WP(C) 4604/2009 BEFORE THE HON’BLE MR. JUSTICE B.K.SHARMA THE HON’BLE MR. JUSTICE PK SAIKIA (B.K. Sharma, J) Heard Mr B Chakraborty, the learned counsel for the petitioners and Mr UK Nair, the learned standing counsel for the railway-respondents. 2. Despite proper service of notice on the respondent No.1 none has appeare d on his behalf. 3. This writ petition is directed against the Judgment and Order dated 28.0 5.2009 passed by the learned Central Administrative Tribunal, Guwahati Bench (in short The Tribunal ), in Original Application (in short O.A. ) No. 54/2006 b which the application filed by the respondent No.1 under Section 19 of the Admi nistrative Tribunal Act, 1995 has been allowed by way of setting aside and quash ing the impugned selection process. The two writ petitioners who were the respon dents in the O.A. were recommended for promotion to Group ’C’ posts (Jr. Clerk). 4. In the selection test six eligible candidates had appeared including the two writ petitioners and the respondent No.1 who was the applicant in the O.A. The names of the candidates who had participated in the selection process are sh own below with the marks secured by them in the selection. SL NO. NAME CATEGORY MARKS SECURED 1 Sri Ganesh Ram (Petitioner No1) Senior Record Sorter SC 74.87% 2 Sri T.K.Das (Respondent No.1) Hamal UR 94.57% 3 Sri Churen Chandra Boro Record Sorter ST Failed 4 Sri Rajkumar Das (Petitioner No.2) Jamadar Peon SC 94.15% 5 Sri Subhash Chandra Das Hamal UR Failed 6 Sri Paresh Boro Jamandar Peon ST 60% 5. As per the requirement of the Rules and to be prØcise Rule 219 (J) of th e Indian Railway Establishment Manual (IREM), the successful candidates are to b e empanelled in order of their seniority. Those securing more than 80% are to be arranged in order of seniority, but they are allowed to supersede not more than 50% of the total field of eligibility. As per the requirement of the Rules, to be eligible for empanelment, a candidate would have to secure minimum 60% of mar ks. 6. The writ petitioner No.1 who belongs to SC category having secured 74.87 % of marks was placed in the panel in order of his seniority at Sl.No. 1, while the writ petitioner No.2 securing 94.15% was placed at Sl.No. 4, who is also an SC category candidate. On the other hand, the respondent No.1 who was the applic ant before the Tribunal was placed at Sl.No.2 securing 94.57% of marks. 7. As noted above, irrespective of marks secured in the selection, the cand idates who had secured 60% and above marks were placed in the panel in order of their seniority. As per the Minutes of the Selection Committee, the writ petitio ner No.1 although belongs to SC category but having occupied his position in the select list which is No.1 on account of his seniority as well as merit, he was recommended for promotion as General Category candidate. On the other hand, the writ petitioner No.2 although was placed at Sl.No.4 on the basis of his merit an d seniority, but being an SC category candidate was recommended against the lone vacancy of SC category. It will be pertinent to mention here that the selection was conducted for two vacancies, one for SC category and other one for Unreserv ed. 8. In this case, both the writ petitioners belong to SC category, but the p etitioner No.1 by virtue of his merit and seniority having occupied the position No.1 in the select list was recommended against General Category vacancy and th e petitioner No.2 although had occupied merit position at Sl.No.4 was recommende d to fill up the vacancy meant for SC category. In the process although the resp ondent No.1 had secured better marks than both the petitioners could not be reco mmended for promotion. 9. The above procedures have been followed by the Selection Committee in te rms of the Circular letter of the Railway Board dated 20.06.2003 and 22.09.2006 about which the Railways had stated in their counter affidavit in Paragraph 2.8, which is reproduced below: 2.8. As per the Railway Board’s letter No.20.6.2003 in relation to post SC/ST candidates who are selected by applying the general standard and whose names in the selection list/penal appear within the number of U.R. vacancies are to be t reated as selected as on their own merit and adjusted against unreserved post. A s such the selection finalized on 12/14-12-2005 is in order. 10. The learned Tribunal by its impugned Judgment and Order dated 28.05.2009 has set aside the impugned selection even after holding that the selection proc edure had prescribed 60% qualifying marks and thereafter empanelment maintaining seniority and that having regard to such procedure, the selection could not be said to be on comparative merit. 11. The Selection Committee in its deliberation referred to Para 219 (J) of the IREM in Para 13 of its minutes which reads as follows: Rule 219 (J) The Selection Committee recommends the name of Shri Ganesh Ram (S C) against UR post and Shri Raj Kumar Das, Jdr Peon against SC post. Shri T.K. D as, Hamal under MD/CH/MLG who secured outstanding marks obtaining more than 80% could not be empanelled as he can not supersede more than 50% and there is only one Sr. candidate above Sri Das. 12. The learned Tribunal has set aside the selection based on its interpreta tion in respect of Para 219(J) of the IREM which is also reproduced hereinbelow: (J) The names of selected candidates should be arranged in order of seniority but those securing a total more than 80% marks will be classed as outstanding an d placed in the panel appropriately in order of their seniority allowing them to supersede not more than 50% of total field of eligibility. 13. On the basis of the aforesaid clause, if the respondent No.1 was allowed to supersede the writ petitioner No.1, it would have been a case of supersessio n by more than 50% and to be prØcise 100%, which is not permissible as per the a foresaid provisions. Supersession in respect of those securing more than 80% mar ks classifying them as outstanding is allowed not more than 50% of total field e ligibility. In the instant case, the writ petitioner No.1 was the only eligible person above him and if the respondent No.1 was allowed to supersede him it woul d have been a case of supersession of more than 50%. 14. In view of the above, we are of the considered opinion that there is no infirmity in conducting the selection by the Selection Committee and consequentl y could not have been interfered with by the learned Tribunal. Accordingly, we a re inclined to set aside and quash the impugned Judgment and Order dated 28.05.2 009 passed by the learned Tribunal in O.A. No. 54/2006. The writ petition is all owed leaving the parties to bear their own costs. 15. Before parting with the case record we would like to call upon the Railw ays to appropriately consider the case of the respondent No.1 for his promotion to Group ’C’ category more particularly in view of the fact that in the particul ar selection he had secured better marks than both the petitioners as well as ot her candidates. This aspect of the matter has also been mentioned by the Selecti on Committee in the impugned minutes of the selection.