W.P.(C) 3409/2014, CM APPL.7020/2014 UNION OF INDIA AND ORS. ..... Petitioners versus ARUN KUMAR ..... Respondent Appearance: Mr. V.S.R. Krishna, Spl. Counsel with Mr. Abhishek Yadav, Advocates for petitioners in both cases.

Mr. S.K. Gupta with Mr. N.N.S. Rana, Advocates for respondents in both cases.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. The Northern Railway through Union of India has approached this Court claiming to be aggrieved by an order of the Central Administrative Tribunal (hereafter "the Tribunal") dated 15.01.2013 in OA 3546/2009 and 3547/2009.

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2. The brief facts are that the applicants/respondents were holders of various feeder cadre posts such as Fitter Grade-III etc; they were promoted as Assistant Loco Pilot on 20.06.05. The Northern Railway issued an advertisement for filling up 609 posts of Loco Pilot (Goods) by way of promotions. The procedure was spelt out in Rule 215 of the Indian Railway Establishment Manual (IREM) Vol-1 which inter alia required two years' eligible service in the feeder category to be eligible for the post of Assistant Loco Pilot. It is not in dispute that the number of candidates called was three times the number of vacancies i.e., 1827 candidates were called to participate in the process. However, only 633 eligible persons were asked to appear in the selection, i.e., the written test. The applicants/respondents had secured 59.91 and 59.72 marks respectively. This was slightly below the cut off of 60% marks, which was determined as essential for appointment to the post.

3. In 2009 itself, certain applications were filed being OA Nos.1536/2009, 1665/2009 and 1817/2009, last of them being by one Mr. Ravinder Negi. That application of Mr. Negi culminated in an order requiring reconsideration. Upon being aggrieved yet again, Mr. Negi approached the Tribunal by filing OA No.2639/2009 contending that in terms of the existing policies, weightage between 5-15 marks had to be given to seniority. The Northern Railway had resisted the proceedings, contending that no such weightage could be given so as to render those who were unsuccessful in the selection process eligible for consideration for appointment. The contention of the W.P.(C) 1083/2014 & 3409/2014 Page 2 petitioner/Railways, however, was rejected by the Tribunal in its order dated 21.05.2010. The Tribunal held as follows:

"It is seen that the applicant in this case, has secured 59.95 marks in the aggregate and 69% mark for his professional ability for his record of service he was given 345 marks. The IREM prescribes a minimum of 5 marks should be awarded to the junior most person in the selection. The IREM would also say that in case there are decimals it should be upgraded to the next higher decimal. Therefore, the applicant would say in this conspectus that his mark for „record of service‟ should be treated 35 as per clause (b) and clause (f) of para 219 of IREM Vol.I. The applicant would also say that ex post facto qualification of graduationship has not been taken into account by the respondents. Even if it is to be taken for granted, initially the railways was not aware of his qualification that he is a graduate, it does not bar them from considering it when it came to their knowledge. Therefore, on a cumulative analysis it has to be held that the applicant would have received 60% qualifying mark or more which would enable him to be one among the selectees in the first selection itself. We are not doing a computing and quantification exercise as to what would have been his mark, but we hold that even going by the IREM, the minimum of 5 marks should be awarded for his seniority by treating him as junior most person who appeared in the selection and the illustration submitted by the respondents cannot override the intention of the main rule.

In view of the above discussion, we allow this O.A. and the following orders are passed.

(a) the respondents are directed to re-compute the marks of the applicant based on added factor of his graduationship and the minimum 5 marks for the seniority and he shall thus be declared as selected in the panel issued on 30.12.2005.

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(b) He shall be interpreted in the said panel in the order of seniority/merit based on such-recomputation.

(c) His promotion and other consequential benefits including notional seniority shall be granted in favour of the applicant.

(d) It is made clear that since applicant had not worked in the promotional post, the difference in pay and allowances is not payable to him."

4. The Northern Railways, in the meanwhile, had issued an order on 15.01.2009 where the select list was finalized; the respondents/original applicants felt aggrieved by this order since according to them, many of their juniors were included in the select list. They accordingly articulated this grievance by approaching the Tribunal by filing OA Nos. 3546 & 3547/2009.

5. In the initial round of litigation, the Tribunal rejected the applications holding that they were time barred. However, that order was set aside in writ proceedings by this Court. The Division Bench's order of 2012 directed the Tribunal to consider the question of limitation as well as the merits of the respondents' contentions. The same was disposed of on 30.04.2012. It was in these circumstances that the Tribunal allowed the applications on their merits.

6. Mr. V.S.R. Krishna, learned counsel appearing for the Northern Railway contends that the Tribunal fell into error in holding that the W.P.(C) 1083/2014 & 3409/2014 Page 4 previous order of 30.04.2012 had condoned the delay. It was contended that in terms of the said order, the question as to whether the respondent had approached the Tribunal after delay was kept open. Counsel also submitted that the Tribunal erred in granting the relief in the circumstances of this case, because Mr. Negi had approached it at all relevant times. It was sought to be emphasized here that, having approached the Tribunal earlier in 2005 unsuccessfully, Mr. Negi was permitted to challenge the subsequent order which he did correctly in 2009.

7. On the merits, learned counsel submitted that the question of what should be the manner of evaluation, such as weightage of seniority, is best left to the judgment of the recruiting agency. It was submitted that the marks to be granted for the purposes of weightage in respect of the seniority would vary from Railway to Railway and from selection to selection. Given these circumstances, there cannot be any hard and fast rule, much less entitlement,that such marks should be between 5-15 for the purpose of seniority weightage.

8. Learned counsel for the respondents/applicants urged that the question of correct assignment of seniority as well as the award of weightage for the purposes of selection marks was in a state of fluidity. He pointed to the order of the Tribunal pertaining to Negi's case, dated 21.05.2010. Reliance is also placed upon an order of 18.05.2010 issued by the Northern Railway seeking to revise seniority, pursuant to another order of the Tribunal made in 2008. It was emphasized that in that instance, even though partial relief was W.P.(C) 1083/2014 & 3409/2014 Page 5 granted pursuant to the Tribunal's order of 2008, an overall review of seniority was undertaken, pursuant to the selection which took place in 2005-06. In such facts situation, underlines the counsel, the Northern Railway could not insist upon application of differing and varying standards by implementing Negi's decision on the one hand and then denying weightage of at least 5 marks in their case, on the other.

9. The judgment of the Tribunal in Negi's case took into account the existing regulations and policies that had been pursued by the Northern Railway in the selections, and concluded that, for a particular selection in respect of 609 vacancies in the post of Loco Pilot (Goods), the weightage which the eligible candidates could expect for the purpose of seniority was in the band of 5-15 marks. Whilst the respondent did not approach the Tribunal till 2009, equally, this Court is alive to the fact that Negi's case itself was decided later, on 21.05.2010, and that the Northern Railway order was made on 15.01.2009. The respondents were thus justified in contending that the cause of action arose at that point of time. Concededly, the Tribunal observed that this Court had condoned the delay - and to that extent, it fell into error. However, in sum and substance, the fact remains that the Northern Railway itself did not treat the matter as closed, as evident from the order of 15.01.2010 and subsequent order of 18.05.2010 - although in the context of another revision. In both the cases, the Northern Railway revisited the concerned issue.

10. We are of the opinion that there is nothing inherently unsound in the Tribunal's concluding that for the relevant selection, i.e., of 609 W.P.(C) 1083/2014 & 3409/2014 Page 6 vacancies for Loco Pilot (Goods), seniority weightage was to be fixed in the band of 5-15 marks. It appears that the determination in Negi's case has become final; taking another view of the matter, i.e. that the Railway would be at liberty to adopt the differing standards in the same selection, is both untenable and contrary to Article 14 of the Constitution of India. Whilst the petitioner is free to pursue its own policies and adopt different criteria in respect of different posts or at different points of time (so long as such flexibility is permitted in terms of applicable law and binding rules). It certainly is not at liberty to discriminate between one and another in regard to the criteria that is to be adopted while awarding marks.

11. In this view of the matter, we are of the opinion that there is no infirmity in the Tribunal's order, warranting interference. The writ petitions are accordingly dismissed.

S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) JULY 28, 2014 /vks/ W.P.(C) 1083/2014 & 3409/2014 Page 7