CWP No. 17421 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 17421 of 2007
Date of decision: 06.02.2009
Union of India through Senior Divisional Personnel Officer,
.....PETITIONER
VERSUS
Sunil Kumar and others
..... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr.S.K.Pipat, Sr. Advocate,
with Mr. Nitin Kumar, Advocate,
for the petitioner.
Mr. Raj Mohan Singh, Advocate,
for the respondents No. 1 and 2.
Mr. Atul Mahajan, Advocate,
for respondents No. 9 and 10.
***
AUGUSTINE GEORGE MASIH, J.
The present writ petition has been filed challenging the order
dated 27.07.2007 passed by the Central Administrative Tribunal,
Chandigarh Bench (Annexure P-3), wherein the Tribunal has allowed the
CWP No. 17421 of 2007 2
application filed by respondents No. 1 to 4 and setting aside the same qua
the private respondents Rajesh Kumar and Vinay Kumar and a direction
was issued to carry out a review on the basis of the observations made by
the Tribunal and prepare a fresh panel and make appointments.
Mr. Pipat, learned senior counsel for the petitioner submits that
learned Tribunal has totally overlooked the provisions governing the
situation, which were prevalent in the present case. He contends that as far
as the impanelment in a particular category, which has to be considered for
promotion as per the quota, is concerned, guidelines dated 19.12.2002
(Annexure A-7) Clause 11.5 would hold the field. But when it comes to
promotion to the post of Guards, the same would be governed by letter
dated 06.03.1999, wherein Note-3 states that if in a particular category, the
requisite number of candidates are not selected, the balance of the
vacancies, reserved for that category should be filled from other categories
from amongst those, who have secured higher marks in the order of merit
without reference to the category, to which they belong. On this basis, he
submits that the petitioner had promoted Rajesh Kumar and Vinay Kumar
on the basis of they being higher in merit to Sunil Kumar, Raj Pal, Vijay
Kumar and Jai Singh-respondents No. 1 to 4 in the present writ petition.
What was claimed by these four respondents before the Tribunal was that
they were entitled to be placed higher to Sh. Rajesh Kumar and Vinay
Kumar in the panel on the ground that they were senior to both of them and,
therefore, they should have been given precedence over them for promotion
to the post of Guard. The learned Central Administrative Tribunal has
proceeded to grant the benefit to respondents No. 1 to 4 on this ground
CWP No. 17421 of 2007 3
overlooking the specific conditions, as provided in Note-3 of the letter dated
06.03.1999, which governs the field with regard to promotion of Guards.
Briefly the facts, which are required to understand the
controversy in the present case, are that the post in question involves
promotion to the post of Guard. A circular dated 13.10.2004 inviting
applications for the posts of Goods Guard against 60% rankers’ quota
amongst Railway Employees working as Train Clerks/Senior Train
Clerks/Commercial Clerk/Senior Commercial Clerk/Ticket Collector/Senior
Ticket Collector, Assistant Guard, and Switchman/Yard Staff working in
the pay scale of Rs. 3050-4590, Rs. 3290-4900, Rs. 4000-6000 with three
years service was issued. As per the circular, 39 vacancies were to be filed
up. Written test was conducted and list of 386 candidates was finalized.
Thereafter the selection was held and a panel was prepared vide Annexure
A-1. It was alleged by the applicants before the Tribunal that juniors to the
applicants have been impanelled without declaring result of any written test.
The quota prescribed for promotion was 60% and there was further quota
prescribed for each of the categories out of this 60%. Train Clerks had
22%, Ticket Collectors had 5%, Commercial Clerks had 7%, Shunting
Sweepers had 12%, Switchman, Cabinman, Leverman and Pointsman with
specified grades therein had 7% and Assistant Guard and RPS or Senior
Goods Guards with a specified grade had another 7%. As per the quota
assigned, the posts were filed up the respective quota after following Clause
11.5 as per guidelines dated 19.12.2002 (Annexure A-7). There were still
certain posts, which were available to be filled up.
In the present case, the controversy has been narrowed down to
CWP No. 17421 of 2007 4
only two posts. Mr. Rajesh Kumar and Mr. Vinay Kumar as well as Mr.
Sunil Kumar and Mr. Raj Pal, who all belong to one category i.e. Senior
Train Clerks and Train Clerks, which is the first source for recruitment by
promotion. It was the contention of the applicants before the Tribunal that
promotions were to be made on the basis of guidelines, which would govern
the impanelment, according to which the applicants, who were senior to the
respondents, would be impanelled higher than the respondents irrespective
of the merit obtained by them during the process of impanelment. Reliance
was made on Guidelines dated 19.12.2002 (Annexure A-7) Clauses 11.5.1
to 11.5.4 by the applicants before the Tribunal, which reads as follows:-
"11.5 Eligibility for Impanelment
11.5.1 An employee must secure not less than
60% (30 out of 50) in the professional ability and not
less than 60% in the aggregate to be eligible to be
impanelled.
(Note (iii) below para 219(g) of IREM)
Note: (i) Even if a candidate secures 60% in
overall aggregate but does not secure 60% in
professional ability he cannot be included in the
panel.
(ii) A person who fails in the psycho
test is not eligible to be included in the
panel/suitability list.
(Board's letter No. E(NG)1-98/PM1/17
dated 30.10.2001)
CWP No. 17421 of 2007 5
11.5.2 The names of candidates selected for
impanelment should be arranged in the order of
seniority. Those securing 80% marks or more in
the aggregate should be classified as outstanding
and allowed to supersede 50% of the number of
his seniors in the field of eligibility.
( Para 219 (i) of IREM)
11.5.2.1 For example, if for forming a panel for 8
vacancies 24 employees are called for viva. Then
(i) If the 13th man is categorizer as
outstanding (i.e. he obtains 80% marks) his seniors
are 12 in number and he can gain 6 places and will be
placed at seventh in the panel.
(ii) If the 24th candidate is categorized as
outstanding he will gain 11 places. Since there are
only 8 vacancies he will not find a place on the panel.
(For details, refer to Board’s letter No. E(NG)1-
76/PM1/142 dated 27/30.10.79)
11.5.3 After arranging the names of the
candidates in the above manner, a panel equal to the
number of vacancies should be drawn out by the
Selection Board.
11.5.4Moderation of results by way of awarding
grace marks to candidates shall not be resorted to
without the authority of the Selection Board or the
CWP No. 17421 of 2007 6
authority competent to accept therecommendations
of the Selection Board. No grace marks shall be
allowed in individual cases.”
Basing their contentions on this, the applicants had alleged that
they should have been placed higher to the respondents and, therefore, had a
prior right to promotion. The Tribunal had accepted the contentions raised
by the applicants and held them entitled to be ranked higher in the
impanelment than the respondents.
Counsel for the petitioner contends that reliance of the Tribunal
on these instructions is totally misplaced as these are general guidelines
issued for Personnel Officers and Members of Selection Board constituted
for conducting selections for promotion to posts classified as “Selection”.
As and when a normal process of selection is held, these guidelines would
hold the field and when it comes to a specified promotion, which again is
based on selection and if for that particular promotion or selection, special
guidelines have been framed, the same would have force over and above the
general guidelines. He, on this basis, contends that the present case would
be governed by the instructions issued vide letter dated 06.03.1999
(Annexure R-1) , which provides for channel of promotion of the Guards
and thereafter, the Note therein prescribes the procedure to be followed for
making selection for such promotion. He submits that Note-3 of the letter
dated 06.03.1999 would hold the field when it comes to promotion to the
post of Guard, the said Note reads as follows:
“(3) If in a particular category the requisite number of
candidate is not selected the balance of the vacancies
reserved for that category should be filled from other
CWP No. 17421 of 2007 7categories from amongst those who have secured highest
marks in the orders of merit without reference to the
category to which they belong.”
He, on this basis, contends that the petitioner has followed
these instructions and has, therefore, placed Rajesh Kumar and Vinay
Kumar (proforma respondents No. 9 and 10 in the present petition) higher in
the panel than Sunil Kumar and Raj Pal (respondents No. 1 and 2 in the
present writ petition).
Counsel for respondents No. 1 and 2, on the other hand,
submits that there is a specified procedure prescribed, which needs to be
followed and, therefore the guidelines dated 19.12.2002 would hold the
field and guidelines No. 11.5.1 to 11.5.4 would be applicable to the present
case. He, on this basis, contends that the order passed by the Tribunal is in
accordance with law and, therefore, deserves to be sustained.
We have given our thoughtful consideration to the submissions
made by the parties and have gone through the impugned order as well as
the records.
There can be no dispute that the guidelines, as issued vide
letter dated 19.12.2002 (Annexure A-7) , would hold the field, whenever a
selection is to be held. It would be applicable to a situation where the
promotion is to be made to a quota assigned to a particular category. In the
present case, there is no dispute that these guidelines were followed when
the prescribed quota of 22% assigned to Train Clerks and Senior Train
Clerks was filled up. After the quota assigned to this category stood
exhausted and after taking into consideration the other eligible candidates
CWP No. 17421 of 2007 8
belonging to various categories as per their quota some posts were left
unfilled. It is under these circumstances, that the posts, which now became
available for promotion, were to be filled up. These posts, which are now to
be filled up and which are left over, would be governed by the special Note
appended to the promotion quota assigned for the post of Guards, as per
letter dated 06.03.1999 (Annexure R-1) . The said letter provides for
channel of promotion to the post of Guard, it provides for the quota, it
provides for the eligibility of promotees and the categories. It, thereafter,
provides for the procedure to be followed. Note-3, in these circumstances,
would hold the field. A perusal of the same would show that it clearly
specifies that if in a particular category the requisite number of candidates
are not selected, the balance of the vacancies, reserved for that category,
should be filled from other categories from amongst those who have secured
highest marks in the orders of merit without reference to the category, to
which they belong. The merit, therefore, of a candidate is to be looked into
for putting him higher in the panel. A candidate, who secured higher marks,
would thus be the candidate who would be placed higher in the panel
irrespective of the category he belongs to. It is not in dispute that Sh.
Rajesh Kumar and Sh. Vinay Kumar (proforma respondents No. 9 and 10 in
the present writ petition) were higher in merit to Sh. Sunil Kumar and Sh.
Raj Pal (respondents No. 1 and 2 in the present writ petition). That being
so, Sh. Rajesh Kumar and Sh. Vinay Kumar would rank higher in the panel
than Sh. Sunil Kumar and Sh. Raj Pal. It is a settled preposition of law that
general rules/instructions will have to give way to special rules/instructions.
In this situation, the guidelines dated 19.12.2002 (Annexure A-1) would
CWP No. 17421 of 2007 9
give way to the instructions issued vide letter dated 06.03.1999 (Annexure
R-1). Therefore, the impugned order dated 27.07.2007 passed by the
Central Administrative Tribunal, Chandigarh Bench (Annexure P-3) cannot
be sustained.
The writ petition is allowed. The impugned order dated
27.07.2007 passed by the Central Administrative Tribunal, Chandigarh
Bench (Annexure P-3) is hereby quashed.
( ASHUTOSH MOHUNTA ) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
February 06, 2009
pj
Whether referred to Reporters…………………………Yes/No.