Judgment : P.S. Gopinathan, J. W.P.(C) Nos. 19549 of 2009 and 20263/2008 were filed against Ext.P5 common order of the Central Administrative Tribunal in O.A. 875/2005 and 146/2006. Petitioner in W.P. (C) 19549/2008 is a third party. Petitioners in the other writ petition are respondents 16, 13, 15 and 14 respectively in O.A. 875/2005. The order impugned before the Tribunal is Annexure A4 order dated 9.11.2005. Assailing the same order, the petitioner in W.P.(C) 30307/2006 preferred the application O.A. 861/2005 before the Tribunal. In O.A. 875/2005 and 146/2006, the Tribunal, while allowing the applications, set aside the order impugned which contains a list of 22 candidates, including the petitioners, selected from among Group D employees for promotion to Group C and directed the official respondents to prepare an yearly list. In O.A. 861/2005, the Tribunal declined to interfere with on finding that the applicant was not medically fit. 2. The facts leading to the petitions are as follows: One third of the total posts in Group C is reserved for Group D employees having at least three years service. Group D includes six categories with different pay scales namely: By Annexure A1 notification dated 27.11.2002 produced in O.A. 875/2005 and connected O.A., applications were invited from Group D employees to appear for a qualifying test, written and viva-voce for preparing a list for promotion to 1/3 quota. Annexure A1 notification is for 15 vacancies. Subsequently more vacancies were reported and a revised notification dated 3.7.2003, copy of which is produced as Annexure A2, was issued. In Annexure A2, 23 vacancies were reported. Petitioners in all the cases applied for the test. Except the petitioner in W.P.(C) 30307/2006, the other petitioners were successful and included in the list. The applicants including the applicant in O.A. 861/2005 before the Tribunal contended that though they performed well in the written test and viva-voce and having long term service in Group D, they were not included in the list. According to them, the written test and viva-voce were farce and that ignoring their seniority in service, juniors were included in the impugned order and that an yearly list should have been prepared. In O.A. 861/2005, gender discrimination was also alleged. Therefore, they sought for an order setting aside the impugned order. 3. According to them, the written test and viva-voce were farce and that ignoring their seniority in service, juniors were included in the impugned order and that an yearly list should have been prepared. In O.A. 861/2005, gender discrimination was also alleged. Therefore, they sought for an order setting aside the impugned order. 3. In O.A. Nos.875/2005 and 146/2006, respondents contended that the applicants had not produced any documents to show that they are seniors to those who have been selected as per the impugned order and that the seniority in Group D is in the order of scale of pay, namely, those who are in the higher pay scale are enbloc senior to those in the lower pay scale irrespective of their joining date in the respective post. The written test and viva-voce were conducted in proper manner and that the list of successful candidates in the order impugned is seniority cum merit and prayed for dismissal of the petition. In O.A. 861/2005 it was further contended that the applicant was omitted in the list as she was medically not fit. 4. We have heard the learned counsel appearing on either side and perused the orders impugned. Though the conduct of the written test and viva-voce was assailed, the applicants were not successful in establishing the same. The Tribunal, after evaluating the pleadings and documents, found that the test was conducted in a proper way. Before us, no argument was advanced regarding the manner in which the written test and viva-voce were conducted or to show that the test was anyway vitiated. In the above circumstances, we find it needless to go into the dispute regarding the conduct of the written test or viva-voce. 5. From the arguments advanced from either side, we find that though Clause 189(4) of the Indian Railway Establishment Mannual proposes promotion for yearly vacancies, it is complied in breach only. There was no yearly test or promotion and as a result the vacancies accumulated. It is in that circumstance Annexure A1 and A2 notification were issued on 27.11.2002 and 3.7.2003 for a consolidated test. Neither Annexure A1 nor Annexure A2 was assailed. There is no whisper in the application before the Tribunal that a consolidated test for the accumulated vacancies would any way infringe any right of any of the party. It is in that circumstance Annexure A1 and A2 notification were issued on 27.11.2002 and 3.7.2003 for a consolidated test. Neither Annexure A1 nor Annexure A2 was assailed. There is no whisper in the application before the Tribunal that a consolidated test for the accumulated vacancies would any way infringe any right of any of the party. Tribunal has also not arrived at a finding that by the consolidated test, any party was adversely affected. Therefore, we find that the official respondents cannot be found fault with for conducting consolidated a test for preparing list of candidates for promotion from Group D to Group C for the accumulated vacancies as on the date of notification. In the given set of pleadings, we are of opinion that the reason stated by the Tribunal for allowing O.A. Nos.875 and 146 of 2006 is not legally sustainable as it is an empty formality. We further hold that it would be just and appropriate for the official respondents to conduct consolidated test for preparing the select list of Group D employees for promotion to the accumulated vacancies in Group C. 6. The inclusion of the name of the petitioners in W.P.(C) Nos.19549/2008 and 20263/2008 in the impugned order was assailed by the party respondents on the allegation that the petitioners are juniors to the party respondents and therefore, inclusion of the names of the petitioners in the impugned order after excluding the party respondents is illegal and improper. No material was placed before us to show that the contesting respondents are senior to the petitioners. From the arguments advanced, it is revealed that the petitioners are drawing higher scale than the party respondents and therefore, the petitioners were given preference to the party respondents who were drawing lesser salary or with a lesser pay scale. Sometimes, when the length of service in Group D is taken into account, the party respondents maybe having longer service than the petitioners. The party respondents would rely upon the judgment of a Division Bench of this Court dated 27.11.2007 in O.P. 14500/2003 in support of this argument. In the last, but one paragraph, after referring to the relevant rules, it was held as follows: “Going by Rule 180 of the Manual, we find that the seniority should be reckoned with reference to the length of service. In the last, but one paragraph, after referring to the relevant rules, it was held as follows: “Going by Rule 180 of the Manual, we find that the seniority should be reckoned with reference to the length of service. A reasonable construction, which should be placed on the Rule, is that it should the length of service in Group D cadre. The petitioners, on the other hand, would submit that persons with higher scale of pay in Group D cadre should be treated as seniors to those in the lower scale of pay, notwithstanding the length of service. The said contention is not supported by any of the above said Rules. Further, if it is accepted, it will work out serious prejudice to the persons in the lower scale of pay with longer service and persons with a few months service will steal a march over them, provided the seniors are not drawing a higher scale of pay, though in Group D cadre. Further, as rightly pointed out by the learned counsel for the first respondent, all the promotions in the 33.33% quota reserved will be cornered by a particular stream and others will be denied promotion. Therefore, we find nothing illegal with Ext.P1 order of the Central Administrative Tribunal. We agree with the reasons and conclusions of the Tribunal.” Following the above decision, O.P.7278/2002 was also disposed on 19.12.2007. If the ratio of the above decision is applied, the length of service in Group D, irrespective of the scale of pay or grade is the criteria to determine the seniority for promotion to Group C. The petitioners would contend that the above two judgments which were rendered without properly considering the relevant rules in the correct perspective, do not declare the correct law and that the correct law is declared by the Apex Court in R.K. Sethi and Another v. Oil & Natural Gas Commission and Others ((1997) 10 SCC 616). 7. Before going to the merits of the above contention, we find that it would be appropriate to read the relevant clauses in the Indian Railway Establishment Manual. Clause 180 reads as follows: “Transportation (Traffic) and Commercial Deptt.—All railway servants in the lowest grade should be eligible for consideration for promotion to higher grades in both the Transportation and Commercial branches. Applications should be invited from amongst categories eligible for promotion from both the branches. Clause 180 reads as follows: “Transportation (Traffic) and Commercial Deptt.—All railway servants in the lowest grade should be eligible for consideration for promotion to higher grades in both the Transportation and Commercial branches. Applications should be invited from amongst categories eligible for promotion from both the branches. All Railway servants who apply will be considered. An adhoc seniority list will be prepared on the basis of length of continuous service in the grade and suitable men selected and placed on a panel for training. Systematic and adequate training and examinations or tests must precede actual promotion.” Clause 189 reads as follows: “(a) Railway servants in Group ‘D’ categories from whom no regular avenue of promotion exists 33-1/3% of the vacancies in the lowest grade of Commercial clerks, Ticket collectors, Trains Clerks, Number Takers, Time Keepers, Fuel Checkers, Office Clerks, Typists and Stores Clerks etc. should be earmarked for promotion. The quota for promotion of Group ‘D’ staff in the Accounts Deptts. To Group ‘C’ post of Accounts Clerks will be 25%. Promotion to Group ‘C’ will be subject to the following conditions:- (i) All promotion should be made on the basis of selection, there should be written tests to assess the educational attainments of candidates followed by interviews where considered necessary. Group ‘C’ categories referred to above should be suitably linked with specified categories in the lower grades on broad affinity of work to form groups for promotion but it should be ensured that the prospects are made regularly equal in the different groups. The test should be correlated to the standards of proficiency that can reasonably be expected from railway servants who are generally non-matriculates. The aim of the examiners should be to assess the general suitability of class IV railway servants offering themselves for promotion to class III posts from the point of view of their knowledge of English and their general standard of intelligence. (1) Written test should consist of one paper of 3 hours duration divided into two parts— Part ‘A’ to test the working knowledge of the railway servant of the English language and part ‘B’ his general standard of intelligence and proficiency through questions in Arithmetic, General Knowledge mainly pertaining to Railway matters and matters immediately pertaining to the work he has been acquainted with during his Railway service. In drawing up the questions it must be ensured that they are not set as such a standard as to made it impracticable for a Group ‘D’ railway servant of average intelligence and normal standards of efficiency to qualify in the test. (2) Oral test should adjudge other factors of suitability if so considered necessary by the General Manager. (3) Selections may not be restricted to three times the number of vacancies but kept open to all eligible candidates who would like to be considered for such selection. (4) All those who qualify in written and oral test, the qualifying percentage of marks being prescribed by the General Manager, should be arranged in the order of their seniority for promotion against the yearly vacancies available for them in Group ‘C’ categories. (ii) Group ‘D’ railway servants to be eligible for promotion to Group ‘C’ posts should have put in a minimum 3 years of continuous service. This does not apply to Scheduled Castes and Scheduled Tribes candidates. (iii) (a) …. (omitted as irrelevant). Clause 320 (formerly Clause 321) reads as follows: “Relative seniority of employees in an intermediate grade belonging to different seniority units appearing for a selection/non-selection post in high grade. When a post (selection as well as non-selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning inter-seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non-fortuitous service should be taken into account for this purpose.” On a combined reading of the above clauses, we find that promotion to Group C from among Group D is limited to 33 1/3 % vacancies in Group C. There shall be a qualifying examination including written test and viva-voce. Those who qualify in the written and oral test would be arranged in the order of their seniority for promotion and that seniority will be determined on the basis of the length of continuous service in the grade and suitable candidates selected would be sent for training. Continuous length of service would be in the same grade. Those who qualify in the written and oral test would be arranged in the order of their seniority for promotion and that seniority will be determined on the basis of the length of continuous service in the grade and suitable candidates selected would be sent for training. Continuous length of service would be in the same grade. We had earlier mentioned in Para 2 that Group D consists of six categories mentioned therein. On the basis of pay scales, generally those who are in category-I shall be entitled to en bloc seniority over those in other categories. Those who are in Category-IV are entitled to seniority over category-II. Those who are in category-II shall be entitled to en bloc seniority over category-III and V. Those who are in category-III and V are entitled to en bloc seniority over category No. VI. We mean persons with higher pay or pay scales are entitled to seniority. Deciding seniority on the length of service in Group D irrespective of the scale of pay would be against equity, service jurisprudence and the manual. Length of the service may become relevant in cases where the issue arises between persons drawing equal pay in different categories. It is not appropriate to equate different categories with different scales when the examination conducted to prepare the list is only a qualifying examination. Probably the argument of the respondents would be good if the manual proposes for a competitive examination because in competitive examination the merit alone is the consideration to determine the rank/seniority. But in qualifying examination, the performance in the examination shall not be allowed to trample the settled seniority acquired by the grade among different categories. It is just and appropriate to give seniority to persons with higher grade or scale of pay as against those with lower grade or scale of pay irrespective of the length of service. In cases where pay is equal, length of service shall govern the seniority. In our opinion that is the mandate of Clause 320 quoted above. In R.K. Sethi’s case (supra) at para 11, it is held by the Apex Court as follows: “…….. [I]n this context, it may also be mentioned that till 1.4.1979 the pay scales of Telex Operators were lower than those of AG-II and it was only with effect from 1.1.1979 that both have been placed on the same scale. In R.K. Sethi’s case (supra) at para 11, it is held by the Apex Court as follows: “…….. [I]n this context, it may also be mentioned that till 1.4.1979 the pay scales of Telex Operators were lower than those of AG-II and it was only with effect from 1.1.1979 that both have been placed on the same scale. The earlier service of the Telex Operators in a lower pay scale could not be equated with the service of regular employees in AG-I cadre in a higher pay scale. The Telex Operators were, therefore, rightly placed below the regular employees in AG-II cadre at the time of merger of the cadre of Telex Operators in the cadre of AG-II. The High Court, in our opinion, was not right in holding that the commission had committed an error in placing the Telex Operators en bloc below regular employees in AG-II cadre when Telex Operators were brought in the cadre of AG-II.” We find that our above conclusion is in tune with the decision of the Apex Court. The Bench decision in O.P.14500/2003 which was followed in O.P.7278/2002 is not the correct law in the light of the decision of the Apex Court. Before us, no material was placed to show that the respondents are entitled to seniority over the petitioners so as to include in the select list excluding the petitioners. Though Para 189(4) quoted above proposes for preparation of list in the order of their seniority for promotion in the yearly vacancies, when there is failure to conduct yearly test and yearly seniority list as mentioned earlier, the mere fact that a combined seniority list was prepared is not at all a reason to interfere in judicial proceedings, especially, when there is no material to come to a conclusion that there occurred any error or illegality or the right of any of the respondents was anyway affected. In the event there is failure for yearly test, we are of opinion that it is not at all necessary for preparing an yearly rank list. A combined test and combined seniority list would meet the mandate of the Manual. The interference of the Tribunal in the impugned order and direction to prepare yearly promotion list is not at all sustainable. In the given set of facts, preparation of yearly list is only an exercise in futile. A combined test and combined seniority list would meet the mandate of the Manual. The interference of the Tribunal in the impugned order and direction to prepare yearly promotion list is not at all sustainable. In the given set of facts, preparation of yearly list is only an exercise in futile. Therefore, the petitioners in W.P.(C) 19549/2008 and W.P.(C) 20263/2008 are entitled to succeed. 8. In W.P.(C) 30307/2006, though the official respondent would contend that the petitioner was excluded as she was found medically not fit, no document is produced before us as to what was the disability. It is yet to be known as to whether disability detected is permanent or not. If curable, petitioner can take up treatment and on curing the disability, she is entitled to get promotion. Therefore, she is entitled to such a relief. In the result, while allowing W.P.(C) 20263/2008 and W.P.(C) 19549/2008, the order of the Tribunal impugned is set aside and Annexure A4 rank list in O.A. 875/2005 (Ext.P3 in W.P.(C) 19549/2008) is restored. While allowing W.P.(C) 30307/2008, the order impugned is set aside and there will be a direction to the official respondents to conduct a fresh medical test and in the event the petitioner is found fit she shall be given promotion in the next arising vacancy. In the event she is found not fit, she shall be informed about her disability and allowed to undergo treatment and as soon as she is cured of the disability, she should be given promotion. There will be no order as to costs.