JUDGMENT SHIVAKANT PRASAD, J. Challenge in this application is the order dated 23rd December, 2009 passed by the Central Administrative Tribunal, Calcutta Bench in O.A. No. 903 of 2007 along with O.A. No. 578 of 2006 and O.A. No. 286 of 2007. Chronology and events leading to the instant writ petition is that the applicant joined in the Railway Service on 18.5.1995 as a Trackman under SE/P.Way/KN/E. Rly. and was fully eligible for promotion as Permanent Way Supervisor as his performance was without any adverse remark in terms of Notification published on 03.6.2005 vide No. 504/6/PT. III(Dup)E/12 for the selection of P.Ws (Permanent Way Supervisors) in the pay scale of Rs. 4500/- to 7000/-in the Civil Engineering Department under Sealdah Division. Written Test was held on 18.2.2006 at Sr. DEN(C)/SDAH Office under Eastern Railway in which 16(sixteen) numbers of persons appeared for two posts. After written test viva-voce test should have been held according to Departmental rule. The petitioner further contended that without any information to any candidate suddenly the Sr. DEN(C)/SDAH informed SE/P. Way/KWJ to release two selected persons who were spared in terms of the release order dated 21.4.2006. Result was published after completion of Selection Test on 03.4.2006 vide No. SDEN/CON/CR/Pt.-II (Working Report) and the name of the applicant appeared at Sl. No. 2 in the said list but promotion to the petitioner was not considered whereas Siddhartha Majumdar at Sl. No. 5 of the said list was given promotion. The said Working Report at P-5 in respect of the Staff as published by the Sr. Divisional Engineer is reproduced as under— Sl. No. Name of the Candidates Date of Appointment Marks obtained 1. Sri Shiladitya Chattopadhyay, Trackman/ KNJ for 2003-04, 2004-05 & 2005-06. (Selected Candidate at Sl. No. 1) 09.9.1997 95 2. Sri Debasish Kr. Roy, Trackman/KNJ for 2003-04, 2004-05 & 2005-06. (Petitioner) 23.5.1995 73.32 3. Sri Kanak Kumar Sardar, Gangman/ SDAH for 2003-04, 2004-05 & 2005-06. 1993 69 4. Sri Prabir Bhowmick, Gateman/CP for 2003-04, 2004-05 & 2005-06. 01.10.1977 69 5. Sri Siddhartha Majumdar Trackman/SDAH for 2003-04, 2004-05 & 2005-06. (Selected Candidate at Sl. No. 2) 2001 93.5 On perusal of the same it reflects that the position of the petitioner is at Sl. No. 2, keeping in view his seniority as he had joined the service in the year 1995 but while granting promotion the said seniority was not taken into consideration. (Selected Candidate at Sl. No. 2) 2001 93.5 On perusal of the same it reflects that the position of the petitioner is at Sl. No. 2, keeping in view his seniority as he had joined the service in the year 1995 but while granting promotion the said seniority was not taken into consideration. It is a case where the rule relating to promotion on the count of seniority ought to have been looked into in order to provide appointment on promotion to the petitioner in as much as he had secured 73.32 marks in the written test and further fulfilled all the criteria as prescribed by Railway Establishment Rules relating to allocation of marks. The said Rule empowers the Selection Board the criteria for allotting marks to eligible candidates after taking the following factors into account as herein below:- Factors/Headings Maximum Marks Qualifying Marks (i) Professional ability 50 30 (ii) Record of Service 30 15 (iii) Seniority 20 15 Total 100 60 From the aforesaid, it will be seen that the Railway Board in order to ensure more transparency and to exclude subjectivity has done away with the viva-voce test altogether and 20 marks which were earlier allotted for viva-voce to adjudge Personality, Address, Leadership and Academic/Technical Qualifications, have been distributed by increasing the marks against the Record of Service from 15 to 30 and Seniority Marks from 15 to 20. Assessment under the head Personality, Address, Leadership and Academic/ Technical Qualifications should be based on the assessment already available in the Confidential Reports of the concerned candidate, as reflected by the entries against various columns of the format of the Confidential Report. Thus, taking into consideration the allocation of marks, we find from the above tabular representation that the applicant was a senior staff and also obtained suitability having obtained 73.32 marks for appointment to the post of Superintendent P.Way based on seniority-cum-merit. We, are in agreement with the contention of Mr. D. Purkayastha, the learned Counsel for the applicant that the said post is a non-selection post under group ‘C’. Hence, promotion is primarily based on Seniority-cum- Merit and not on the basis of Merit-cum-Seniority as provided at page 377 of Railways Establishment Manual, 2014 in as much as no notification has been produced by the Railway to the contrary to show that those promotional posts were declared as “selection post. Hence, promotion is primarily based on Seniority-cum- Merit and not on the basis of Merit-cum-Seniority as provided at page 377 of Railways Establishment Manual, 2014 in as much as no notification has been produced by the Railway to the contrary to show that those promotional posts were declared as “selection post. It is contended by the counsel for the petitioner that the selection process was concluded with written test held on 18.2.2006 without Viva-voce following the selection process for preparing the panel/selection list for appointment prescribed in the guidelines being C.P.O. Circular No. 217/1999. Secondly, no panel/selection list was published before issuance of appointment letter dated 20.4.2006 which is mandatory as in absence of publication of panel/selection list, the selection process is not complete. So before publication of select list or panel no appointment letter could be issued in view of the legal proposition laid in case of the State of A.P. Vs. D. Dastagiri reported in (2003) 5 SCC 373 with the observation in paragraph 4 of the cited decision. The rule 215, 216 of the Indian Railways Establishment Manual (Volume 1) is concerned with the Selection posts and if the promotional posts are selection posts then the promotion will be on the basis of merit cum seniority only. Rule 219 of the Indian Railways Establishment Manual (Volume-1) postulates the procedure to be adopted by the selection Board when the selection post is to be filled up, whereas the promotion to non-selection posts has been dealt at page 377 of the Railways Establishment Rules and allied matter, 2014 which specifies that the promotion to non selection post is to be made on the basis of seniority cum merit only. The respondent in the letter dated 29.6.2009 at page 30 of the writ petition has admitted that the selection was done following the guidelines being CPO: Circular No. 217 of 1999. Mr. Purkayastha further submitted that the respondents violated selection process adopted by them, which are apparent para 5, para 5.1, para 114.4, 11.5 para 11.5.2 of the guidelines being Circular No. 217 of 1999. Now the respondents cannot be permitted to say that they followed other circular for the purpose of selection and appointment of the junior according to merit. In support of his submission Counsel for the petitioner relied on a decision in case of K. Manjusree Vs. Now the respondents cannot be permitted to say that they followed other circular for the purpose of selection and appointment of the junior according to merit. In support of his submission Counsel for the petitioner relied on a decision in case of K. Manjusree Vs. State of A.P., AIR 2008 SC 1470 wherein it is provided that Selection Criteria has to be adopted and declared at the time of the commencement of the recruitment process. The rules of the game cannot be changed after the game is over. (See. In Maharashtra State Road Transport Corporation Vs. Rajendra Bhimarao Mandve reported in 2001(10) SCC 51 ) The petitioner admittedly got more than minimum qualifying marks i.e. 73.32 out 100 marks. Since Rules of promotion to non selection post is based on seniority cum merit, the comparative assessment on merit is not permissible. The petitioner made a representation dated 02.5.2006 alleging manipulation by Selection Committee but the authority paid no heed to his representation. Thereafter, the petitioner filed an original application before the Hon’ble Tribunal being O.A. No. 479 of 2006 and the same was disposed on 24.5.2005 with direction to serve copy of application upon the concerned respondents and an order dated 29th June, 2006 was passed vide No. 504E/6/Pt.III (Dup/E-12). The respondent authority issued a letter vide No. E. Ngg. Court Case/220/SC dated 25.7.2006 stating that the competent authority decided that since representation has not been submitted to official respondent within stipulated date in pursuance of CAT/CAL’s order dated 24.5.2006 respondent is not in a position to consider the case. Learned Counsel for the petitioner had relied on a decision of B. V. Sivaiah and Others Vs. K. Addanki Babu and Others reported in (1998) 6 Supreme Court Cases 720 wherein the criteria for promotion on the basis of seniority-cum-merit has been dealt with and held thus— “Seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance which in turn may be based on service record and interview and prescribing the minimum marks which would entitled a person to be promoted on the basis of seniority-cum-merit. While applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in select list for appointment. Such determination of seniority confers certain rights and the principles of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot therefore be said that seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service.” The Hon’ble Apex Court as regards the principle of merit-cum-seniority observed in paragraph 9 as under: “9. The principle of “merit-cum-seniority” lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In the context of Rule 5(2) of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed that “selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority” Mathew, J. in Union of India v. Mohan Lal Capoor has said: (SCC p. 856, para 37) For inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale.” Thus, the principle of “merit-cum-seniority” lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. On the other hand, as between the two principles of seniority and merit, the criterion of “seniority-cum-merit” lays greater emphasis on seniority but an officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. In order to decide the rival submissions it is necessary to take note of the relevant rules governing the promotion of Group-‘C’ Staff relating to non-selection post which are being reproduced as under:— Rule 214. (a) Non-selection posts will be filled by promotion of the senior most suitable Railway servant; suitability whether an individual or a group of Railway servants being determined by the authority competent to fill the posts on the basis of record of service and/or departmental tests, if necessary. A senior Railway servant may be passed over only if he/she has been declared unfit for holding the post in question. (b) When, in filling of a non-selection post, a senior Railway servant is passed over the authority making the promotion shall record briefly the reason for such supersession. (c) In respect of promotion to non-selection posts, the following principles should be followed: (i) Staff in the immediate lower grade with a minimum service of two years in that grade will only be eligible for promotion, unless a longer of service in the lower grade has been stipulated as a condition of eligibility for promotion in any particular category. The service for this purpose includes service, if any, rendered on adhoc 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. The service for this purpose includes service, if any, rendered on adhoc 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. If by virtue of the above rule, a junior is eligible for such promotion, his senior will also be eligible for such promotion even though he might not have put in a total service of two years, or more (if stipulated in a particular category in the lower grade).....” Rule 215 provides for guidelines for promotion in case of Selection Posts as under: (a) Selection post shall be filled by a positive act of selection made by Selection Boards, from amongst the staff eligible for selection. The positive act of selection shall consist of only written test to assess the professional ability of the candidates, for which reasonable advance notice should be sent, except in the case of selection for promotion to posts in the categories of Teachers, Law Assistants, Physiotherapists, Telephone Operators, Instructors in zonal training school etc. Stenographers, Chief typists, Protocol Inspectors, Receptionist, Publicity/Advertising Inspectors, Photographers /Cameraman and Postal superintendents where the positive act of selection shall consist of both written test and viva-voce test. The staff in the immediate lower grade with a minimum of two years service in that grade only will be eligible for promotion, unless a longer length of service in the lower grade has been stipulated as a condition of eligibility for promotion in a particular category. The service for this purpose includes 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. If by virtue of the above rule, a junior is eligible for promotion and not necessarily at the stage of consideration. If by virtue of the above rule, a junior is eligible for promotion, his senior will also be eligible for such promotion, even though he might not have put in a total service of two years, or more, (if stipulated in particular category in the lower grade). If by virtue of the above rule, a junior is eligible for promotion, his senior will also be eligible for such promotion, even though he might not have put in a total service of two years, or more, (if stipulated in particular category in the lower grade). Provided that the positive act of selection for promotion to the post of Loco Pilot (Passenger), Passenger Guard and Motorman will consist of viva-voce only to assess the professional ability of the candidates, after passing the prescribed promotional courses. (b) The selection for promotion to a selection post shall be made on the basis primarily of merits. (c) Promotion to a selection post shall be made by the competent authority in accordance with the recommendations of a Selection Board in the manner detailed in paragraph 219 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 219 below while deciding individual cases of hardship. (e) Eligible staff up to 3 times the number of staff to be empanelled will be called for the selection. The staff employed in the immediate lower grade on fortuitous basis will not be eligible for consideration.” It is argued on behalf of the respondents Railway authorities that Selection of Supervisor P.Ws in scale Rs. 4500-7000/- (RSRP) was conducted as per para 11.6.4 of CPO’s Sl. No. 217/1999 which provides that the final panel should be drawn up in order of seniority from amongst those who secured a maximum of 60% marks in the professional ability and 60% marks in the aggregate; provided that those securing a total of more than 80% marks will be classed as outstanding and placed at the top of the panel in order of seniority and that there is no biasness in the selection procedure. Our attention is invited to the result of written test held on 18.02.2006 in respect of 05 candidates who secured 60% and more marks in professional ability and 60% and more in aggregate as given below: Name of the candidates Professional Ability (Written Test) (50) Personality, Address, leadership, academic/tech. Our attention is invited to the result of written test held on 18.02.2006 in respect of 05 candidates who secured 60% and more marks in professional ability and 60% and more in aggregate as given below: Name of the candidates Professional Ability (Written Test) (50) Personality, Address, leadership, academic/tech. Qualification (30) Record of Service (20) Marks obtained Kanak Kumar Sardar 31 23 15 69 Prabir Bhowmik 31.5 23 15 69 Debasish Kr. Roy 31 24.66 17.66 73.32 Shiladitya Chattopadhyay 46 29 20 95 Siddhartha Majumdar 44.5 29 20 93.5 It is pointed out further that in view of the above, Sri Shiladitya Chattopadhyay and Sri Siddhartha Majumdar being classified as outstanding were promoted against the 2 nos. of vacancies notified and that the representation was received beyond the target date (10.06.2006) fixed by Hon’ble CAT/Kolkata vide order dated 24.05.2006. Thus, there was no scope for consideration of the petitioner’s case. We are unable to agree with such submission on the part of the Railways authority because record shows that the petitioner submitted a representation to all concern on 07.6.2006 as directed by learned Tribunal for redressal of his grievance. It clearly goes to show a bias mind on the part of the authority. It is submitted by the learned counsel for the petitioner that in giving promotion, there was contradiction and biasness in the selection process in as much as the selection of supervisor P.Ws in scale of Rs. 4500-7000/- (RSRP) was conducted in contravention of para 11.6.4 of the CPO’s Sl. No. 217/1999. The result showing the position of five candidates is not a genuine one inasmuch as awarding of marks in respect of the column “Record of Service” categorically shows the biasness of awarding marks as the petitioner was awarded only 15 marks despite being the senior most contender and be awarded not less than 20 marks. The guidelines as embodied in the C.P.O. serial No. 217/99 specifically provides that 15 marks should be allotted towards the seniority but in the present case no marks towards seniority was allotted in favour of the petitioner and in case if such marks have been allotted, the petitioner would have been at the top of the panel. The guidelines as embodied in the C.P.O. serial No. 217/99 specifically provides that 15 marks should be allotted towards the seniority but in the present case no marks towards seniority was allotted in favour of the petitioner and in case if such marks have been allotted, the petitioner would have been at the top of the panel. The learned Tribunal vide order dated 13.6.2008 dismissed the original application before it with the observation that selection has been made on the basis of CPO’s Circular No. 217/99 according to which, a person has to secure 60% marks in the professional ability and 60% in aggregate and those securing 80% marks will be treated as outstanding and will be placed on top of the list and as Sri Shiladitya Chattopadhyay and Sri S. Majumdar secured highest marks which is more than 80%, they were placed on top of the list and they were offered appointment. On behalf of the respondents Mr. Malay Kumar Das, learned Counsel submitted that no viva-voce test is required to be held in terms of the CPO Circular 94/03 as per para 5.1 of guidelines for personal relating to para 215(a) of IREM. Vol. and further invited our attention to guidelines in RBE No. 137/03 dated 07.8.2003 which provides as under: “3. Pursuant to deliberations with the staff side, Ministry of Railways have considered the matter carefully and have decided as under— There will be no viva-voce in the departmental selections except in the case of selection, if any, for promotion to the post in the categories of Law Assistant, Physiotherapists, Telephone Operators and Teachers. For these categories, viva-voce is in vogue in the recruitment through Railway Recruitment Boards (RRBs); While the objective type questions in the written test held as part of selection for promotion to all selection posts will be retained, the concept or negative marking for wrong answers to the objective type questions as produced vide ACS No. 130 ibid stands withdrawn. It is also submitted that in terms of Advance Correction Slip No. 150, IREM, Volume-I (1989 Edition) Chapter-II, Section BRules governing the promotion of Group-‘C’ staff, para 215 has been amended as follows— Selection post shall be filled by a positive act of selection made by Selection Boards, from amongst the staff eligible for selection. It is also submitted that in terms of Advance Correction Slip No. 150, IREM, Volume-I (1989 Edition) Chapter-II, Section BRules governing the promotion of Group-‘C’ staff, para 215 has been amended as follows— Selection post shall be filled by a positive act of selection made by Selection Boards, from amongst the staff eligible for selection. The positive act of selection shall consists of only written test to assess the professional ability of the candidates, for which reasonable advance notice should be sent, expect in the case of selection for promotion to posts in the categories of Teachers, Law Assistants, Physiotherapists and Telephone Operators, where the positive act of selection shall consist of both written test and viva-voce test. Accordingly, the learned Tribunal arrived at a finding that there is no infirmity in the promotion order which has been given on the strength of written test as viva-voce test is no longer required as per the above circular. The posts were filled up on the basis of Limited Departmental Competitive Examination as per para 143 of IREM Vol. I. Those who have got 80% or more viz. The successful candidates since they were classed as outstanding were selected. We are of the considered view that the learned Tribunal has misconstrued the Railway Circular. It is true that those candidates who secure 80% or more marks shall be classed as “Outstanding” and placed at the top of the list of selected candidates but at the same time it has been decided by Railway Board that the employees categorised as “outstanding” should not be allowed to supersede more than 50 per cent the number of their seniors in the total field of eligibility.[R.B. No. E(NG) 1-76 PM1/142 of 25-7-79] (N.R., S.N. 7359) and also provided in the para 5.1 of guidelines that the names of candidates selected for empanelment should be arranged in the order of seniority and those securing 80% marks or more in the aggregate should be classified as outstanding and be allowed to supersede 50% of the number of his seniors in the field of eligibility. For example, if for forming a panel of four, 12 persons have been called, they will be arranged in seniority as A,B,C,D,E,F, G,H,I,J,K and L. Suppose B,D and K have been categorised as “outstanding” and A,E,F,H,I and A,E,F,H,I and L have been found “fit” but not outstanding and others failed to obtain qualifying marks, in that case, the panel of four will consist of A,B,D and E, B cannot go up as he is entitled to gain only half a place, K who is also categorised as outstanding cannot gain half of 10 i.e. 5 because E is sixth above K and as such K cannot go above E. [R.B. No. E(G) I-76 PM 1/142 of 25-7-79 and 17-10-79] (N.R., S.N. 7443). Mr. Purkayastha has also relied on a decision of Sher Singh Vs. Surendar Kumar, 1998 (9) SCC 562 para 3 & 5 wherein it has been held that promotions made by adopting criterion of merit-cum-seniority whereas criterion of seniority-cum-merit should have been followed the promotion were held invalid. [see. also the case of Hargovind Yadav, 2006 (6) SCC 149] Bearing in mind the principles of law laid in the above cited decisions and considering the facts and circumstances of the instant case, and the guidelines for promotion to non-selection posts as noted above, this Court finds that the petitioner had qualified having obtained more than 60% marks on account of merit and suitability and is undoubtedly senior in service to the private respondents. Therefore, his case of promotion to the post in question ought to have been considered by the respondent authority. Thus, we find that the promotion of private respondent no. 7 placed at serial 5 in the panel should not have been given promotion. Accordingly, we hold that the learned Tribunal below failed to construe the guidelines in its right perspective and the judgement impugned is not tenable in law and fact as the tribunal has failed to appreciate that the respondent authorities most illegally, arbitrarily and motivatedly given promotion to the junior thereby superseding the petitioner who is admittedly much senior. In view of our discussion we hereby set aside the judgment and direct the Railway authority to reconsider the inter-se seniority of the petitioner and further to consider His case for promotion to the post of Superintendent Permanent Ways within two months from the date hereof. In view of our discussion we hereby set aside the judgment and direct the Railway authority to reconsider the inter-se seniority of the petitioner and further to consider His case for promotion to the post of Superintendent Permanent Ways within two months from the date hereof. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.