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2014 DIGILAW 998 (GAU)

Union of India v. Mohua Biswas

2014-11-14

K.SREEDHAR RAO, UJJAL BHUYAN

body2014
Judgment K. Sreedhar Rao, J. 1. This writ petition is directed against the order, dated 03.04.2007 passed by the Central Administrative Tribunal, Guwahati Bench. The respondent No. 1 is the contesting respondent. The respondent Nos. 1 to 6 appeared in the selection test of PGT (English) in Railway Schools. The Selection Board conducted written test and viva voce. The norms for selection prescribed as follows: Sl. No. Subjects Maximum Marks Qualifying Marks 1 Professional ability 50 30 2 Personality address Leadership and academic qualification 20 3 A record of service 15 4 Seniority 15 2. Out of the maximum marks of 50, one should secure qualifying marks of 30 in professional ability and overall 60 marks for being eligible for empanelment. About 8 persons appeared in the test. The Tribunal, in page 8 of its order has extracted the names of the candidates and respective marks obtained by them in the following manner: Sl. No. Name of the Candidates Marks obtained 1. Smt. Sudipta Das 74 2. Sri Bharat Karjee 73.57 3. Smt. Krishna Dutta 63.14 4. Sri Apurnamoy Ghosh 71.71 5. Sri Subhamoy Sen 69.28 6. Smt. Mahua Biswas 69.85 7. Smt. Sarmistha Sarkar 62.43 8. Sri N.B. Baul 61 3. The Selection Board selected the respondent Nos. 2 to 6 for the Selection Post. The petitioner, although secured higher marks than 2 of the selected candidates, was not selected; hence, the petitioner filed an application before the CAT challenging her non-selection. The CAT found that the petitioner had secured higher marks than the other two, who have secured lesser marks, the petitioner should be declared as selected and her selection should be placed at Sl. No. 4 in the Select List. The Railways aggrieved by the said order has filed this writ petition. 4. It is the contention of the Railways that Rule 2190 provides that the selection should be made on the basis of seniority. The persons, who get more than 60% of marks would be eligible for empanelment and amongst them, according to the seniority in service; the selection is to be made. Accordingly, in the instant case, it is said that the 5 of the persons, who are senior to the respondent No. 1, although 2 of them scoring lesser marks are selected in view of Rule 219(j), which reads as follows: "Rule 219(j). Accordingly, in the instant case, it is said that the 5 of the persons, who are senior to the respondent No. 1, although 2 of them scoring lesser marks are selected in view of Rule 219(j), which reads as follows: "Rule 219(j). The names of selected candidates should be arranged in order of seniority but those securing a total of more than 80% marks will be classed as outstanding and placed in the panel appropriately in order of their seniority allowing them to supersede not more than 50% of total field of eligibility." 5. Per contra, Sri PK Tiwari, the counsel for the respondent No. 1 submits that Rule 215 deals with the appointment for the Selection Post. The provisions of Rule 215 are extracted hereunder: "215. Selection Post (a) Selection post shall be filled by a positive act of selection made with the help of Selection Boards from amongst the staff eligible for selection. The positive act of selection may consist of a written test and/or viva-voce test; in every case viva-voce being a must. The stuff in the immediate lower grade with a minimum of 2 years service in that grade will only be eligible for promotion. The service for this purpose will include service if any, rendered on ad hoc basis followed by regular service without break. The condition of two years service should stand fulfilled at the time of actual promotion and not necessarily at the stage of consideration. (b) The selection for promotion to a selection post shall be made on the basis primarily of merits. (c) Promotion to selection post shall be made by the competent authority in accordance with the recommendations of a Selection Board in the manner detailed in paragraph 216 below. If, in any case, such authority is unable to accept the recommendation, a reference shall be made to the General Manager, who may if necessary constitute a fresh Selection Board at a higher level and whose decision in the matter shall be final. (d) The Railway Board may adopt a procedure other than the one laid down in para 216 below while deciding individual cases of hardship. (e) Eligible staff upto 3 times the number of staff to be empanelled will be called for written and/or viva-voce test. (d) The Railway Board may adopt a procedure other than the one laid down in para 216 below while deciding individual cases of hardship. (e) Eligible staff upto 3 times the number of staff to be empanelled will be called for written and/or viva-voce test. The staff employed against fortuitous short term or stop-gap promotion to the immediate lower grade in the manner otherwise than in accordance with the regular approved method of promotion will not be eligible for consideration. It is desirable to hold written test as part of a selection in respect of all initial selection grade post in the different channels of promotion, but in every case a viva-voce test shall be held. If a written test is proposed to be held, advance intimation shall be given to all eligible candidates. (f)(i) The assessment of vacancies for selection posts within the cadre will improve the existing vacancies and those anticipated during the course of the next one year plus 20% 6f anticipated vacancies for unforeseen contingencies. For selection in the construction organisation, 50% of the number of posts which exist in the grade under consideration for a period of one year on the assessment date and which are likely to continue should be taken into account. For ex-cadre post, actual vacancies plus those anticipated in the next two years should be taken into account. (ii) The concept of anticipated vacancies referred to in (i) above should be deemed to connote the vacancies : on account of normal wastage (i.e., retirement or superannuation ), likely to be caused as a result of likely acceptance of notice for voluntary retirement, likely to be caused due to staff approved to go on deputation to other units, due to number of staff already empanelled for ex-cadre posting, due to creation of posts already sanctioned by the competent authority and vacancies arising out of the cases where staff are likely to go on transfer to other Railways Divisions during the period under consideration." 6. It is the contention that the Selection Post is based on merit-cum-seniority. Rule 215(b) categorically states that the selection for promotion to a Selection Post shall be made on the basis primarily of merit. Rule 219(g) also states that selection should be made primarily on the basis of overall merit, however, for guidance of Selection Board certain factors are given to take into consideration for assessment of merit. Rule 215(b) categorically states that the selection for promotion to a Selection Post shall be made on the basis primarily of merit. Rule 219(g) also states that selection should be made primarily on the basis of overall merit, however, for guidance of Selection Board certain factors are given to take into consideration for assessment of merit. It is submitted that Rule 219(j) deals with a situation of the placement of the seniority of the candidates, who are selected from the empanelled list and it is not that from the empanelled list, the persons, who are senior should be selected ignoring the merit. 7. Upon thorough consideration, we find that the Rules 215 and 219 emphasize that selection should be on the basis of merit. Rule 219(j) does not permit a less merited person to be selected merely on the basis of His seniority. Rule 219(g) deals with the empanelment of a candidate. It is clear that whoever get minimum 60 should be empanelled for the purpose of selection and amongst them, those who are more merited have to be selected and after the selection, Rule 219(j) comes into play after selection is made. Rule 217 says that seniority of selected candidate should be arranged according to their seniority that means that their earlier seniority of the selected candidates get protected irrespective of their merit. Rule 219(j) further says that if one gets 80% marks, he is entitled to superseded of their seniors and to be placed in the seniority list above the 2 of the immediate seniors, but that aspect is not germane for consideration in the instant case. 8. It is suffice to mention here that the selection process, according to the Rule, should be on the basis of merit and after the selection, the seniority of the selected candidates has to be placed as per their overall seniority and it is not as if that on the basis of their seniority, the empanelled candidates have to be selected. In that view of the matter, the order of the Tribunal does not call for interference. The writ petition is dismissed. Petition dismissed.