IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.03.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.P.Nos.4269 of 2008 & 22149 of 2007 W.P.No.4269 of 2008: 1. The Union of India owning Integral Coach Factory rep.by its General Manager Ayanavaram Chennai 600 038 2. The Chairman Railway Board Rail Bhavan New Delhi 110 001 3. Deputy Chief Personnel Officer (G) Integral Coach Factory Ayanavaram Chennai 600 038 .. Petitioners -vs- 1. The Registrar Central Administrative Tribunal Madras Bench Chennai 600 104 2. V.Lakshmikanthan 3. Ajay Ghosh 4. S.Gunasekaran 5. S.Jayakumar .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the entire records of the 1st respondent in O.A.No.773 of 2005 including the order dated 4.5.2007 and quash the same. For Petitioners :: Mr.V.G.Suresh Kumar For Respondents :: R1-Court Mr.C.K.Chandrasekar for R2, R3 & R5 No appearance for R4 W.P.No.22149 of 2007: V.Selvaraj .. Petitioner -vs- 1. The Union of India owning Integral Coach Factory rep.by its General Manager Ayanavaram Chennai 600 038 2. The Chairman Railway Board Rail Bhavan New Delhi 110 001 3. The Deputy Chief Personnel Officer (G) Integral Coach Factory Ayanavaram Chennai 600 038 4. The Central Administrative Tribunal Chennai Bench Chennai 600 104 rep by its Registrar 5. V.Lakshmikanthan 6. Ajay Ghosh 7. S.Gunasekaran 8. S.Jayakumar .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari to call for the records relating to the impugned order in O.A.No.773 of 2005 dated 4.5.2007 on the file of the fourth respondent and quash the same. For Petitioner :: Mr.P.Rajendran For Respondents :: Mr.V.G.Suresh Kumar for R1 to R3 R4-Court No appearance for others ORDER D.MURUGESAN, J. In both the writ petitions, the order of the Central Administrative Tribunal, Chennai Bench in allowing the original application is questioned. The controversy arises on the following set of facts. For promotion to the post of Assistant Executive Engineer (AEN), which is a Group B post, a ratio of 30% through Limited Departmental Competitive Examination (LDCE) from amongst the Senior Section Engineers with at least five years experience and 70% on the basis of seniority from amongst the Senior Section Engineers is earmarked. The roster for filling up the vacancies is that the first three vacancies are to be filled up from the 70% quota and the fourth vacancy is to be filled up from the 30% (LDCE) quota. 2. Sometime during the year 2000, one post of Assistant Executive Engineer (AEN) was filled from amongst the Scheduled Caste category. In the year 2001, another vacancy was notified to be filled from unreserved category and the selection was cancelled due to administrative reasons, though the written test was conducted. During the year 2005, another vacancy arose and the same was notified for reserved category (SC) by a notification. The said notification was questioned by the contesting respondents, who were working as Senior Section Engineers in the Integral Coach Factory. The thrust of challenge was that as the selection process for the earlier vacancy which stood notified as unreserved category was cancelled, that vacancy should have been again notified only as unreserved and in the matter of promotion, post-based reservation system should have been followed as per the judgment of the Supreme Court in R.K.Sabharwal and others v. State of Punjab and others, AIR 1995 SC 1371. The notification was further questioned on the ground that once the selection process had commenced, the rule that was prevalent on the date of appointment should alone be followed and in support of the said submission, the judgment of the Supreme Court in Union of India v. S.S.Uppal and another, (1996) 2 SCC 168 was relied upon. The Tribunal after accepting both the above contentions allowed the original application. Writ Petition No.22149 of 2007 is filed by one V.Selvaraj, an incumbent Assistant Executive Engineer on obtaining leave and Writ Petition No.4269 of 2008 is filed by the official respondents representing Integral Coach Factory. 3. We have heard Mr.P.Rajendran, learned counsel for the incumbent promotee, Mr.V.G.Suresh Kumar, learned counsel for the official respondents and Mr.C.K.Chandrasekar, learned counsel for the contesting respondents. 4. As far as the ratio of 70 : 30 laid down for filling up the post of Assistant Executive Engineer by promotion on the basis of seniority and on the basis of LDCE, there is no dispute. Similarly, for every four vacancies, the fourth vacancy should be filled up from amongst the candidates who have been selected through LDCE. Of course, on the said position, one post was filled up in the year 2000 from the reserved category. Subsequently, in the year 2001, another post was notified for unreserved category, but the selection did not go through. By the notification dated 15.7.2005, as against the vacancy that arose, the same was notified for reserved category (SC). It is the contention of the official respondents that the present vacancy arose against a carry forward SC point of LDCE quota as against the promotion quota filled in the year 2000 by a Scheduled Caste candidate. It is seen that the promotion of a Scheduled Caste candidate in the year 2000 is not against the LDCE quota, but by way of regular promotion. Therefore, when the subsequent vacancy arose in the year 2005, the same was notified as a reserved category. Though it is contended that in the meantime, in the year 2001, another vacancy was notified to be filled up from unreserved category and therefore for the year 2005 the said vacancy should have been notified only for unreserved, we are not inclined to accept the said contention. On the date when the notification was made, there was no representation from Scheduled Caste in the cadre of Assistant Executive Engineer, as by the time one candidate who was promoted on the basis of seniority, though from Scheduled Caste category, was further promoted as Executive Engineer (XEN). It is also relevant to note that the post-based roster in Group B posts was introduced only by the Railway Board's letter dated 16.11.2005, though such post-based roster system was in vogue in respect of Group C and Group D posts prior to that circular. The contention on the basis of the judgment of the Supreme Court in R.K.Sabharwal's case that the Railway Board should have applied the post-based reservation system cannot be pressed into service, in view of the fact that such benefit was extended to Group B posts only with effect from 16.11.2005. Of course, the contesting respondents may have a grievance that the Railway Board should not have waited for following the post-based reservation system, though the judgment was made in the year 1995 itself, nevertheless, on the date when the notification was made, there was no representation from the Scheduled Castes and therefore the vacancy which was carried forward was sought to be filled up from Scheduled Caste category. It is also to be noted that when the previous LDCE was conducted during the year 1983-84, the said post was notified for unreserved point, even though the vacancy was actually due against SC point on the basis of 40% vacancy based roster. Under the 30% LDCE quota, there was no representation for Scheduled Caste in Assistant Executive Engineer (AEN) cadre on the date when the notification was made. It is also to be noted that from 2001, there were only two posts available on the basis of cadre strength and one post was already filled up from unreserved category and the carry forward system has been rightly adopted for reserving the vacancy that occurred in the year 2005. The Tribunal had overlooked the fact that the vacancy had arisen only in the year 2005 and there was no representation for Scheduled Caste under LDCE, even though the previous LDCE was conducted in the year 1983-84. Though the Supreme Court has laid down the law for filling up the post-based reservation system, on the given facts of this case and for the reasons which we have mentioned above, the said judgment may not be of any assistance to the contesting respondents. In that view of the matter, we find every merit in the writ petitions. Accordingly, the impugned order of the Tribunal is set aside and both the writ petitions are allowed. Consequently, M.P.Nos.1 of 2008 and 2 of 2007 are closed. No costs. Index : yes (D.M.,J.) (M.S.N.,J.) Internet: yes 18.03.2010 ss To 1. The Chairman Railway Board Rail Bhavan New Delhi 110 001 2. The General Manager Integral Coach Factory Ayanavaram Chennai 600 038 3. The Deputy Chief Personnel Officer (G) Integral Coach Factory Ayanavaram Chennai 600 038 4. The Registrar Central Administrative Tribunal Chennai Bench, Chennai-104 D.MURUGESAN, J. and M.SATHYANARAYANAN, J. Order in W.P.Nos.4269 of 2008 & 22149 of 2007 18.03.2010