General Manager, South Central Railway and others 1996 (1) SC SLJ 536, arising out of Civil Appeal number 5085 of 1996 decided on 15.03.1996. The learned Mumbai Bench had considered both the judgments in Krishnakumar Kanhaiyalal (supra), cited above, and distinguished these in its judgement. A coordinate Bench of this Tribunal had decided in OA number 2108 of 2007, Nadeem Ahmad V. Union of India and others and in another OA number 421 of 2008, Shri Kailash Chand Gujjar V. Union of India and others in the cases of selection for the post of Technician Grade III and Junior Engineer Grade II respectively that when the participating candidates were from different categories and there was no common seniority list, the selection is to be made on the basis of merit and the element of seniority could not be introduced for selection. In another OA number 2377 of 2008, Komal Prasad V. Union of India and others, decided on 05.03.2010, an identical issue arose in the selection of Senior Permanent Way Supervisor from among Gangman, Keyman and Bungalow Peon. The learned DB, following the judgement of the Honourable Supreme Court in M Ramjayaram 1996 (1) SC SLJ 536 (supra), held that for preparing the final list of selected candidates, seniority could not be made the basis and the list had to be based only on merit. The matter is thus before us for consideration in the light of the conflicting decision of the Mumbai Bench, taking a different view from the cases cited above.
4. The case of the Applicants is that there was no mention in the notification dated 07.07.2008, calling for applications for the post of Loco Inspector, that the said post was to be filled up by 'General Selection'. The stipulation that the post will be included in the category of 'General Selection' posts was introduced only by the circular dated 03.09.2009. Our attention has been drawn to the definition of the 'General Selection' posts, given in paragraph 219 (i) of the IREM, Volume I, which is extracted below:
(i) For general posts i.e. those outside the normal channel of promotion for which candidates are called from different categories, whether in the same Department or...
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