UNION OF INDIA Vs. ASHIM KUMAR SINHA

JUDGEMENT

(1.) The Petitioners in W.P.C.T. 198 of 2010 and Respondent in W.P.C.T. 291 of 2010 (hereinafter referred to as the Respondent) initiated selection process for the post of Apprentice Mechanic Inter -State (Electrical) which was a selection post. Out of twenty -two vacancies, three vacancies were reserved for Scheduled Caste, two for Scheduled Tribe and the rest seventeen for the unreserved category. The authorities held a written test on August 6, 2005 and published the result on November 14, 2005. The authority published the final panel on February 21, 2006 where the Petitioners in W.P.C.T. 291 (hereinafter referred to as the Petitioners) were successful in getting their names empanelled. The private Respondents challenged the panel by filing O.A. No. 209 of 2006 before the Central Administrative Tribunal, Calcutta Bench. It was contended before the Tribunal by and on behalf of the private Respondents that the private Respondents were working as Electrical fitter, grade -II or grade -III. They applied for the post being eligible for the same. Their names appeared at serial No. 14, 60, 29 and 22 respectively whereas the candidates whose names were appearing below the private Respondents, were given appointment. The Respondent contested the said application by filing rejoinder. According to the Respondent, although the private Respondents faired well in the selection process they could not be given appointment considering the overall merit as well as seniority. They relied upon paragraph 219 of IREM Volume -I 1989 edition wherein seniority was allotted fifteen marks. The Tribunal ultimately held that since it was a selection post the Respondent committed illegality by giving preference to seniority. The Tribunal allowed the application quashing impugned panel and directed the Respondent to redraw the panel according to merit only keeping in view the provision of paragraph 219 and the decision of the Apex Court in the case of Ramjayaram v/s. General Manager, South Central Railway and Ors reported in 1996 II SLR 655. The Petitioners filed a review application being R.A. -16 of 2009. The Tribunal vide judgment and order dated January 20, 2010 dismissed the said application. Against the Tribunal's judgment and order dated July 29, 2008 the Petitioners also filed an application before this Court being WPCT 242 of 2008. This Court dismissed the said application. The private Respondents filed a contempt petition before the Tribunal. Before the rule of contempt was served the Respondent had redrawn the panel on January 5, 2009. Challenging the panel, the private Respondents filed an application being O.A. No. 1631 of 2009 inter alia praying for quashing of the panel, which according to the private Respondent, was not redrawn in terms of the order of the Tribunal in its true spirit. Pertinent to note, the Railways for the second time had redrawn the panel, however again given weightage to seniority taking recourse to the amended Rule 219 and thereby the grievance of the private Respondents as ventilated in the earlier litigation was by -passed and/or ignored despite being recognized by the Tribunal in its earlier judgment. The Tribunal considered the matter and allowed the application and quashed the panel for the second time and directed the Respondent to redraw the panel strictly in accordance with merit by following Railway Board's order dated June 19, 2009. Being aggrieved, the Petitioners approached us by filing the above petition.

(2.) We have heard Mr. L.K. Gupta, learned senior counsel appearing for the Petitioners and Mr. Alok Kumar Banerjee for the private Respondents and Mr. L.K. Chatterjee for the railways. We have also considered the judgments and orders of the Tribunal referred to above including the one impugned herein. On analysis of the facts, it reveals as follows:

(3.) If we consider paragraph 219 we would find that the said paragraph provided for fifteen marks in seniority category. The Supreme Court in the case of Ramjayaram (Supra) categorically observed that such allotment of fifteen marks giving priority to the senior candidates was liable to be set aside. Supreme Court struck down allotment of fifteen marks. The Supreme Court in Ramjayaram (Supra) observed that selection should be made primarily on the basis of overall merit. The Supreme Court, while considering so, observed that Rule 320 would have no application in deciding the issue. Pertinent to note, Rule 320 of the Railway Establishment Code prescribed the method for determination of relative seniority in an intermediate grade. Following the Apex Court decision in the case of Ramjayaram (Supra) the Punjab and Haryana High Court in an identical situation observed that merit would prevail over seniority. Special leave petition filed as against the order of the Punjab and Haryana High Court was dismissed. The Railways, to circumvent the true spirit of the decision of the Apex Court in the case of Ramjayaram (Supra), amended paragraph 219 and again gave weightage to seniority. The Railways while redrawing the second panel relied on the amended paragraph 219 which, inter alia provided that the final panel should be drawn up in order of seniority from amongst those who secured a minimum of sixty per cent marks in the professional ability and sixty per cent marks in aggregate provided that those securing a total more than eighty per cent marks would be classed as outstanding and placed at the top of the panel in order of seniority. In short, if someone gets more than eighty per cent marks he could be considered strictly on the basis of his merit and the persons getting less than eighty per cent marks would have to depend on his seniority and any one senior to him, although getting less marks in the written test and/or the other category, would supersede him by dint of his seniority. The Tribunal for the second time quashed the said panel by observing that such amended rule would not be applicable and in our view, very rightly.