IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22 .01. 2008 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE S.R.SINGHARAVELU WRIT PETITION NO. 11233 OF 2007 and M.P.No.1 and 2 of 2007 Mr.Gautam Dass ... Petitioner Vs. 1. Union of India rep. by the Chief Personnel Officer, (ICF), Chennai-5. 2. The Senior Personnel Officer/ R & T (now STOAR), Integral Coach Factory, Chennai - 600 038. 3. The Deputy Chief Personnel Officer, O/o the CPO, Integral Coach Factory, Chennai-600 038. 4. M.Rajendran 5. Central Administrative Tribunal, Madras Bench, City Civil Court Building, Chennai-600 104. ... Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari to call for the records relating to the order passed by the Central Administrative Tribunal in O.A.No.408 of 2006 dated 16.10.2006 and quash the same. For Petitioner : Mr.L.Chandrakumar For Respondents : Mr.V.G.Suresh Kumar, ACGSC for R1-R3 Mr.P.V.S.Gridhar for R4 ******* https://hcservices.ecourts.gov.in/hcservices/ O R D E R S.R.SINGHARAVELU,J Aggrieved by the order dated 16.10.2006 passed by the Tribunal in R.A.No.5 of 2006 in O.A.No.543 of 2005 and O.A.408 of 2006 filed by the fourth respondent, the petitioner has filed this writ petition seeking to quash the said order. 2. The brief facts are as follows:- The applicant/4th respondent was promoted as against SC vacancy by the second petitioner as per the order dated 9.3.2004. One Smt.P.Neela approached the Tribunal in O.A.No.427 of 2004 against her non selection in the panel dated 26.2.2004. Consequent to the quashing of the Panel dated 26.2.2004 by the Tribunal in O.A.427 of 2004, a second panel dated 29.3.2005 was drawn on 21.4.2005. Since the fourth respondent had held the post for more than 2 years from 9.3.2004, he was allowed to continue as Chief Office Superintendent vide Office order dated 21.4.2005 and panel dated 28.5.2005 against a vacancy, which subsequently occurred in December 2004. Subsequently, one vacancy occurred in February, 2005 due to the retirement of Sri.V.Narayanan and a selection process was proposed for this vacancy. At this stage, one Maheswarlal Babu approached the Tribunal in O.A.No.543 of 2005 stating that filling up of one vacancy in Chief Office Superintendent by fourth respondent deprived him of an opportunity to appear for selection, where three candidates were called for only one vacancy. The Tribunal quashed the order empanelling the fourth respondent and directed that he has to be subjected to the selection process. Accordingly, promotion order issued in favour of fourth respondent was cancelled and he was reverted as Office Superintendent Gr.I. Subsequently, fourth respondent was promoted on ad hoc basis as Chief Office Superintendent against an existing vacancy as his juniors have already been promoted on ad hoc basis. An alert notice was issued to the eligible employees including the fourth respondent for selection to the post of Chief Office Superintendent on 15.3.2006. A letter dated 22.3.2006 was also communicated, intimating the date of written test to be held on 7.4.2006. At this stage fourth respondent approached the Tribunal in O.A.No.408 of 2006, seeking interim relief restraining the official respondents subjecting him to written test. However, the Tribunal passed an order restraining the official respondents from reverting the fourth respondent from the post of Chief Office Superintendent. Subsequently, the fourth respondent filed R.A.No.5 of 2006 in O.A.No.543 of 2005 and O.A.No.408 of 2006 seeking injunction restraining the official respondents from calling him for modified selection again for promotion to the post of Chief Office Superintendent, as he was already selected for the SC vacancy meant for 2003, pending disposal of the application. The Tribunal after considering the facts and circumstances of the case passed an order https://hcservices.ecourts.gov.in/hcservices/ observing that the Office Order dated 21.4.2005 in so far as the exclusion of the fourth respondent from being adjusted in the SC vacancy is illegal and consequently O.A.408 of 2006 is allowed as prayed for. Based on the order passed by the Tribunal in the above R.A., Sri.Pughazendhi who was selected against SC point have been shown against UR and the name of the fourth respondent was included in the panel against SC point. The petitioner being the last UR candidate in the panel was deleted from the panel since Sri.Pughazendhi who was originally selected against SC point has been shown against UR point. 3. In the counter affidavit filed on behalf of the third respondent it is submitted that initially, based on the cadre of restructuring orders dated 9.10.2003, a panel consisting of 6 employees was published wherein Smt.P.Neela, the senior-most employee did not find a place. Based on the Tribunal's order in O.A.No.427 of 2004, filed by Smt.P.Neela for her non-inclusion in the panel, a revised panel including the name of Smt.P.Neela and deleting the name of Shri.Rajendran was published vide panel dated 29.3.2005. The Tribunal passed orders in this O.A. to include the name of Shri.Rajendran against the only SC vacancy and Sri.Pughazhendi shown against the UR vacancy. As a result of implementation of the orders in this O.A., the petitioner's name had to be deleted from the revised panel dated 19.12.2006. Hence, the revision of panels three times was as per the orders of the judiciary and not an irregularity committed by the Railway Department. 4. We have heard the learned counsel for the petitioner as well as the learned Additional Central Government Standing Counsel appearing for the Respondents 1 to 3 and the learned counsel appearing for the 4th Respondent. 5. Challenging the order dated 16.10.2006 in R.A.No.5 of 2006 in O.A.No.543 of 2005 and O.A.No.408 of 2006 filed by Rajendran, (4th Respondent), this writ petition was filed by one Gautam Dass. The seniority position of the said persons can be understood from the following table. https://hcservices.ecourts.gov.in/hcservices/ ---------------------------------------------------------------------- Sl. Name Increment Promn. Existing TR/PR/RV to No. Emp.No. Dt. in the Roster Pay in Scale Pay in Scale Shri/Smt. Lower Gr. Sl.No. & Designation Designation reserved Unit/T.No. To Unit. against ---------------------------------------------------------------------- 1. Neela P 1.4.2003 6(UR) 7900-10500 8125 Chief Office Supdt. Promotiond OS Gr-I 2. Maheswari Murthy.K 1.4.2003 8(UR) -do- -do- Promotion 3. Narayanan.V 1.5.2003 9(UR) -do- -do- Promotion 4. Pugazhendi.V 1.10.2003 7(SC) -do- -do- Promotion Against SC Vacancy 5. Saradamoni.K 1.12.2003 4(UR) -do- -do- Promotion 6. Gautamdas.K 1.12.2003 5(UR) -do- -do- Promotion 7. Rajendran.M 1.07.2003 10(UR) -do- -do- ---------------------------------------------------------------------- 6. Employees at Serial Nos.1 to 4 were posted against the vacancies arisen out of restructuring and given benefit of the promotion with effect from 1.11.2003 whereas the junior employees at Serial Nos. 5 & 6 were posted against the normal vacancies existing on 1.11.2003 and they will get promotion and higher pay from 9.3.2004. Serial No.7 is deemed to have been empanelled against the second vacancy, which occurred in December 2004 and allowed to continue. 7. Originally, there was issuance of first panel which is dated 26.2.2004 empanelling 6 employees for the post of Chief Office Superintendent. They are:- 1. Smt.Maheswari Murthy 2. Sri V.Narayanan 3. Sri V.Pughazendhi (SC) 4. Smt.Saradamoni 5. Sri K.S.Gauthamdas (Writ Petitioner) 6. Sri M.Rajendran (SC) 8. As per the order dated 9.3.2004, M.Rajendran (4th Respondent) was promoted as against SC vacancy. P.Neela, who was not selected in the above panel filed O.A.427 of 2004 on the file of the Central Administrative Tribunal, Madras Bench, Madras, to quash the above said https://hcservices.ecourts.gov.in/hcservices/ first panel. 9. Second panel dated 29.3.2005 was drawn on 21.4.2005 deleting the name of M.Rajendran (4th Respondent). However, he was allowed to continue as Chief Office Superintendent by order dated 21.4.2005, as he was holding the post for more than two years from 9.3.2004. 10. Subsequently, a vacancy arose in December 2004 for which a panel dated 28.5.2005 was prepared. Thereafter, upon the retirement of V.Narayanan a vacancy arose in February 2005 and selection process was mooted therefor. At this stage one Maheswarlal Babu filed O.A.No.543 of 2005 objecting the filling up of one vacancy in Chief Office Superintendent by 4th Respondent and stating that thereby he was deprived of an opportunity to appear for selection. The Tribunal quashed the order empanelling the fourth respondent viz., M.Rajendran and directed that he has to be subjected to the selection process. So the promotion order issued in favour of fourth respondent was cancelled and he was reverted as Office Superintendent Grade I. 11. Subsequently, 4th Respondent was promoted on ad hoc basis as Chief Office Superintendent against an existing vacancy as his juniors were already promoted on ad hoc basis. 12. An alert notice dated 15.3.2006 and a communication dated 22.3.2006, for the written test to be held on 7.4.2006 were communicated to the eligible employees including the fourth respondent for selection to the post of Chief Office Superintendent. 13. Aggrieved over the above said communication the fourth respondent has filed O.A.No.408 of 2006 on the file of the Tribunal, seeking interim relief restraining the official respondents from subjecting him to written test. The Tribunal passed an order restraining the official respondents from reverting the fourth respondent from the post of Chief Office Superintendent. Subsequently, he has also filed R.A.No.5 of 2006 seeking injunction restraining the official respondents from calling him for modified selection again for promotion to the post of Chief Office Superintendent. According to the fourth respondent he was already selected for SC vacancy meant for 2003, therefore, he should not be again subjected for modified selection. 14. The Tribunal after considering the facts and circumstances of the case passed an order observing that the office order dated 21.4.2005 in so far as the exclusion of the fourth respondent from being adjusted in the SC vacancy is illegal and consequently allowed the O.A.No.408 of 2006. When once the fourth respondent's adjustment in SC vacancy was upheld in O.A.No.408 of 2006, Pughazendhi, who was selected against SC point was shown against UR. When once Pughazendhi, who was originally selected against SC point was shown against UR https://hcservices.ecourts.gov.in/hcservices/ point, the petitioner being the last person in the UR point was deleted from the panel. It is aggrieved over the same the petitioner has come forward with this writ petition by pointing out the incorrectness in the order passed in O.A.No.408 of 2006 observing that the office order dated 21.4.2005 in so far as exclusion of the fourth respondent from being adjusted in the SC vacancy is illegal. 15. It is not in dispute that Pughazendhi was selected on his own merit in the panel dated 9.3.2004; but was adjusted against the UR vacancy on the ground that fourth respondent M.Rajendran also belonging to SC community was adjusted against SC vacancy in the promotion order dated 9.3.2004. 16. The writ petitioner can succeed only if he shows that Pugazhendi, who was a SC candidate although was selected on merit should have been adjusted only in the SC vacancy and such an order is very much necessary when the promotion of fourth respondent M.Rajendran was wrongly adjusted against SC vacancy. 17. In order to show that Pughazhendi, who happened to be a SC candidate should have been adjusted against SC vacancy, on behalf of the writ petitioner reliance was placed upon the following clarifications and the Railway Board's letter dated 7.9.2002. Such of the letter (Annexure R-4 in OA 543/05) sets out the procedure for promotion of the SC/ST candidate on their own merit. The relevant para is extracted below: "(ii) If an unreserved vacancy arises in cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point." 18. The further clarification given on 6.5.2005 which is long after the preparation of the panel dated 9.3.2004 stated in para 2 as follows:- " It is also clarified that since in the case of promotions by Non-selection, promotions are made on the basis of seniority-cum-fitness and the concept of merit is not involved in such promotions, instructions contained in Board's letter dated 7.8.2002 and 20.6.2003 referred to above do not apply to the promotions made by Non-selection method. " https://hcservices.ecourts.gov.in/hcservices/ 19. By relying upon the clarification above mentioned it was asserted on behalf of the writ petitioner that appointment of Pughazhendi to the post would have to be adjusted against the reserved point, inasmuch as the Railway Board's letter dated 7.8.2002 enabling such adjustment against unreserved point in so far as it is a non- selection promotion will not get applicable by virtue of the clarification dated 6.5.2005. 20. In this context the Tribunal in para 17 of its order dated 16.10.2006 has posed a question, "though the clarification letter of the Board dated 6.5.2005 says that merit is not involved in the non- selection promotion. Does it mean that SC/ST candidates who are entitled to be considered as per their seniority position need not be accommodated as per their seniority and rank and has to be accommodated only in the SC vacancy? The answer can only be 'No'. 21. We have carefully analysed the above position and agree with the findings of the Tribunal, which has got support from the following decisions: (1) Sawhney v. Union of India 1992 Supp (3) SCC 217, wherein it was held that SC candidates selected on the basis of their own merit need not be counted against the quota reserved SC candidate. They will be treated as open competition candidate. (2) In R.K.Sabharwal v. State of Punjab 1995 (3) SLJ 227, wherein it was held that the reserved category candidates can compete for the non reserve posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. (3) In Union of India v. Virpal Singh Chauhan 1995(6) SCC 684, wherein it was held that candidates selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. (4) In Ritesh R.Sah v. Dr.Y.L.Yamul and Ors. (1996)3 SCC 253, wherein it was held that a student who is entitled to be admitted on the basis of merit, though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. (5) In Union of India v. Satya Prakash & Ors. 2006 (3) SLJ 74, wherein it was held as follows: " In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. https://hcservices.ecourts.gov.in/hcservices/ on merit) and not as a reserved category candidate recommended by the Commission by resorting to relaxed standard." 22. As observed in the above decisions it was right on the part of the Tribunal to have held that, "there is no scope for the department to plead that in case of non-selection promotion, it is open to them to adjust the SC candidates on their liking. The senior most available SC candidates beyond the number of reservation vacancies is to be adjusted in the quota reserved for them." 23. Therefore, the distinction made by the department on the basis of clarification dated 6.5.2005 is contrary to the law laid down by the Hon'ble Supreme Court and the earlier Railway Board's circulars. As a result the adjustment of Pughazhendi against UR vacancy is correct since Rajendran who happens to be the senior than Pughazhendi and belongs to SC community is adjusted against SC point especially in the absence of any other candidate of the same category is found correct. When these two premises go against the writ petitioner's contention the claim of the writ petitioner cannot be countenanced. 24. The adjustment of Rajendran the fourth respondent against the SC vacancy is also not against the order passed in O.A.No.427 of 2004 filed by one Neela, to quash the panel dated 26.2.2004, as Rajendran was not a party thereto; had he been made a party in O.A.No.427 of 2004, he would have succeeded in establishing that he should not be disturbed even if Smt. Neela the applicant therein have not claimed for either of the vacancies in which he had staked his claim. Even in O.A.No.543 of 2005 preferred by Maheshwarlal Babu against filling up of one vacancy in Chief Office Superintendent by fourth respondent what was contemplated was only maintainability of the deemed empanelment of Rajendran and not about his adjustment towards SC vacancy. Therefore, the order passed in the above O.A. also do not stand in the way of adjustment of name of fourth respondent (M.Rajendran) against SC vacancy especially when there was no claim made by the person belonging to the same category in community. https://hcservices.ecourts.gov.in/hcservices/ 25. Thus, looking at in any angle the adjustment of fourth respondent against the SC vacancy is found correct. The subsequent order of adjustment of Pughazhendi against UR vacancy is also found correct. Therefore, we see no reason to interfere with the order of the Tribunal. There is no merit in the writ petition. The writ petition fails and is dismissed accordingly. No order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gr. To 1. The Chief Personnel Officer, (ICF), Chennai-5. 2. The Senior Personnel Officer/R & T (now STOAR), Integral Coach Factory, Chennai - 600 038. 3. The Deputy Chief Personnel Officer, Integral Coach Factory, Chennai-600 038. 4. The Registrar,Central Administrative Tribunal, Madras Bench, Chennai-600 104. +1cc to Mr.L.Chandrakumar, Advocate Sr 2498 +1cc to M/s. P.V.S.Giridhar Associates Sr 2150 MA (CO) km/28.1. W.P.No.11233 of 2007 https://hcservices.ecourts.gov.in/hcservices/