P. Lakshmana Reddy, VC:— Having been aggrieved of non-inclusion of the applicant's name in the selection panel, prepared for promotion from Welfare Inspector Grade-III to Welfare Inspector Grade-II, the applicant filed the present OA challenging the selection panel dated 24.10.2007 (Annexure A-1).

2. The relevant facts in brief are as follows:

The applicant, Shri B. Raja Rao is working as Welfare Inspector, Grade-III in the South Central Railway which carries the pay scale of Rs. 5000 — 8000 since 22.2.2002 While so, on 9.11.2005, the third respondent, the Chief Personnel Officer, South Central Railway, Secunderabad issued notification dated 9.11.2005 (Annexure A-4) proposing to conduct selection to the post of Personnel Inspector Grade-I in the scale of Rs. 6500 — 10500 against 20% Limited Departmental Competitive Examination (LDCE) Quota in terms of Railway Board's letter No. E (NG) I-2005.PM1/20 dated 17.6.2005 11 vacancies were notified, out of which one reserved for SC, one reserved for ST and the remaining nine are open for all. In pursuance of the notification, the applicant and respondent No. 5, along with several other departmental candidates who are in the pay scale of 5000 — 8000 and also of 5500 — 9000 applied for competitive examination. The method of selection as per the notification is by way of written examination and verification of service records. Written examination is for 85 marks and for service records 15 marks. The pass marks prescribed in the written examination is 60%, viz. 51 out of 85. The written examination was conducted on 21.4.2007 and the result of written examination was announced on 10.8.2007 The applicant got 60% along with nine others in the written examination. Out of those 10, there were two SC employees including the applicant, B. Raja Rao, and the remaining eight belong to unreserved category. The 5th respondent, Shri N. Subhas Silas who belong to scheduled caste category did not get 60%, in the written examination and therefore, his name is not shown in the first category of ten but shown against the second category who are qualified under relaxed standard by securing 50% and above and below 60%. One ST candidate is also shown under the second category, viz. those who are qualified under relaxed standard. Thereafter, service records were verified of all the 12 candidates and prepared the final select list. In that final select list, the scheduled caste candidate by name, A.J.V Prakash Kumar, who also got 60% in the written examination and who came within first nine as per merit list was adjusted against UR vacancy and N. Subhas Silas who did not get 60% qualifying marks in the written examination was adjusted against the SC reserved vacancy leaving out B. Raja Rao, the applicant herein who secured 60% marks in the written examination and qualified himself without applying relaxation standard, on the ground that the N. Subhas Silas got 62.6% maks in the aggregate whereas B. Raja Rao got only 60.5% marks in the aggregate (marks in the written examination plus marks for service records.)

3. Aggrieved by the same, B. Raja Rao, the applicant filed the present OA contending that the action of the respondents in considering the candidature of R-5 and empanelling him is in violation of Railway Board's instructions and IREM provision and therefore, their action is arbitrary, illegal and is liable to be set aside. The contention of the applicant is that when there is already a candidate who secured 60% marks in the aggregate for adjustment against the only one SC vacancy, there is no need for assessing the service record of the failed SC candidate and to arrive at the aggregate and then compare the aggregate marks of the failed candidate with the aggregate marks of passed candidate, i.e the applicant. According to the applicant, a failed SC candidate in the written examination cannot be preferred over a SC candidate who qualified himself on general standard. The respondents ought to have prepared a panel at the first instance including only the names of the candidates who secured minimum 60% marks in aggregate on general standard and if reserved category candidate is available after adjusting the candidates against U.R vacancies in the order of merit, available reserved category candidate shall be adjusted against the reserved category post and that in the instant case, two SC candidates secured 60% marks not only in the written examination, but also in the aggregate and out of them one SC candidate was adjusted against one of the nine UR vacancies on the basis of marks obtained in the aggregate and the other SC candidate, who is the applicant herein could not be adjusted against UR vacancies as he could not find place in the first nine. Therefore, the applicant ought to have been adjusted against the SC reserved vacancy as the applicant belongs to SC category. The question of considering the service record of SC candidates who did not qualify on the general standard in the written examination does not arise in this case as there is no more reserved SC vacancy left after adjusting the qualified SC candidates on the normal standards. The applicant in support of his contentions, relied upon Serial Circular No. 107/2005 dated 17.6.2005 (Annexure A-3), para 219 (h) of IREM, Vol. I (Annexure A-9), Railway Board's instructions in RBE No. 152/1990 dated 30.6.99 (Annexure A-11) (Serial Circular No. 195/1999 dated 6.8.99, Serial Circular No. 181/2001 dated 5.10.2001 (Annexure A-12) and also the Serial Circular No. 116/2003 (Annexure (A-10).

4. The respondents contested the application and filed reply stating that the final select panel was prepared in accordance with the procedure prescribed for preparation of the panel for selection to the post of Personnel Inspector Grade-I through LDCE. The respondents pleaded that the Railway Board introduced LDCE for recruitment to the extent of 20 per cent of posts in lieu of direct recruitment for certain categories, including Personnel Inspector Grade-I in the proceedings issued in the letter dated 17.6.2005 (Annexure R-I). As per the procedure contemplated, the selection shall be entirely based on merit with reference to marks obtained by the candidates in the written test and service record. While 85% weightage is to be given to the performance in the written examination, 15% weightage is to be given to service record subject to usual relaxation for SC and ST. In other words, SC & ST candidates securing more than 50% marks but less than 60% marks, both in the written test and also in the aggregate are required to be considered against SC/ST quota. Such of the qualified candidates in written examination was declared on 10.8.2007 (Annexure R-II) under three different heads, namely, Part-I — candidates passed with 60% marks; Part-II — SC/ST candidates passed with relaxed standard, i.e above 50% and below 60%; and Part-III — SC/ST candidates who secured more than 20% and below 50%. The applicant was declared qualified in the written examination as he secured 60% marks and his name finds place at Sl. No. 9 of Part-I The respondent No. 5, Shri N. Subhas Silas, is one of the candidates who was declared qualified in the written examination under relaxed standard having secured 58.5% marks and hence placed at Sl. No. 1 of Part-II. After the final assessment, taking into consideration the marks secured in the written examination and the record of service based on the aggregate marks obtained both in the written examination and record of service, the panel was issued in proceedings dated 24.10.2007 (Annexure R-3) in the order of merit. As per the rules governing the selection, 9 candidates who are in the zone of consideration against 9 UR vacancies having secured more than 60% marks in aggregate are arranged in the order of merit as the applicant was in the 10th position in the order of merit, having secured 60.5% marks in the aggregate could not be placed on the panel against UR vacancy and hence he was considered against SC vacancy along with Shri Subhas Silas, respondent No. 5 who secured 62.6% in aggregate (written examination plus record of service), the panel (Annexure R-3) has to be prepared arranging the names in the order of merit, R-5 had to be preferred to be placed in the panel against SC point over the applicant as per the rules governing selection. Hence, the name of the applicant did not figure in the final panel (Annexure R-3). The respondents' contention is that when the marks obtained in the written examination and the marks obtained for record of service are clubbed, Shri Subhas Silas got 62.6% marks whereas the applicant got only 60.5% marks and therefore, Shri Subhas Silas was preferred over the applicant for adjustment against the SC reserved vacancy and the said adjustment is in accordance with the rules.

5. The respondents pleaded that the Railway Board in their letter dated 27.8.2002 (Annexure R-IV) indicated that SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications, are to be adjusted against the unreserved vacancies and the said instructions were further amplified through Railway Board's letter dated 20.6.2003 (Annexure R-5) with example taking 10 vacancies out of which 6 vacancies are unreserved and 4 vacancies are reserved. The results are declared in three parts and the said bifurcation is warranted as it is not known until the final assessment is made and marks of record of service are awarded and aggregate marks are arrived at, as to who are those SC/ST candidates selected in Part-I will be adjusted against UR vacancies in the order of merit securing 60% marks and above in aggregate, entitling themselves to be considered against UR vacancies. After considering the above, if any of the SC/ST candidates are left over, to be considered against SC/ST quota, the chance of empanelment caused to left over SC/ST candidates selected either on general standard or on relaxed standard, i.e on merit. The respondents pleaded that restriction of minimum 60% marks in the written examination is not applicable to the SC/ST candidates for considering them for assessment of record of service in lieu of the specific relaxation granted to SC/ST candidates in non-safety categories, as per the relaxations and concessions admissible to SC & ST candidates in case of promotion by way of selection (Annexure R-VI). The respondents pleaded that the empanelment is based on the aggregate marks and the empanelment of R-5 is in order and in conformity with the rules governing the selection in question. It is further pleaded that the instructions that candidate who got less than 60% marks in the written examination should not be empanelled, applies only to UR candidates and those instructions are not applicable to the SC/ST candidates in view of the specific relaxation granted to them. Therefore, para 219 (h) of IREM is out of context as it does not speak about the relaxation given to SC/ST candidates in promotion. In respect of the letter dated 30.6.1999 relied upon by the applicant, the respondents pleaded that it is no more applicable to the facts of this case as the said letter has been superseded by proceedings issued by the Railway Board in letter dated 20.6.2003 (Annexure R-V). According to respondents, the applicant relied on the instructions which were issued prior to issue of Railway Board's letter dated 7.8.2002 (Annexure R-IV) and Board's letter dated 20.6.2003 (Annexure R-V) and the same are not relevant for the impugned selection. The application is devoid of merit and hence it is liable to be dismissed.

6. During the course of hearing, the learned counsel for the applicant reiterated the contentions raised in the application. He submitted that there are specific instructions given by the Railway Board as to how the panel/select list is to be prepared for filling up the promotion posts reserved for SC/ST candidates by way of selection. The learned counsel invited our attention to Railway Board's letter No. 83-E (SCT) 42/1 dated 14th April 1983 wherein it is stated as follows:

“12.9 Where a junior Scheduled Caste/Scheduled Tribe employee qualifies in the selection of non-safety categories as per general standards laid down i.e, 60 per cent marks and a senior Scheduled Caste/Scheduled Tribe employee passes with marks of relaxed standard i.e, 50 per cent for placement against reserved vacancy, the selection committee should first draw a list of candidates who can be empanelled by applying the general standard for qualifying a selection and empanelment. This list should be checked up whether this contains the required number of candidates belonging to Scheduled Caste and Scheduled Tribe as per the 40-point roster. In case of deficiency, the same should be made good by including the other reserved candidates who pass by applying the relaxed standards.

7. He also invited our attention to the Railway Board's letter No. 82-E (SCT) 41/6 dated 15.11.1983 wherein it is stated that the scheme of promoting best amongst the failed SC/ST candidates should be discontinued in promotions to Group ‘B’ posts through LDCEs and that the essence of LDCEs is to recognize and to award talent.

8. The learned counsel invited our attention to another Circular No. RBE No. 71/89 dated 8.3.89 wherein the letter dated 14.4.83 was reiterated and also clarified that if the number of SC/ST persons who qualified by the general standard of fitness is short of the number required to fill up the reserved quotas, the deficiency in the reserved quota should be made good by the SC/ST candidates who qualify by applying the relaxed standards.

9. Further, he relied on PB Circular No. 105/96 wherein correct procedure for empanelment in selection/non-selection post have been given after pointing out discrepancies wherein instructions contained in Railway Board's letter No. 83-E (SCT) 42/1 dated 14.4.83 and also para 3.1 of Annexure I of Railway Board letter No. 89-E (SCT)I/49/5 (Pt) dated 16.6.92 have been relied upon to answer the discrepancies quoted therein for guidance. The learned counsel invited our attention to the clarifications given therein under the caption “correct procedure” in para (i) and (v) wherein it is stated that the selection committee should first draw the list of candidates who can be empanelled as per general standard of fitness and thereafter the list should be checked up whether it contains the required number of SC/ST to meet the full requirements for the SC/ST points reserved and only in case of deficiency to meet the full requirements of reserved points from such qualified candidates, the SC/ST candidates who are qualified with the relaxation of standards are permissible to be included to make up the shortage.

10. The learned counsel also drawn our attention to Serial Circular No. 195/1999 dated 6.8.99 whereunder the Railway Board's letter No. 97-E (SCT) I/125-24 dated 30.6.99 is published for information, guidance and necessary action. In the said letter, earlier letters of the Railway Board's dated 14.4.83, 2.6.89, 21.9.90, 21.8.97 and 2.9.98 which were circulated as SC No. 82/85, 113/89, 144/90, 156/97 and 243/98 respectively are referred. Under this letter dated 30.6.99, instructions are given on the subject “determination of status of SCs/STs who got promoted without relaxation”. While dealing with that subject, the clarification given in Board's letter dated 14.4.83 (referred supra) is reiterated stating that the earlier instructions given in the letter dated 14.4.83 continues to be applicable. Besides reiterating the clarifications given in the letter dated 14.4.83, the Railway Board reiterated the instructions contained in para 4 of Railway Board's letter No. 90-E (SCT)-1/25/3 dated 21.1.90 wherein it has been decided that in promotions to posts classified as selection post those SC/ST candidates who qualify in promotion tests with general standards should be empanelled first and only in the case of deficiency the reserved quota should be adjusted by such candidates who have qualified with relaxed norms, i.e excluding the marks of seniority in the aggregate. Relying on those two letters, the Railway Board has issued instructions that those SCs/STs who have qualified without relaxation will be taken against the reserved posts of promotion category.

11. He invited our attention to another Railway Board's letter No. 89-E (SCT) I/49/5 (Pt.) dated 16.6.92 where under “Subject:— Court Judgement/Orders — Promotion of Scheduled Castes/Scheduled Tribes against reserved vacancies” was dealt with. Detailed instructions were given by the Railway Board basing on the directions given by the Full Bench of Central Administrative Tribunal, Hyderabad Bench which relied upon the orders of the Supreme Court in J.C Malik v. Union of India. The learned counsel invited our attention to para 2.1 and para 3.1 wherein the subjects, Selection and Formation of Panel/Select List have been dealt with.

12. The learned counsel further invited our attention to Serial Circular No. 181/2001 dated 5.10.2001 whereunder the procedure for empanelment for non-safety posts is given. The relevant portion of the said circular reads as follows:

“Non-Safety Post

i) 60% in professional ability and in total

ii) 60% in professional ability and 60% in total excluding seniority marks, i.e 51 out of 85. if sufficient number is not coming as per (i).

iii) 50% in professional ability and 50% in total, if sufficient number is not coming as per (i)(ii).

iv) 50% in professional ability and 50% in total excluding marks for seniority i.e 42.5 out of 85, if sufficient number is not coming as per (i), (ii) & (iii).

v) If sufficient number of SC/ST employees are not forthcoming as per the order from (i) to (iv) above, then such of those SC/ST employees who secure 20% under each heading will be recommended for adhoc promotion against the reserved points and imparting in-service training for 6 months.

The criteria for choosing the best among the failed is based upon the total marks secured by SC/ST employees.

As regards inter-se position amongst those who qualify on general standard vis-a-vis relaxed standard, the extant orders issued vide Serial Circular Nos. 93/92 and 62/2000 are to be followed”.

13. The learned counsel invited our attention to Serial Circular No. 116/2003 also on which the respondents placed much reliance. The learned counsel submitted that in the said circular, it is nowhere stated that SC/ST candidate who is qualified for empanelment on general standard shall not be preferred over an SC/ST candidate qualified for empanelment on applying relaxed standards. To answer a doubt raised by some Zonal Railways as to how SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications are to be adjusted in the post based roster. In the circular, it is clarified that in selection posts, SC/ST candidates who are selected by applying general standards and whose names in the select list appear within the number of unreserved vacancies are to be treated as selected on their own merit and the Railway Board clarified the said point by giving an example also. But, even in that example, the Railway Board clarified that after adjusting the SC/ST candidates whose names are found in the list within the number of unreserved vacancies, the SC/ST candidates selected for the reserved vacancies whether selected on general standard or by giving relaxation/concessions as per existing instructions on the subject shall be adjusted against reserved vacancies. Relying on the sentence “as per existing instructions on the subject”, the learned counsel contended that the earlier instructions in the above quoted circulars are to be followed for adjustment against the reserved vacancies. He submitted that in the said circular, no instructions have been given as to whether an SC/ST candidate who is qualified for empanelment on general standard can be ignored and an SC/ST candidate who qualified for empanelment on relaxed standards be preferred for adjusting against a reserved vacancy and therefore, this circular does not in any way justify the method adopted by the respondents for impugned selection.

14. The learned counsel further invited our attention to the Railway Board's letter dated 17.6.2005 (Annexure A-3) whereunder Ministry of Railways decided to do away with the direct recruitment introduction in the category of Personnel Inspector scale of Rs. 6500 — 10500 and in lieu thereof introduced LDCE quota to the extent of 20% posts in this category. The procedure for holding LDCE is given under the head “the procedure for holding LDCE”. As seen from para 4 given under the head “procedure for holding LDCE”, it is clearly stated that selection shall be based entirely on merit with reference to marks obtained by the candidates in the written examination and service records and further the service records of only those candidates who secured minimum of 60% marks in the written examination shall be assessed and as in the instant case, the 5th respondent did not obtain 60% marks, i.e 51 out of 85 in the written examination, the question of verification of his service records and awarding marks to arrive at an aggregate arise only when there are no SC candidate who secured 60% marks in the aggregate to adjust against the reserved SC vacancy and that as in the instant case, the applicant who belong to SC category secured minimum 60% marks in the written examination and also secured 60% marks in the aggregate, available for adjustment to the lone SC vacancy, the question of assessing the service records of R-5 and to arrive at the aggregate marks does not at all arise and the respondents grossly erred in assessing the service records of R-5 and in arriving at the aggregate marks. He submitted that even otherwise, at any rate, 5th respondent, who could not secure minimum pass qualifying marks in the written examination cannot be preferred against the applicant who secured qualifying marks not only in the written examination but also in the aggregate.

15. The learned counsel further invited our attention to para 219 (h) of IREM Vol. I (Annexure A-9) wherein it is stated that the importance of an adequate standard of professional ability and capacity to do the job must be kept in mind and the candidate who does not secure 60% marks in professional ability shall not be placed on the panel even if on the total marks secured, he qualifies for a place. Basing on the IREM provision, the learned counsel submitted that the Railway Board all through is giving priority to the professional ability, viz. written examination and that is the reason why minimum marks are being prescribed for the written examination and also to impose a condition precedent that one should secure 60% marks in the written examination to be eligible to be called for either viva voce or assessment of service records, as the case may be, in the case of promotion by way of selection to a selection post. He submitted that the respondents, in violation of procedure prescribed, failed to adjust the applicant against the reserved vacancy after adjusting the SC candidate who came on his own merit within the first 9 reserved vacancies against UR vacancy leaving the sole reserved vacancy to be adjusted by an SC candidate who qualified to be empaneled without observing any relaxed standard and hence the impugned orders are liable to set aside and directions are to be given to respondents to revise the final selection panel and to include the name of the applicant in the select panel.

16. On the other hand, the learned standing counsel for the Railways submitted that the several circulars relied upon by the applicant have been superseded by the latest Serial Circular No. 152/2002 dated 27.8.2002 and Serial Circular No. 116/2003 dated 8.7.2003 He contended that as seen from the Serial Circular No. 107/2005 dated 8.7.2005 (Annexure R-I), the selection shall be based entirely on merit and the said merit shall be assessed only after taking into consideration the aggregate marks obtained both in the written examination and the service records and that the 5th respondent SC candidate obtained 62.5% marks in aggregate whereas the applicant got only 60.5% and therefore, the 5th respondent SC candidate is found meritorious than the applicant and adjusted the 5th respondent against the reserved SC vacancy and there is no irregularity or illegality in preferring the 5th respondent over the applicant for adjusting against the reserved SC vacancy. He further submitted that as per the latest serial circular No. 116/2003, the SC/ST candidate selected for the reserved vacancies whether selected on general standard or by giving relaxation shall be adjusted against reserved vacancies and that as there was one SC vacancy left after adjusting one SC candidate who secured 69.4% marks and stood third in the panel, against UR vacancy, the aggregate marks obtained by the other candidates have to be arrived at to adjust the meritorious SC candidate against the reserved vacancy and for the purpose of arriving at the aggregate marks, the service records of the 5th respondent was assessed and on such assessment, the 5th respondent got more aggregate marks than the applicant and hence the applicant could not be adjusted against the reserved SC vacancy. He submitted that the selection was made strictly in accordance with the procedure prescribed. The learned Senior Standing Counsel invited our attention to Annexure R-VI, which is an extract of Chapter XII dealing with relaxations and concessions admissible to schedule castes and scheduled tribes in case of promotion/reversion/retrenchment. Relying on the said document, the learned counsel submitted that though the 5th respondent did not secure 60% marks in the written examination, his service record was assessed to arrive at the aggregate marks, as the 5th respondent got more than 50% and below 60% marks in the written examination. The learned counsel submitted that under Annexure R-VIII dated 7.11.2007, the applicant's representation dated 30.10.2007 was rejected informing the applicant that the selection has been finalised as per the guidelines given in Serial Circular No. 107/2005 (Annexure R-I) and also in terms of SC 116/2003, and the representation was rightly rejected for the reasons set out therein, and there is no need for interference by this Tribunal in the impugned selection.

17. The points that arise for consideration in this application are:

(i) Whether the respondents have followed the procedure prescribed in Serial Circular No. 107/2005 dated 8.7.2005?

(ii) Whether the impugned selection is not in accordance with law?

(iii) Whether the applicant is entitled to be selected for promotion to the post of Staff & Welfare Inspector Grade-I?

(iv) To what result?

18. Points (i) to (iii):

It is not disputed that the applicant, Shri B. Raja Rao who belong to SC community secured the prescribed minimum 60% marks in the written examination whereas R-5 failed to secure the minimum marks in the written examination. It is also not disputed that the name of the applicant find place in Part-I of the panel dated 10.8.2007 (Annexure R-II) whereas the name of the unofficial respondent, Shri N. Subhas Silas (R-5) who also belong to SC community does not find place in Part-I of the said panel but find place only in Part-II which contains the names of those who qualified under relaxed standards by securing 50% and above but below 60%. As seen from the final select list dated 24.10.2007 (Annexure R-III), the name of the applicant does not find place against the SC reserved vacancy but the name of R-5 find place against the said SC reserved vacancy. According to the respondents, they have prepared the final panel in accordance with the instructions contained in Railway Board's letter dated 20.6.2003 in Serial Circular No. 116/2003 dated 8.7.2003 (Annexure R-V) and also the Railway Board's letter dated 7.8.2002 published in Serial Circular No. 152/2002 dated 27.8.2002 (Annexure R-IV) and that as R-5 secured more marks in aggregate than the applicant, R-5 is adjusted against the lone SC vacancy and the name of the applicant could not be included in the final select list, and selection was made in accordance with the instructions given in the above said circulars. So, it has to be seen, whether the said contentions of the respondents are tenable. As seen from Serial Circular No. 116/2003 dated 8.7.2003, it was issued in order to clarify the doubts raised by some of the Zonal Railways regarding Part-I of the Railway Board's letter dated 7.8.2002 published in Serial Circular No. 152/2002. The said circular (Annexure R-IV) contained instructions in respect of the subject “Reservation in promotion - Treatment of SC/ST candidates promoted on their own merit”. In the said circular, it is mentioned that the DOPT vide OM dated 11.7.2002 considered the references from various Ministries regarding adjustment of SC/ST candidates promoted on their own merit in post based reservation roster and clarified as under:

“The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points on the reservation roster. They will be adjusted against unreserved points.”

In SC 116/2003 (Annexure R-V), it is stated that some of the Zonal Railways raised doubts regarding the above quoted para 1 of (Annexure R-IV) and sought a categorical clarification as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualification are to be adjusted in the post based roster. To clear the doubt, the Railway Board clarified by way of Serial Circular No. 116/2003 that in selection post, SC/ST candidates who are selected by applying general standards and whose names in the select list/panel appear within the number of unreserved vacancies are to be treated as selected on their own merit. The said circular contained an example also to further clarify the same. The said example is that if there are total 10 vacancies for which a select panel is to be prepared, out of those, 6 are unreserved and 4 are reserved for SCs/STs, the first 6 candidates in the select list who have been selected by applying the general standards will be adjusted against unreserved vacancies irrespective of the fact that whether some of them belong to SC/ST category, and the SC/ST candidates for remaining 4 vacancies whether selected on general standard or by giving relaxation/concessions as per the existing instructions on the subject, shall be adjusted against reserved vacancies. In neither of those letters, it is stated that the SC/ST candidates selected on general standard need not be given any preference over an SC/ST candidate who finds place in the panel applying relaxation standards. These two circulars dealt with the treatment of SC/ST candidates promoted on their own merit as is evident from the subject mentioned in both the circulars. As in the circular No. 152/2002, it is not stated as to who can be treated as SC/ST candidates ‘selected on their own merit’, it is clarified in the Serial Circular No. 116/2003, by stating that those SC/ST candidates who are not only selected by applying the general standard but also their names in the select list appeared within the number of unreserved vacancies, are to be treated as ‘selected on their own merit’. It is further clarified therein that such candidates who have been selected on their own merit shall be adjusted against the unreserved post and not against reserved posts. Thus, the said circulars dealt only with those SC/ST candidates who are ‘selected on their own merit’ and how they are to be adjusted. Those circulars do not deal with the status of SC/ST candidates qualified on general standards vis-a-vis SC/ST candidates qualified on applying the relaxed standards. But the respondents relied on the following sentences used in the example “SC/ST candidates selected for remaining 4 reserved vacancies whether selected on general standards or by giving relaxation as per existing instructions on the subject shall be adjusted against the reserved vacancies”. These sentences shall not be interpreted in the manner that an SC/ST candidate selected on general standards shall be treated on par with the SC/ST candidate who is qualified applying the relaxed standards.

19. Further, it does not say that the reserved category candidate who is qualified for empanelment on general standard without applying any relaxed standard shall not be adjusted against the remaining reserved vacancies and such candidate shall be treated on par with reserved category candidate who could not be qualified without applying relaxed standard. Those words are used only to clarify that not only the candidates selected on general standard but also those selected on relaxed standard are entitled to be adjusted against the remaining 4 reserved vacancies in that example. The said example would have come to the rescue of R-5, if any more reserved vacancies are available after adjusting the reserved candidate who got selected on general standard “applicant in this case” against the first available reserved vacancy. In fact, Serial Circular No. 116/2003 was not issued to give any fresh instructions to decide about the inter se status among those who are selected on general standard and those who are selected on relaxed standard, as that was not the doubt/dispute referred to the Railway Board which necessitated the issuance of circular of clarification. So far as the inter se status among such candidates is concerned, the Railway Board directed to follow existing instructions on the subject. Further, at the end of the circular, it is stated that the principles laid down in the Railway Board's letter dated 7.8.2002 should be made applicable in all the promotions held after its issue. The said Railway Board's letter dated 7.8.2002 is published by way of Serial Circular No. 152/2002 dated 27.8.2002 (Annexure R-IV). The subject dealt in this circular is “reservation and promotion — treatment of SC/ST candidates promoted on their own merit”. This circular does not contain any instructions regarding the status of reserved candidates qualified on general standard vis-a-vis reserved candidates qualified on relaxed standard. It deals with reserved candidates appointed by promotion on their own merit as clarified in Serial Circular No. 116/2003. Here, in the instant case, the dispute is between two reserved category candidates, one qualified on general standard (applicant) and the other qualified on relaxed standard (R-5). Neither the applicant nor R-5 come under the category “selected on their own merit”. So, the instructions given in SC 152/2002 as clarified in SC 116/2003 are not relevant for the purpose of resolving the issue concerned in this case.

20. The instructions given by the Railway Board in its letters dated 14.4.83 (SC 82/1985); 2.6.89 (SC 113/1989); 21.9.90 (SC 144/1990) and 2.9.98 (SC 243/1998) which are reiterated in SC No. 195/1999 dated 6.8.99 are relevant for resolving the issue herein, but unfortunately, in SC No. 116/2003, at the end, it is mentioned that the clarifications issued vide Railway Board's letter dated 30.6.99 (SC 195/99 dated 6.8.99) are superseded by its letter dated 7.8.2000, though in fact, the said letter dated 7.8.2002 does not state so and though the issues dealt with in the letter dated 30.6.99 have not been dealt with in the Railway Board's letter dated 7.8.2002 Even in the Serial Circular No. 116/2003, the issues dealt with in the various letters referred in the letter dated 30.6.99 have not been dealt with. Therefore, it appears that those words relating to supersession of earlier Railway Board's letter dated 30.6.99 were made inadvertently.

21. Be that as it may, it has to be seen as to what the “existing instructions on the subject” referred in SC No. 116/2003 to deal with the issue of inter se dispute among two SC candidates in this case. The respondents could not produce any instructions issued by the Railway Board relating to the procedure to be adopted for preparation of panel in the case of promotion by way of selection in respect of reserved category employees. The respondents pleaded that they prepared the panel in accordance with the instructions contained in SC No. 152/2002 and SC No. 116/2003. We have found supra that those two circulars do not contain any instructions relating to the procedure for formation of panel for promotions to reserved category posts by way of selection. On the other hand, the applicant's counsel brought to our notice the Railway Board's RBE No. 97/1992 (letter No. 89-E (SCT) I/49/5)Pt.) dated 16.6.92 wherein the Railway Board gave detailed instructions based on the Court's judgement/orders under the caption “Subject:— Court Judgement/Orders — Promotion of Schedule Castes/Scheduled Tribes against reserved vacancies”. As seen from that letter, those instructions were issued keeping in view the interim order passed by the Supreme Court in J.C Malik v. Union of India as interpreted by the Full Bench of the CAT, Hyderabad Bench in para 50 of its order dated 27.2.1992 In this RBE 97/92 detailed procedure is indicated in the enclosed Annexure-I in supersession of their earlier related instructions/clarifications. Para 3.1 of the said Annexure ABE 97/1992 deal with formation of panel for promotion of reserved category candidates by way of selection. It is useful to extract para 3 of this Annexure for better appreciation and it reads as follows:—

“3. Formation of Panel/Selection List:

3.1 By holding Selection and forming a panel:

i) The panel of candidates may be formed as per existing procedure. In non-safety categories in case adequate number of SC/ST candidates are not available as per general merit in the panel to fill the reserved posts, additional SC/ST candidates to the extent of deficiency may be placed on the panel applying the specified relaxed standard, and if still the reserved quota unfilled, further SC/ST candidates may be considered for ad hoc promotion under the best amongst the failed policy.

ii) It is also clarified that SC/ST candidates who find place in the panel on relaxed norms or under the best amongst failed policy should be placed below those who have qualified with the general standard.

3.2 Non-Safety/Seniority-cum-suitability method for forming a Select List:

The same procedure, as at S. No. 3.1 above, may be followed, mutatis mutandis.”

As seen from the above para 3.1 (i), the Railway Board made it crystal clear that in non-safety category posts, only when adequate number of SC/ST candidates are not available, as per general merit in the panel to fill the reserved post, additional SC/ST candidates to the extent of deficiency is to be placed in the panel applying specified relaxed standard.

22. So, it has to be seen whether in the instant case, adequate number of SC/ST candidates are not available as per general merit in the panel to fill up the reserved post. For this purpose, it has to be seen as to what is the general merit. In this regard Serial Circular No. 107/2005 dated 8.7.2005 filed as Annexure R-I along with reply in this case is relevant, as it is the circular under which LDCE quota is introduced in the category of Personnel Inspector in the pay scale of Rs. 6500 — 10500 in lieu of 20% direct recruitment for the first time and it is in view of this circular, the notification concerned in this case was issued. Para 3 of this circular contained the eligibility criteria and the procedure for holding LDCE. Sub-para (iv) under the head “Procedure for holding LDCE is relevant and it reads as follows:—

“iv) The selection shall be based entirely on merit with reference to marks obtained by the candidates in the written examination and service records. Subject to usual relaxation for SC/ST staff those securing less than 60% in the aggregate will not be considered eligible for inclusion in the panel. Further, the service records of only those candidates who secure a minimum of 60% marks in the written examination shall be assessed.”

23. Basing on this circular, the respondents at several places in their reply pleaded that it is only the aggregate marks that decide the empanelment and not on the basis of marks obtained in the written examination alone. At the top of page 4 of the reply, it is stated as follows:—

“As per rules governing the selection, the selection shall be entirely based on merit with reference to marks obtained by the candidates in the written examination and service records. While 85% weightage is to be given to the performance in the written examination, 15% weightage has to be given for service records subject to the usual relaxation applicable to SC/ST staff.”

In order to explain the publication of results, on 10.8.2007 (Annexure R-II), in three different parts, I, II, III, at the end of the page 4 of the reply it is stated as follows:

“This bifurcation is warranted as it is not known until the final assessment is made and marks for record of service are awarded and aggregate marks are arrived at, who are those SC/ST candidates selected in Part-I will be adjusted against UR in the order of merit securing 60% and above above on aggregate, entitling themselves to be considered against UR vacancy. After considering the above if any of the SC/ST candidates are left over to be considered against SC/ST quota, the chance of empanelment goes to left over SC/ST candidates selected either on general standard or on relaxed standards or best among the failed based on the aggregate marks i.e, on merit.”

24. According to the respondents' reply, merit of the candidate is to be judged only on the basis of aggregate marks and not on the basis of the marks obtained in the written examination, and that the candidates who secured 60% marks, i.e 51 out of 85 in the written examination cannot be given any preference over the candidate who could not get the prescribed 60% marks in the written examination provided the latter get more marks in the aggregate. The respondents have forgotten to note the last sentence in (iv) of para 3 under the head procedure for holding LDCE which reads as follows:—

“Further, the service record of only those candidates who secured a minimum of 60% marks in the written examination shall be assessed”

It shows the importance given to the professional ability, viz. written examination. The words, ‘subject to relaxation’ is not added to this sentence. So, it is clear that the general standard prescribed is for securing minimum 60% marks in the written examination and also 60% marks in aggregate (written examination plus marks secured for record of service). That is the reason why the name of the applicant who secured 60% both in the written examination and also in the aggregate finds place in Part-I of the panel dated 7.8.2007 whereas the name of R-5 who could not secure 60% minimum marks in the written examination finds place in part-II in Annexure R-II panel dated 10.8.2007, though R-5 secured more aggregate marks than the applicant. In the final select panel dated 24.10.2007 (Annexure R-III), the name of the applicant who is qualified on general standard is excluded and the name of R-5 who is qualified on relaxed standard is included on the ground that R-5 secured more marks in aggregate. If the contention of the respondents that the merit is to be judged only on the basis of aggregate marks, is accepted, and the aggregate marks obtained by all the candidates are taken into consideration for preparation of select list in the order of merit, the 5th respondent who got 62.6% in aggregate, shall be placed at 9 in the panel and he has to be adjusted against 9th UR vacancy and P. Narayana, UR candidate who got 62.5% in aggregate shall not find place in the final select panel, as there are only 9 UR vacancies, and in such case, the applicant who got 60.5% in aggregate and who belong to SC shall be adjusted against SC vacancy as there is no other SC candidate who got more aggregate marks than the applicant. In that event also, the applicant is entitled to the relief prayed for in this application. However, we are unable to accept such contention of the respondents.

25. As per the procedure prescribed for holding LDCE in the Railway Board's letter dated 17.6.2005, the service records of only those candidates who secured a minimum of 60% marks in the written examination are to be assessed. There is no relaxation here. In other words, there is no compromise in respect of professional ability at this stage. Those securing less than 60% in the aggregate (written plus service record) shall not be considered eligible for inclusion in the panel subject to usual relaxation for SC/ST staff. Thus, the relaxation is to be applied only at the stage of considering the eligibility for inclusion in the panel. For example, SC candidates who secured minimum 60% marks in the written examination, i.e 51 out of 85 secured less than 9 in the assessment of service record and thus could not reach the standard target of 60%, aggregate, only then the relaxation is to be applied. Because the words ‘subject to usual relaxation and concessions for SC/ST staff’ is used in the second sentence of para 3 (iv) under the head procedure for holding LDCE and not added to the third sentence wherein it is stated that the service records of only those candidates who secured a minimum of 60% marks in the written examination shall be assessed. The said words were used only while referring to aggregate marks. Obviously, the Railway Board wanted to give preference to marks secured in the written examination, viz. professional ability. It is in consonance with the explicit provision at para 219 (h) of IREM wherein it is stated that the importance of an adequate standard of professional ability and capacity to do the job must be kept in mind and a candidate who does not secure 60% marks in professional ability shall not be placed on the panel if on the total marks secured he qualifies for a place. But the contention of the respondents is that the said third sentence in para 3 (iv) of Serial Circular No. 107/2005 is applicable only to the general candidates and not to SC/ST candidates. There is no basis for such interpretation. The counsel for the respondents contended that if the relaxation is not made applicable to the said third sentence, the relaxation mentioned in the second sentence becomes redundant. We are unable to agree with this contention because the words “subject to usual relaxation for SC/ST staff” used in the second sentence will be made applicable to those who secured 60% in the written examination but could not secure 60% in the aggregate and in such cases, the said relaxation is applicable.

26. At any rate, the SC/ST candidate who could not secure 60% minimum marks in the written examination and thereby could not find place in part-I of the list cannot be preferred over an SC candidate who secured 60% marks not only in the written examination but also in the aggregate, for adjusting against a reserved vacancy. Further, the respondents in this case adopted two different criteria for filling up the same selection post by way of promotion, one criteria for filling up unreserved vacancies and the other for filling up reserved vacancies. According to the respondents, the criteria for filling up the unreserved post is different from criteria for filling up the reserved post. According to them for selection of candidates to the unreserved post, criteria is the aggregate marks of only the candidates who secured 60% marks in the written examination in the order of merit and the criteria for selection of candidates for the reserved post is the aggregate marks of all the SC/ST candidates, including those who could not secure 60% marks in the written examination. The respondents considered the aggregate marks of only the persons who secured 60% marks in the written examination and to place the names in part-I of the list dated 10.8.2007 (Annexure R-II) and did not consider the aggregate marks of those who could not secure 60% marks in the written examination. Because if the aggregate marks had been taken into consideration of all those who secured places in part-I and part-II of the list dated 10.8.2007 and arrange them in the order of merit, R-5 though belong to scheduled caste would find place in No. 9, i.e within the 9 unreserved vacancies and in such case, P. Narayana who is now adjusted against 9th unreserved vacancy should have been eliminated from the final list as observed supra. But the respondents did not eliminate P. Narayana from the final list, obviously, taking into consideration the aggregate marks of only those who secured 60% marks in the written examination. When, in a competition among the reserved category candidate (R-5) and the unreserved category candidate (P. Narayana) for an unreserved post, unreserved candidate who secured less aggregate marks than R-5 is preferred over R-5 for the sole reason that R-5 could not get 60% marks in the written examination, it is rather ridiculous to say that in a competition among two reserved category candidates (applicant and R-5 in this case) against one reserved vacancy, the applicant cannot be preferred over R-5 for the same reason of failure of R-5 to secure 60% marks in the written examination, for adjusting against SC reserved vacancy. No such different criteria can be adopted for unreserved vacancy and reserved vacancy as the reserved category candidates are entitled to compete for unreserved category post also, as ‘unreserved’ means open for all including those who belong to reserved categories. Therefore, in our considered view, a peculiar method has been adopted by the respondents while preparing the final select list dated 24.10.2007 (Annexure R-III) without any basis and without following the existing instructions contained in RBE No. 97/1992. As per the procedure for formation of panel prescribed in the said circular, the SC candidates placed on the panel applying specified relaxed standard can be considered only when adequate number of SC/ST candidates are not available as per general merit in the panel to fill up the reserved post. In the instant case, after adjusting the candidates against the unreserved posts, only one reserved vacancy was available for which only one SC candidate, the applicant who is qualified on general standard was available. So, there was no need to consider a candidate qualified on relaxed standard. As seen from the panel dated 10.8.2007 (Annexure R-II), it is clearly stated that R-5, N. Subhas Silas, is qualified under relaxed standard by securing 50% and above and below 60% marks whereas the name of the applicant is shown amongst those who are qualified on general standard without applying relaxed standard. As the candidate who is qualified on general standard is available to be adjusted against reserved SC vacancy, the question of applying relaxed standard for the purpose of filling up of SC vacancy does not arise. As R-5 who could not qualify on general standard, should not have been considered at all. So far as ST candidate is considered, as no ST candidate was qualified as per general standards, one ST candidate who secured 50% and above but below 60% marks was considered and he is rightly adjusted against ST vacancy. In our considered view, the final select list dated 24.10.2007 is not prepared in accordance with the procedure prescribed to the extent of filling up of the reserved SC vacancy and it shall be revised and the name of the applicant shall be adjusted against the SC vacancy in the place of R-5. Thus, these points are found in favour of the applicant and against respondents.

27. Point No. (iv):

In the result, the application is allowed and the impugned select list dated 24.10.2007, so far as it relates to adjusting of R-5 against SC vacancy, is set aside and the respondents are directed to promote the applicant against SC reserved vacancy in place of R-5 and revise the list accordingly within one month from the date of receipt of this order. The applicant is entitled to all consequential benefits. However, there shall be no order as to costs.