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2018 Supreme(Raj) 608
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
K.S JHAVERI, VIJAY KUMAR VYAS, JJ.
Sanjay Garg - Appellant
Vs.
Union of India - Respondent
C.W.P. No. 8214 of 2011, 8760 of 2011
Decided On : 13-03-2018
Manjeet Singh Reen, P.C Sharma
The panel for promotion to the post of Junior Engineer Grade II (Tele) should be prepared on the basis of seniority, and the Railway Board's order dated 19.6.2009 was applicable to the case.
Headnote:
RAILWAY PROMOTION - SENIORITY LIST - PREPARATION - CRITERIA - INTERPRETATION OF RAILWAY BOARD'S ORDERS - APPLICABILITY OF RULE 219(J) OF INDIAN RAILWAYS ESTABLISHMENT MANUAL - LIMITATION.
Fact of the Case:
The petitioner challenged the judgment of the tribunal allowing the OA filed by respondent no.1, who sought to quash the panel notified for promotion to the post of Junior Engineer Grade II (Tele) and to direct the respondents to recast the panel on the basis of total marks obtained in the LDCE and to promote him to the post of Junior Engineer Grade II. The petitioner contended that the tribunal erred in holding that the panel should be prepared on the basis of merit and not on the basis of seniority, and that the Railway Board's order dated 19.6.2009 was applicable to the case.
Finding of the Court:
The court found that the tribunal had taken different views in different cases on the issue of whether the panel for promotion should be prepared on the basis of merit or seniority, and that it had not considered the matter in true spirit. The court also noted that the tribunal had not considered the subsequent law declared by the different High Courts and the Supreme Court.
Issues: 1. Whether the panel for promotion to the post of Junior Engineer Grade II (Tele) should be prepared on the basis of merit or seniority? 2. Whether the Railway Board's order dated 19.6.2009 was applicable to the case?
Ratio Decidendi: The court held that the tribunal had erred in holding that the panel should be prepared on the basis of merit and not on the basis of seniority, and that the Railway Board's order dated 19.6.2009 was applicable to the case. The court observed that the tribunal had taken different views in different cases on the issue of whether the panel for promotion should be prepared on the basis of merit or seniority, and that it had not considered the matter in true spirit. The court also noted that the tribunal had not considered the subsequent law declared by the different High Courts and the Supreme Court.
Final Decision: The court quashed and set aside the order of the tribunal and remitted back the matter to the tribunal to consider the same afresh, taking into consideration the subsequent law declared by the different High Courts and the Supreme Court.
1. In both these petitions common question of law and facts are involved hence they are decided by this common judgment.
2. By way of these petitions, the petitioner as well as Union of India have challenged the judgment and order of the tribunal whereby tribunal has allowed the OA preferred by Mr. Sushant Sharma (respondent no.1 in CWP No. 8760/2011) and respondent no. 4 in CWP No. 8214/2011).
3. While considering the case, the tribunal has observed as under:-
"9. Pursuant to this interim order, the respondents Department had issued letter dated 05.09.2007 wherein it was made clear that finality of the panel notified vide Annexure A/1 (Panel dated 03.08.2007) shall be subject to the outcome of this OA. By perusal of the said letter, it reveals that the panel which has been prepared had attained finality and is subject matter of this OA. Thus we are not impressed with the arguments advanced on behalf of the respondents that this OA is not maintainable against the order Annexure A/1 and sub clause 2 of regulation dated 26.11.1986 after undergoing the process of selection. Further we are not impressed with the submission advance on behalf of the private respondent No.4. that as per provisional panel, respondent no.4 is working on the post of Junior Engineer Grade II (Tele) and as Para 3.2 of Railway Board's letter dated 19.06.2009 any previous selection panel drawn before the issuance of this letter need not be reopened. As already discussed hereinabove, the provisional panel which has been prepared is with the understanding that it shall be subject to the decision and final outcome of this OA and cannot be said to be final. Therefore, in view of the ratio decided by the Hon'ble High Court and Supreme Court and fresh Railway Board's circular dated 19.06.2009, the present OA is allowed and impugned order dated 03.08.2007 (Annexure A/1) is quashed and set aside and the respondents are directed to recast the panel of the successful candidates on the basis of total marks obtained in the LDCE and to promote the applicant to the post of Junior Engineer Grade II in case he finds place in the panel ignoring the seniority with all consequential benefits."
4. Counsel for the petitioner has taken us through the various records and also the relief sought in the OA which reads as under:-
(i) An appropriate order or direction to the respondents quashing the Clause-2 of the impugned Regulation No. E (NG) 1-84-PM7-33 (AIRF), dt. 26.11.1986 being in violation of Article 14 of the Constitution of India.
(ii) An appropriate order or direction to the respondents for quashing the order dt. 3.8.2007 (Annexure-1) to the extent of adding the applicant name in the provisional panel of the selected candidates for the post of Junior Engineer-II (Tele) under General Category with consequential benefits.
(iii) An appropriate order or direction to quash any order passed during the pendency of this application adversely affecting the purpose of this application.
4.1 He has taken us to the letter dt.15.11.2006 regarding selection for the post of J.E. (Tele) Pay scale of Rs.5000-8000 (RP) against 20% LDC Quota (Telecom Department) Ajmer Division and the same reads as under:-
It has been decided to fill up 01 vacancy of J.E.- Gr-II(Tele) scale Rs.5000-8000(RP) against 20% LDCE Quota (Telecom Department)
Sanctioned Cadre
05
Working
05
Vacancy
Nil
Linked vacancy in Higher Grade
07
Linked vacancy of W/c Post in Higher Grade
01
Total Vacancy
08
From above 08 vacancies, 03 vacancies (Gen-01, SC-01, ST-01) are reserved for direct recruitment for which 01 SC selected candidate is under training before appointment and demand note for 01 ST post has been sent to HQ-Jaipur.
Selection process was started by downgrading above 04 higher grade linked vacancy in J.E. G-II scale 5000-8000 by letter no. E/Sig./1025/3/3 part I,
