Judgment Ravi R. Tripathi, J.—The petitioner, Mohandas Poonthiyil, is before this Court being aggrieved by judgment and order of the Hon’ble Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application (OA) No. 153 of 2006, dated 9.11.2006; whereby, the Central Administrative Tribunal (CAT) was pleased to held that: “In view of the above discussions, there is no merit in the OA and the same deserves to be dismissed. It is dismissed with no order as to costs. Interim relief granted earlier is vacated. The period for which the interim relief has operated shall not be counted towards the period of validity of panel. A copy of the order should also be sent to Chairman, Railway Board. His particular attention is drawn towards Para- 27 of the judgment”. 2. The question involved in the matter is, whether a person should be allowed to blow hot and cold in the same breath? The petitioner in response to a notification for selection to the post of APO (Assistant Personnel Officer), LDCE, i.e. Limited Departmental Competitive Examination. A copy of that application dated 10.6.2004 is produced at Page No. 141 of the compilation. This forwarding letter in no uncertain terms reveals that the petitioner is basing his candidature on the fact that as his junior, named, Shri K.M. Joshi is eligible to appear for LDCE by virtue of Para 203.2 of IREM Vol. I, the petitioner is also eligible to participate in the selection. 3. It so happened that, on a subsequent stage, it was found that Mr. K.M. Joshi is not eligible to participate in this selection. Then the matter was examined, on number of representation being received by the Authorities. On scrutiny, it was found that the petitioner is not eligible to be allowed to participate on his own and if the basis of his junior being eligible to participate goes away, he too cannot be allowed to participate in the selection. 4. Learned advocate, Mr. M.S. Rao, very empathetically submitted that Para 203.2 of IREM Vol. I is applicable to LDCE; whereas, case of the railway authorities is that it does not apply to LDCE and is applicable only to regular selection which was applicable to 70% of the vacancies; whereas, LDCE is applicable for 30% of vacancies. 4. Learned advocate, Mr. M.S. Rao, very empathetically submitted that Para 203.2 of IREM Vol. I is applicable to LDCE; whereas, case of the railway authorities is that it does not apply to LDCE and is applicable only to regular selection which was applicable to 70% of the vacancies; whereas, LDCE is applicable for 30% of vacancies. It was very effectively explained by respondent No. 4, who is present before the Court that regular selection is for 70% vacancies and in the regular section employees are allowed to participate on the basis of seniority. Besides, the standard of eligibility is higher for such regular selection. So far as LDCE is concerned, it is meant for bringing ‘young blood’ and that is why, a ‘competitive examination’. There, it is a rule that a person who is allowed to participate must have experience of 5 years ‘non fortuitous’ (regular) service. The ad-hoc services were not to be taken into consideration. That being so, the contention which are raised by the petitioner before the Tribunal were found to be not acceptable by the Tribunal. This Court has perused the judgment and order of the Tribunal in detail which is running into 67 pages and Hon’ble Tribunal has taken to consider every relevant aspect of the matter. The Tribunal has taken into consideration all relevant provisions which were cited before the Tribunal either by the applicant-petitioner herein or the Railway Authorities or the Respondent No. 4, who was appearing before the Tribunal also. The relevant Paras of the judgment are as under: 11. The Zonal Railways broadly consist of the functional units like Divisions/Construction Organization etc. on one hand and the Production Unit i.e. the workshops on the other. There are a number of departments namely (i) Transportation, (ii) Commercial, (iii) Transportation (power), (iv) Mechanical Engineering, (v) Civil Engineering, (vi) Signal and Telecommunications, (vii) Stores, (viii) Medical Dept. (ix) Official Language. There are also (a) Railway School Staff, (b) Ministerial and Non- Ministerial Staff in Accounts & Other Dept. © Drawing office staff in Civil, Mechanical/ Electrical S & T dept. (d) Skilled Artisans and (e) Scientific staff. Some departments like Construction/ Project are temporary. 12. The preface of IREC (1985 editions) shows that these are rules (as amended upto 31.12.83) framed by the President in exercise of powers conferred under proviso to Article 309 of the Constitution. © Drawing office staff in Civil, Mechanical/ Electrical S & T dept. (d) Skilled Artisans and (e) Scientific staff. Some departments like Construction/ Project are temporary. 12. The preface of IREC (1985 editions) shows that these are rules (as amended upto 31.12.83) framed by the President in exercise of powers conferred under proviso to Article 309 of the Constitution. Rule 123, 207, 210 and 211 are as under:— 123. The Railway Board have full powers to make rules of general application to Group C and Group D railway servants under their control. 207. Recruitment to Railway Service Group-B: Appointment to Group-B Service by promotion of staff employed on the Railway may be made by the General Manager. 210. Promotion to Railway Service, Group-B Promotion to Group B posts shall be made by the General Managers except in the Security Department provided that such promotions are made in the strict order of placement on the panel recommended by the Selection Board, if any suppression of that order is involved the matter should be referred to the Railway Ministry. The posts of Assistant Officers shall ordinarily be filled by selection from Group C railway servants who have passed the departmental examination qualifying for promotion as Section Officer (Accounts), Inspector of Stores Accounts/ Inspector of Station Accounts or (sic) are exempted from passing that examination. 211. Promotion by Limited Departmental Competitive Examination:—25% of the vacancies for which panel is required to be framed at any one time for Group B posts in (a) Civil Engineering Department (b) Mechanical Engineering © Electrical Engineering Department (d) Signal and Telecommunication Department (e) Transportation (Traffic) and Commercial Department (g) (sic) Stores Department (h) Accounts Department are reserved for being filled through Competitive Examination limited to departmental candidates.” 13. The pre-factory note of IREM-1989 Edition indicates that Chapters have been rearranged after incorporating the present day position. It is further indicated that the provisions of this manual do not supersede the rules contained in any of the Indian Railway Codes and in case of conflict the latter should be prevail. 5. The Tribunal has then considered the rules / circulars applicable to the recruitment of Group B personnel and of those which are applicable to recruitment of APOs. The Tribunal has considered the same in Para-15. 5. The Tribunal has then considered the rules / circulars applicable to the recruitment of Group B personnel and of those which are applicable to recruitment of APOs. The Tribunal has considered the same in Para-15. Relevant part of which reads as under: (a) Applying to both method of selection (I) Railway Board Circular dated 14.4.87 (Annexure R-13) lays down the following eligibility criterion for promotion by selection/LDCE pursuant to acceptance of recommendations of fourth Pay Commission. “a) Employees working in grade the minimum of which is Rs.1400/- and in higher Group ‘C’ grades will be eligible to appear for Group ‘B’ selections provided they have rendered not less than three years of non-fortuitous service in the grade and have reached the pay stage of Rs. 2050/-. B) for the LDCE, employees holding posts in grade the minimum of which is Rs. 1400/- or in higher Group ‘C’ grades, with five years of nonfortuitous service in the grade will be eligible. In reckoning the period of service, the length of non fortuitous service rendered in the corresponding pre-revised scale (s) should be taken into account. 3. The LDCE, wherever the scheme is in force, is a part of process of filling of vacancies in Group ‘B’. Therefore, whatever is followed in the matter of determination of eligibility i.e. whether with reference to the prescribed scale or revised scale, for the selection against 75% vacancies should be followed for corresponding LDCEs against 25% vacancies.” Instructions have been given for preparing integrated seniority list from different streams for selection to Group-B posts. (i) Railway Board Circular dated 15.3.89 (Annexure-R/15) refers to this and three more Circulars and lays down as under:— (i) The extant eligibility condition of minimum pay Rs. 2050/- for selection of employees against 75% vacancies for promotion to Group ’B’ posts as contained in Para 1(a) of Board’s letter No. E(GP) 86/2/97 dated 14.4.1987 should dispensed with. (ii) The minimum qualifying marks in the written test for DCE in the non-professional subjections should be 45% as against 60% prescribed in Board’s letter No. E(GP) 76/2/96 dated 3.6.1977. The minimum qualifying marks 60% for professional papers will, however, continue as at present. Also no minimum percentage marks for the aggregate will be required for qualifying in the written examination for LDCE”. The minimum qualifying marks 60% for professional papers will, however, continue as at present. Also no minimum percentage marks for the aggregate will be required for qualifying in the written examination for LDCE”. (iii)Railway Board circular dated 18.5.99 (Annexure R/20) refers to R/15 and provides that pending revision of pay scale the eligibility condition may continue on the basis of notional IV Pay Commission scales. (iv) Railway Board Circular RBE 146/04 dated 22.7.2004 refers to R/13, R/15 and R/20 and reiterates R/13 with the change that (i) for selection pay of Rs. 1400 is replaced by pay of Rs. 5000 and the condition of reaching the stage of Rs. 2050 in the scale is dropped and (ii) for LDCE the pay of Rs. 1400 is replaced by pay of Rs. 5000. Para-3 regarding applicability to LDCE now reads: “The LDCE, wherever the same is in force, is a part of the process off filling vacancies in Group ‘B’. Therefore, whatever is followed in the case of selection, may also be followed in the case of corresponding LDCE”. (b) Applying to selection (i) Railway Board Circular dated 9.4.81 (Annexure R-10) is in continuation of circulars dated 26.10.76 and 23.1.79. It lays a sliding scale with regard to zone of consideration in respect of 1 to 3 vacancies and 3 times the vacancies for four or more vacancies. It has replaced the earlier practice of calling six times the vacancies. It has been laid down the selection must be held once in two years and in case bunching of vacancies takes place due to unavoidable reasons then the panel should be declared separately for each year. Para-2.2 provides that this concept of zone of consideration will not apply in the case of selection of promotion to Group ‘B’ posts of Personnel Department and the existing instructions to consider eligible ministerial staff of various departments will apply. (ii) Annexure R/12 refers to R/10 and provides that existing instructions contained in those letters will apply. The earlier instruction was modified to the extent that additional employees will be called to the extent twice failed employees are in the zone of consideration. (iii) Annexure R/14 refers to R/10 and R/12 and reiterates/ clarifies the instructions regarding frequency of selection, method of computing vacancies, method of conducting selection. The earlier instruction was modified to the extent that additional employees will be called to the extent twice failed employees are in the zone of consideration. (iii) Annexure R/14 refers to R/10 and R/12 and reiterates/ clarifies the instructions regarding frequency of selection, method of computing vacancies, method of conducting selection. It clarifies that those who do not participate will be treated as having failed for the purposes of 1986 circular. This circular dated 11.1.86 further provides that the guidelines relating to addition of 30% will not apply to that Gr.-B posts where cadre is small and instructions for conduct of examination contained in (i) to (v) will not apply in case of APOs and all eligible volunteers will be considered. As a matter of fact this Paragraph 3 reads as under:— i) The election for Group ‘B’ posts should be held once every two years without fail. The work should be spread out evenly so as to cover half of the departments in the first year and the rest of the departments in the following year and the cycle repeated. The various process connected with the selection should be commenced adequately in advance, so that the schedule for holding the selection is not disturbed. For this purpose, a suitable calender my be drawn depending on the position on your system and the work monitored closely to ensure that the schedule is not tripped. The work in this regard should be reviewed periodically at the level of CPO. Ii) Vacancies for two years should be assessed properly with the aid of all known factors and possible anticipations. Top the vacancies so assessed, an addition of 30% (thirty per cent) of the cadre of both Group ‘B’ and Junior scale posts including Construction Reserve should be made. This is in modification of the existing instructions for providing the addition at 20%. For selections to the Group’B’ posts of AHO, Law Officer, APRO, AS (P & S), Assistant Chief Cashier, ACMT where the cadre is small and the incidence of vacancies is not regular, the assessment should be limited to the vacancies existing plus those anticipated to arise during the two years’ period covered by the assessment. For selections to the Group’B’ posts of AHO, Law Officer, APRO, AS (P & S), Assistant Chief Cashier, ACMT where the cadre is small and the incidence of vacancies is not regular, the assessment should be limited to the vacancies existing plus those anticipated to arise during the two years’ period covered by the assessment. In other words, there will be no addition to the assessment as a percentage on the cadre strength; iii) The notice issued for the selection, besides containing the names of eligible employees constituting the field, should contain a reserve list carrying the names of extra eligible employees with the indication that the later would be called for the written examination in the event of drop out of employees constituting the field; iv) Employees constituting the field should be advised individually of the proposed selection with the clear stipulation, that they should on receipt of the notice, advise their willingness / unwillingness to take the selection. For this purpose, each individual notice should have a counterfoil which should be returned by the employees within a fortnight of receipt indicating willingness or unwillingness to take the selection. The notice should carry a clear indication that it is the employee’s responsibility to advise his / her willingness/ unwillingness to take the selection and failure to respond or provide the intimation within the period allowed will be treated as unwillingness on his/her part to take the selection. Depending on the position of unwillingness reported or non-receipt of any intimation, employees from the reserve list should be called to the extent necessary for taking the selection. V) Such employees who neither appear for the written examination nor indicates their unwillingness should be treated as having availed of an opportunity, for purpose of the instructions contained in Para 1(ii) of Board’s letter No. E(GP) 85/1/78 dated 10.9.1986. vi) Paras (iii), (9v) and (v) will not apply to selections of APO for which the field is not determined with reference to the vacancies and all eligible volunteers in response to the notice are considered. Vii) All ad hoc arrangements made should be terminated on the declaration of the panel. vi) Paras (iii), (9v) and (v) will not apply to selections of APO for which the field is not determined with reference to the vacancies and all eligible volunteers in response to the notice are considered. Vii) All ad hoc arrangements made should be terminated on the declaration of the panel. There should also normally be no need to resort to ad hoc arrangements before the next selection in view of the provision for a liberal assessment of vacancies taking into account 30% of the cadre of both Group B and Junior Scale posts including Construction Reserve. If the panel is likely to be used up before the next selection becoming due after two years, steps should be initiated to hold the next selection without waiting for the 2 year period to be over, so that the next panel becomes available. In the event of ad hoc arrangements still becoming necessary, due to unavoidable contingencies like injunctions from Court of Law, consideration for such appointment should include those who although called, did not appear for the earlier selection and also those who failed to qualify in the written test or viv-voce or in the selection”. 16(a) The Railway Board’s letter dated 3.6.77 conveys its decision for conducting LDCE for Engineering services (Annexure R-9). The eligibility condition reads:— “1(a) To be eligible to appear in the Competitive Examination. A candidate has to fulfill the following conditions:— (i) he should be a permanent railway servant with a minimum of five years railway service, and (ii) and he should have been regularly selected for a grade the minimum of which is Rs. 425/- and above in a revised scale of pay.” Other condition of this notification have been incorporated in the table referred to in Para-41 below. © LDCE Selection The Railway Board Circular dated 10.1.90 refers to 3 circulars of Railway Board including circular dated 3.6.77 (Annexure R/9) to convey the decision of the Board that 25% posts of APOs would be filled by LDCE as in case of Accounts Stores and Engineer Services. Para 2.1 and 2.2 (Wrongly types as 3.3) reads as under:— “2.1 25% of the vacancies in the post of Assistant Personnel Officer for which panel is required to be framed at any one time examination. Para 2.1 and 2.2 (Wrongly types as 3.3) reads as under:— “2.1 25% of the vacancies in the post of Assistant Personnel Officer for which panel is required to be framed at any one time examination. The remaining 75% of the vacancies will continue to be filled by selection as presently in vogue in the Personnel Department except that the eligibility will be restricted to the employees who are holding posts in grades Rs. 550-750 (Rs)/Rs.1600-2660 (RPS) and above on non-fortuitous basis. However, the condition of the minimum pay of Rs. 2050/- for eligibility is not necessary as already advised vide this office letter No. E(GP) 88/2/III dated 15.3.1989. 2.2 The board details of the scheme of the Limited Departmental Competitive Examination are contained in the Annexure to this letter. Action is being taken to amend the relevant Recruitment Rules and the Railway Administration will be advised as soon as the amendments are notified”. 6. The Hon’ble Tribunal has then focused its attention on appreciation of the details led before it in Para 18 reads as under: 18. The following position emerges from the above discussions:— (a) IREC is framed in exercise of powers conferred under proviso to Article 309 of the Constitution. Rule 123 provides that Railway Board can frame rules of general applicability for Gr.-C & Gr.-D staff. The Constitution Bench in B.L. Wadhera vs. Union of India, AIR 1969 SC 118 has held that these rules have statutory force. Rule 207 empowers the GM to promote employees upto Group ‘B’ posts. Rule 210 & 211 provides for promotion by selection and by LDCE in respect of departments mentioned therein. (b) Railway Administration has framed rules under Article 309 of the Consideration and have also issued administrative instructions providing for both the mode and method of selection. The recruitment rules for the post of Electrical Department are on record. They provide for promotion by selection as well as promotion by LDCE. It is only in case of promotion by selection that senior becomes eligible even if he does not fulfill the minimum service conditions. Para 16(b) refers. Recruitment rules were framed for filling up the posts of APOs by promotion by selection. Employees of department other than personnel are eligible to participate in it. The LDCE in case of APOs is subsequently introduced in 1990. Para 16(b) refers. Recruitment rules were framed for filling up the posts of APOs by promotion by selection. Employees of department other than personnel are eligible to participate in it. The LDCE in case of APOs is subsequently introduced in 1990. Though it is stated that the Recruitment Rules are being amended no such amendment is carried out. Rule 211 of IREC also does not appar to be amended. The Recruitment Rules for Electrical Engineers and APOs which are on record, refer to pay scales/pay after third pay commission. Though executive instructions have been issued for clarifying the situation the Recruitment Rules have not been amended. Amongst others the following questions can arise:— “(i) Whether the department can introduce another mode of promotion with different eligibility conditions by an executive instruction? And (ii) Whether somebody, who has participated can challenge the new mode of selection on the ground that the previous eligibility criterion must apply”. © The Railway Board have issued detailed guidelines regarding eligibility, zone of consideration, number of chances, syllabus of examination preparation of panel etc. These instructions distinguish selection of APOs from those of other departments and also differentiate LDCE examination from promotion by selection. IREM only contains summary of instructions contained by Railway Board. A question naturally arises as to whether the entire text of that circular has to be seen while considering the applicability of IREM. Interpretation of Para 203.2 is the moot question in this OA. (d) The comparative position in respect of key parameters is indicated in Para 41 below. 7. The Tribunal then proceeded to appreciate the decision of the Hon’ble the Apex Court stated before it and recorded its appreciation in para-26 and 27 as under: 26. The following principles emerge from the decisions cited above. (a) It is within the competence of the executive to decide the sources from which the personnel required for manning the services are to withdraw. An appointment / recruitment can be made both from external / internal source. Internal source would relate to cases where appointments are made by promotion or by transfer or by absorption. (b) The executive power is conterminous with legislative power. When statutory rules have been framed the appointments can be made only in accordance with those rules. The executive instructions can only supplement and not supplant the law. Internal source would relate to cases where appointments are made by promotion or by transfer or by absorption. (b) The executive power is conterminous with legislative power. When statutory rules have been framed the appointments can be made only in accordance with those rules. The executive instructions can only supplement and not supplant the law. © Unless the Legislature has delegated the Legislative power the Executive cannot exercise the legislative power. 27. The facts of the present case have been summarized in Para 18 above. The statutory recruitment rules for the post of APO provide that these posts shall be filed up by promotion by selection failing which by direct recruitment. LDCE for APOs has been notified in 1990. It was stated therein that amendment to the recruitment rules will be carried out in due course. The said amendment however, does not appear to have been carried out till date. We find that the question as to whether the 1990 instructions should be struck down on account of this legal infirmity has not been raised in the present OA. In any case the applicant is himself seeking promotion under the examinations held under this 1990s scheme. We are not expressing any opinion on this point. It would, however, be necessary for the Railway Board to consider this aspect and take appropriate action. 8. The Tribunal then proceeded to consider the submissions made by learned advocate appearing for private respondent. The same become relevant for the simple reason that he was the person directly affected by the result of the original application. In Para-29, 30 and 38, read as under: 29. Mr. K.K. Shah, learned Counsel for the private respondents has contended that the letter dated 22.3.2006 is an internal communication of Railway Board to the General Manager, Wester Railway and is also not addressed to the applicant. Such internal communication cannot provide a course of action. He has placed reliance on the decision of Apex Court in MD U.P. Land Development vs. Amar Singh, 2003 (5) SCC 388 . 30. Mr. K.K. Shah, learned Counsel for the private respondents has also contended that the applicant ought to have also challenged the order dated 6.4.2006 issued by GM giving effect to this internal communication. He has placed reliance on the decision of Apex Court in MD U.P. Land Development vs. Amar Singh, 2003 (5) SCC 388 . 30. Mr. K.K. Shah, learned Counsel for the private respondents has also contended that the applicant ought to have also challenged the order dated 6.4.2006 issued by GM giving effect to this internal communication. He has also made grievance that even though the said panel was subsequently withdrawn the promotion granted to persons at serial No. 1 & 2 on the panel was not withdrawn. 38. It was next contended by Mr. K.K. Shah that applicant has misrepresented facts by stating that he has completed five years service on due date and that undue favour was shown to the applicant. The format of the application has been referred to in Para 2(a) above. Mr. Rao has made available a copy of the application along with forwarding letter. The applicant has against Sr.No.6 stated that he is working in the scale of Rs. 5000-8000 w.e.f. 21.3.99. He has stated against Sl.9 that his total non fortuitous service is 5 years 2 months 3 days. He has also signed the declaration at the foot of format. Mr. Rao, learned Counsel for the applicant has however, contended that in the forwarding letter dated 10.6.2004 the applicant had clearly stated that he is seeking eligibility vis-à-vis his junior. While forwarding his application entires against Sl. Nos. 6 & 9 are corrected. A footnote is recorded. He is made eligible as his junior Shri H.K. Joshi P I III is junior to Shri P. Mohandas. There is no forwarding letter in this file. Such corrections regarding entires have been made in a number of cases. It was initially for the Respondents Railway Administration to take a view as to whether these entries disentitled him in terms of the declaration. The forwarding letter of DRM (E), Baroda does not refer to applicant’s forwarding letter dated 10.6.2004. It appears that the Zonal Railway had included his name in the list o eligible candidates on the criterion that his junior had been included. The official respondents did not file a further reply after this allegation was made in the reply of private respondents. A comparison of the application produced by the applicant with the prescribed format shows that the entries made by applicant against Sl.No.6 and Sl.No.9 of the format are incorrect. The official respondents did not file a further reply after this allegation was made in the reply of private respondents. A comparison of the application produced by the applicant with the prescribed format shows that the entries made by applicant against Sl.No.6 and Sl.No.9 of the format are incorrect. Hence in terms o the declaration signed by the applicant he could have been debarred from appearing in the selection and from being empanelled. This was however, not done. We are not expressing any final opinion on the question as to whether he was unduly favoured for want of proper pleadings on record this point for want of proper pleadings. 9. The Hon’ble Tribunal then focused its attention to the provisions contained in 203.2 in Para 39 onwards and after discussing the same, recorded its findings in Paras -42, 43 and 44 read as under: 42. The above table shows that there is a difference between eligibility conditions, Zone of consideration, the standard of written test and the method of preparation of panel in the case of promotion by selection and LDCE in both combined Engineering Services and APOs. It also indicate that employees of other departments can apply for the post of APOs and that there is no concept of zone of consideration in APOs. It is perhaps because of this that in case of selection to APOs the employees have to be in the grade of 5500-9000 as against 5000-8000 in Engineering Department. Employees in the scale of 5000-8000 are eligible to participate in the LDCE examination. Neither the applicant nor the respondents have brought on record the position obtaining in the other departments regarding promotion by selection and LDCE. 43. LDCE is more akin to direct recruitment from amongst employees in the organization, who have acquired relevant work experience. The idea is to induct eligible employees down the seniority list unconstrained by zone of consideration. When the feeder grade has an element of direct recruitment also it may so happen that a directly recruited senior does not fulfill the experience criterion while his junior promote fulfills the same. 44. We also notice that Para 201.1 of IREM was amended by ACS dated 5.8.98 that in case of LDCE the relevant recruitment rules/ executive instructions have to be referred to. There is no challenge to this Advance Correction Slip in the present OA. 44. We also notice that Para 201.1 of IREM was amended by ACS dated 5.8.98 that in case of LDCE the relevant recruitment rules/ executive instructions have to be referred to. There is no challenge to this Advance Correction Slip in the present OA. This notification appears to recognize the difference between LDCE selection and promotion by selection in various departments. Para-3 of Railway Board Circular 14.4.1987 indicated that whatever applies in matter of determination of eligibility to selection will apply to LDCE also. The position regarding pay scale has been referred to. Contents of RBE 146/04 can also be seen in this context. (Para 15(a)(i) & (iv). We also find from ACS 181/2006 produced by the applicant that it refers to changes introduced in 1991, 1992 & 2004 and quotes those letters as authority for change. 10. The Hon’ble Tribunal after taking note of the various decisions cited by learned advocate appearing for the petitioner who also appeared beofre the Hon’ble Tribunal for the applicant recorded its findings in Paras-54 and 55 as under: 54. In view of the above discussions, it is clear that promotion by selection and LDCE have distinguishing features. The Apex Court in Prabha Devi has held that seniority can neither substitute eligibility nor override it. In case of combined Engineering Services (Electrical) the RR distinguishes promotion by selection and LDCE in matter of calling senior. Hence, reliance cannot be placed on RR for selection to claim that seniors are directly eligible. 55. We are of the view that Para – 203.2 applies only in cases of promotion by selection and not to LDCE Examination. Thus, this contention of Mr. Rao has to be rejected. 11. The learned advocate for the petitioner is not able to answer as to what prevented him from contending that the rules are not amended at the time of applying for LDCE on 10.6.2004 and therefore, LDCE can not be held. It is pointed out to the Court that Rule 123 of IREC i.e. Indian Railways Establishment Code (a compilation of rules framed by the President), clearly empowers the Ministry of Railways to frame necessary rules may be initially in the form of notification, which are then incorporated in IREC and IREM. 12. Learned advocate for the petitioner is not able to dislodge the case of the other side that ‘LDCE’ is held since 1990. 12. Learned advocate for the petitioner is not able to dislodge the case of the other side that ‘LDCE’ is held since 1990. For all along, the Authorities have been following instructions which the petitioner wants to challenge now after having been dis-paneled from the panel of the selected candidates. That is why, it is observed by this Court that the petitioner is blowing hot and cold in the same breath. Not only that, even subsequent to selection, in question, (which was held in 2004), selections have taken place in 2006, 2007 and even in 2009. All these elections have been taking place on the same lines on which it started in 1990. That being so, this Court finds that petition is not only misconceived but is also misplaced and misguided. The petitioner having participated in the selection which was held under the given set of rules, is now challenging only because his name is taken out by the panel. 13. The learned advocate for the petitioner was asked as to why did he not challenge the same before participating in the selection. Learned advocate for the petitioner has no answer much less a convincing answer for the same. 14. At one stage, learned advocate for the petitioner very empathetically argued that his application along with forwarding letter at page Nos.141 and 142 was forwarded by the Higher Authorities at Divisional level and therefore, he is not guilty of any suppression or misrepresentation because it was the duty of the forwarding authority to verify the contents of his application. 15. It is really strange to hear such an argument from a seasonal advocate. Petitioner is contending that the higher authority has not verified the contents of his application while forwarding it to still higher authority and therefore, not only that he is not at fault but the authorities be stopped taking note of the defects in the application. This Court is not able to accept this contention as this contention is raised by frustrated soul. 16. Learned advocate for the petitioner very empathetically stated that he has explained the contents of Column No. 9, namely, total non fortuitous service in Grade Rs. 5000-8000 (RPS & above as on 24.5.2004, which is mentioned to be 5 years 2 months and 3 days in the forwarding letter. This forwarding letter is written in a descriptive form (not in a tabular form). 5000-8000 (RPS & above as on 24.5.2004, which is mentioned to be 5 years 2 months and 3 days in the forwarding letter. This forwarding letter is written in a descriptive form (not in a tabular form). It is a fact of which judicial notice can be taken. Normally, any authority or any person for that reason, while looking at these two documents will take into consideration the contents of tabular, formated application. It is only when one is in receipt of any complaint and is asked to read the whole forwarding letter, he will be doing so. In that view of the matter, explanation rendered about the period mentioned in column No. 9 is that to 5 years 2 months and 3 days, bifurcating the same in two categories i.e. the ad-hoc services and regular services is of no consequence. 17. It is reported that in 2009, the petitioner is already got selected as APO and he is serving as APO, This Court restrains itself from making any observation and issuing any direction for taking any disciplinary action against the petitioner for having misrepresented in the application. His attempt to get seniority from 2004 is found to be not only unjustified but untenable in the eye of law. Therefore, this petition is dismissed without imposing any cost. 18. In fact, it is a fit case; wherein, at-least, petitioner could have been directed to pay the expenses incurred by respondent No. 4 who is dragged not only to the Hon’ble CAT to contest the O.A. but he is also dragged to this Court and he had hanging sword on his selection since 2006. But taking a lenient view, then this Court restrains itself from making any observation against the petitioner. Rule is discharged with no order as to costs.