IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No: 3838-CAT of 2002 Date of Decision: March 10, 2008 Union of India ....Petitioner Versus Sarup Singh and another ...Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MR JUSTICE T.P.S. MANN Present: Mr Puneet Jindal, Advocate, for the petitioner. Mr H.S. Saini, Advocate, for respondent No. 1. JUDGMENT M.M. KUMAR, J. This petition is directed against order dated 6.12.2001 (P-1), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) in Original Application No. 967/PB of 1997 (for brevity, ‘OA’). The Tribunal has allowed the OA and quashed order dated 25.4.1997 (P-11), whereby the representation made by respondent No. 1 was rejected. In the representation, he had claimed that he should be given promotion as Office Superintendent-II (OS-II) without requiring him C.W.P No. 3838-CAT of 2002 to undergo any selection process on his mutual transfer from Diesel Component Works, Patiala (for brevity, ‘DCW, Patiala’) to Railway Coach Factory, Kapurthala (for brevity, ‘RCF, Kapurthala’). The petitioner has given two reasons for rejection of his representation viz. (a) respondent No. 1 on his own option and mutual consent was transferred to RCF, Kapurthala from DCW, Patiala and his seniority was accordingly fixed; and (b) before taking the examination, he did not raise any objection about seniority and took the examination without any complaint, in which he could not succeed. Brief facts of the case are that respondent No. 1 was substantive holder of the post of Head Clerk in DCW, Patiala. He was promoted from the post of Head Clerk to that of OS-II on provisional basis, vide order dated 19.3.1993 (P-4), and his name was empanelled. Thereafter, respondent No. 1 was given regular promotion as OS-II, vide order dated 9.4.1993 (P-5), in the pay scale of Rs.1600-2660. The aforementioned order was passed on the basis of Railway Board's letter dated 27.1.1993 and 18.3.1993. However, respondent No. 1 sought mutual transfer from DCW, Patiala to RCF, Kapurthala and moved an application on 4.5.1993, stating that he was prepared to go as Head Clerk in RCF, Kapurthala. Even a joint application along with signatures of one Smt. Jyoti Sharma, Head Clerk in RCF, Kapurthala was filed. In pursuance of the aforesaid joint application, the petitioner passed an order dated 22.6.1993 (P-7), reverting respondent No. 1 to the post of Head Clerk in the pay scale of Rs. 1400-2300/- and relieved him on mutual transfer with Smt Jyoti Sharma, Head Clerk, in the same pay scale of RCF, Kapurthala, 2 C.W.P No. 3838-CAT of 2002 with instructions to report to SPO, RCF, Kapurthala. It was made clear that the concerned staff would accept seniority in the new unit as per existing Rules, as applicable for mutual exchange and that he would not be entitled to any joining time, pass, transfer allowance etc. When after his joining at RCF, Kapurthala, a selection process for promotion to the post of OS-II was held, the petitioner took written examination and the result of the same was declared on 19.10.1996 (P-9). The name of respondent No. 1 figured at Sr. No. 1 in the list of candidates. He secured less than 60% marks but he was declared eligible for viva-voce test after assigning him notional seniority marks. However, in viva-voce test, respondent No. 1 failed. On an application filed by respondent No. 1, the Tribunal placed reliance on a Master Circular No. 11, dated 18.10.1991 and proceeded to allow the OA of respondent No. 1, by observing as under: “The aforesaid instructions are quite clear. Once a Railway servant has officiated against a non-fortuitous vacancy in his turn on the panel, in the event of his vacating the post for reasons of transfer etc., he is not required to appear again for fresh selection. Applicant having been promoted and officiated as OS-II for a period of 3 months was definitely not required to appear for fresh selection as OS-II, notwithstanding the fact that he had joined RCF in the lower post of Head Clerk.” The Tribunal further placed reliance on a judgment of Hon'ble the Supreme Court in the case of R.C.Srivastava v. Union of India (SLP No. 9866 of 1993) and another judgment rendered by it 3 C.W.P No. 3838-CAT of 2002 in the case of Rakesh Kumar v. Union of India and others (OA No. 1189/JK/96, decided on 17.4.1997). On the basis of aforementioned judgments, the Tribunal gave the following reasons to allow the OA: “On the basis of the aforesaid judgments, this Bench also finds itself in agreement with the contention of the learned counsel that merely failure in the viva-voce would not debar the applicant from being empanelled for the post of OS-II. However, we have already held above that applicant was not required to appear in the fresh selection in 1996 and he should have been straightway empanelled. In view of the above, the OA is allowed and the order Annexure A-1 is quashed. Respondents are directed to include the name of the applicant in the panel of 1996 at the appropriate place and give him promotion from the date his immediate junior has been promoted as OS-II with all consequential benefits.” Mr Puneet Jindal, learned counsel for the petitioner has submitted that once respondent No. 1 has given up his promotion by selection as OS-II, which he had acquired in DCW, Patiala and opted for his reversion to the post of Head Clerk in RCF, Kapurthala, then in law he must be deemed to have worked as Head Clerk in RCF, Kapurthala. According to learned counsel, if the aforementioned course is not followed then the provisions of Rule 310 of the Indian Railway Establishment Manual Volume-1 (for brevity, ‘the Railway Manual’) would be rendered completely otiose. In other words, the 4 C.W.P No. 3838-CAT of 2002 argument is that respondent No. 1 cannot first be permitted to give up a particular benefit in order to gain advantage of transfer by mutual consent and then claim the same very given up benefit at the time of selection process initiated after his transfer to RCF, Kapurthala. Learned counsel has further argued that respondent No. 1 in fact after realising the aforementioned legal and factual position, volunteered to appear in the selection process of OS-II. Since respondent No. 1 has failed in the viva-voce test which is must, under Rule 215(a), therefore, the principle of estoppel would also be attracted to the facts and circumstances of the present case. The last submission of learned counsel for the petitioner is that the order of the Tribunal adversely affects a large number of other persons, inasmuch as, respondent No. 1 is to be empanelled since 1994. According to learned counsel before issuance of such a direction a large number of persons, who would be rendered junior to respondent No. 1, were necessary parties before the Tribunal. However, none of them was party-respondent before the Tribunal. Mr H.S. Saini, learned counsel for respondent No. 1 has argued that the benefit of Master Circular could not be denied to respondent No. 1, as he was firstly given provisional promotion vide order dated 19.3.1993 in DCW, Patiala and then his services were regularised vide order dated 9.4.1993 (P-5). According to learned counsel for respondent No. 1, once respondent No. 1 has been subjected to selection process, he cannot be subjected to and asked to undergo selection process once again, as his efficiency stands tested. He has maintained that the object and purpose of the Master Circular 5 C.W.P No. 3838-CAT of 2002 is to avoid repetition of selection processes and allow the candidate to pass through after having been subjected to one selection process. After hearing learned counsel for the parties, we are of the considered view that this petition deserves to be allowed and order dated 6.12.2001 (P-1), passed by the Tribunal in the OA is liable to be set aside. It is an admitted fact by respondent No. 1 that he gave up the benefit of promotion by selection to the post of OS-II, which he has earned in DCW, Patiala, in order to seek appointment by transfer on the post of Head Clerk in RCF, Kapurthala. The transfer was by exchanging position with one Smt. Jyoti Sharma, as is evident from the joint application filed by them (P-2). Accordingly, he was given seniority as Head Clerk in RCF, Kapurthala, in the cadre of Head Clerk. Such a mutual exchange is contemplated by Rule 310 of the Railway Manual, which reads thus:- “310. MUTUAL EXCHANGE – Railway servants transferred on mutual exchange from one cadre of a division, office or railway to the corresponding cadre of division, office or railway shall take their seniority on the basis of the date of promotion to the grade or take the seniority of the railway servants with whom they have exchanged, whichever of the two may be lower.” A perusal of the aforementioned provision makes it obvious that in case of mutual transfer by exchange from one cadre of a division or office or railway, the seniority has to be determined on the basis of date of promotion or such an official is to take the seniority of that railway servant with whom he has been exchanged, 6 C.W.P No. 3838-CAT of 2002 whichever of the two is lower. If the trapping of selection and passing of examination are permitted to stick to respondent No. 1 then the provisions of Rule 310 of the Railway Manual would be rendered otiose. It would result into a situation that a person could say at the time of exchange that he would give up his seniority but still by virtue of his selection and passing of examination in his former department, he would earn it after his transfer to other office. In such a situation the principles in the nature of estoppel would be applicable and respondent No. 1 cannot be permitted to say that whatever he has given up can be regained by him. We are further of the view that it was on account of this clear understanding that respondent No. 1 had appeared in the selection process in his transferred department i.e. RCF, Kapurthala, for the post of OS-II. After taking chance and having failed in the viva voce test he could not be permitted to say that he was already qualified when he was working in DCW, Patiala by appearing in the selection process and passing examination there. According to Rule 215(a) of the Railway Manual, passing of viva voce test is condition precedent before a candidate can be declared successful in the examination for promotion to the post of OS-II. Moreover, no person has been impleaded as party respondent because respondent No. 1 is likely to steal march over number of them as he would be promoted as OS-II from the post of Head Clerk ahead of them. Therefore, no direction by the Tribunal could have been issued. The reliance of Mr. H.S. Saini, learned counsel for respondent No. 1, on clause 10 of Master Circular No. 31 (wrongly 7 C.W.P No. 3838-CAT of 2002 referred as 11, dated 18.10.1991 in the order of the Tribunal) is without any substance. In order to appreciate the legal position, provisions of clause 10 of the Master Circular may be read, which are as under:- “10. Promotion after empanelment: 1. An employee who once officiates against a non-fortuitous vacancy in his turn on the panel whether against a leave vacancy, deputation or temporary transfer of another employee vacating the post, shall not be required to appear again for a fresh selection. However, if such an employee refuses to move out on promotion in a regular vacancy he should be debarred for a period of one year. At the end of that period, if he still refuses promotion, he should be subjected to a fresh selection not with standing the fact that he has officiated against a non-fortuitous short-term vacancy as per his panel position. 2. In case an employee lower in the panel has officiated whereas one higher in the panel has not officiated for reasons beyond his control such as sickness, non-release by the Administration, the latter employee will not be required to appear for fresh selection. If 8 C.W.P No. 3838-CAT of 2002 however the senior empanelled employee has refused such officiating imply refusal of promotion. In that case the next junior is the rightful person to be promoted and the senior employee will not be entitled to protection in such cases. 3. Once an employee has been placed on the panel there should be no question of denying the promotion simply because of subsequent adverse Confidential Reports. It is open to Administration to take suitable action to remove the name of the employee from the panel in the event of deterioration of his work after promotion.” A perusal of sub-clause 1 of clause 10 of the Master Circular postulate that if an employee on account of various administrative eventualities has officiated against a non-fortuitous vacancy according to his turn on the panel whether against a leave vacancy, deputation or on account of transfer of another employee, then such an employee is not required to appear again for a fresh selection. Sub-clause 2 of clause 10 of the Master Circular postulate officiation of an employee lower in panel in an eventuality when the one who is higher in panel has not been able to officiate for reasons beyond his control then such an employee who is higher in panel would not require to appear in fresh selection. The third situation contemplated by sub-clause 3 of clause 10 of the Master Circular is 9 C.W.P No. 3838-CAT of 2002 that if an employee has been placed on the panel then subsequent adverse confidential reports were not to be taken into consideration to deny him promotion. The Tribunal in its order has been swayed and has misinterpreted the aforementioned provisions of the Master Circular that respondent No. 1 was promoted and officiated as OS-II for three months while working in DCW, Patiala. The aforementioned view expressed by the Tribunal, which is sought to be projected at the instance of respondent No. 1 before us fails, taking into account the conscious decision taken by respondent No. 1 by giving up his promotion and selection as OS-II and accepting the position as Head Clerk by moving a joint application alongwith one Smt. Jyoti Sharma, as is contemplated by Rule 310 of the Railway Manual. In fact, sub-clauses 1 and 2 of clause 10 of the Master Circular state that in cases where a person refuses to accept promotion then adverse consequence are to follow. However, in the present case Rule 310 of the Railway Manual occupies the area, which has emerged for consideration in the present petition i.e. seeking appointment by transfer and mutual exchange by two employees. Therefore, the view of the Tribunal as well as the argument now raised before us stems from misconception and is liable to be rejected. Accordingly, the argument lacks merit and is hereby rejected. For the reasons aforementioned, this petition succeeds. The order dated 6.12.2001 (P-1), passed by the Tribunal in OA No. 967/PB of 1997, is hereby set aside. The OA filed by respondent No. 1 is dismissed upholding the view taken by the petitioner in its order 10 C.W.P No. 3838-CAT of 2002 dated 25.4.1997 (P-11), which was subject matter of challenge before the Tribunal. In view of the facts and circumstances of the case, we left the parties to bear their own costs. (M.M. KUMAR) JUDGE (T.P.S. MANN) March 10, 2008 JUDGE pds/Pkapoor FIT FOR INDEXING 11