Promotion based on suitability test, not seniority alone, is not subject to challenge solely on the ground of reservation as the issue of vacancy determination for different categories had already been adjudicated.

O R D E R

Per : Kumar Rajesh Chandra, Administrative Member

1.The Applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:

“8.1 For setting aside the order dated 17.11.2016 so far respondent no. 9 to 30 is concerned, issued vide Docket No. 7/EL/ELP/Goods/Arrgt. Dhanbad, by the Senior Divisional Personnel Officer, E. C. Railway Division, Dhanbad, they are junior to the applicant were/ are promoted to the post of ELP(Goods) in the P.B. Rs. 9300-34800+ GP 4200/- applying the principle of Reservation.

8.2 For further direction to the respondents to the restrain them from applying the principle of reservation while making the proposed promotions to the posts of Loco Pilot (Goods) in PB 9300-34800 in GP4200/- in Dhanbad Division of East Central Railway as notified vide Notification dated 17.11.2016.

8.3 For further direction to the respondents to make the proposed promotions, strictly on the basis of seniority-cum-suitability, as per the common cadre seniority of the candidates, as reflected in the seniority list of the Assistant Loco Pilot/ Goods and Senior Assistant Loco Pilot/ Diesel, in the Mechanical Department of the Dhanbad Division of East Central Railway, irrespective of their caste or tribe status and, last, but not the least to make the proposed promotions.

8.4 For any other relief/ reliefs for which the applicant is entitled to.”

2. For the sake of clarity, facts in the case as stated by the applicant in his OA, are delineated and discussed herein under :-

The applicant initially joined the Railway service as Assistant Loco Pilot (Electrical) on 12.10.2009 under the Chief Crew Controller, Patratu, Dhanbad Division.

A Provisional Seniority List of Assistant Loco Pilot (E) was issued vide letter dated 28.10.2011. In the said seniority list, the applicant’s name appeared at Serial No. 464. In the same seniority list, Private Respondent Nos. 9 to 12 appeared at Serial Nos. 493, 494, 500 and 503 respectively, i.e., much below the applicant, thereby making them admittedly junior to the applicant. Consequently, Private Respondent Nos. 9 to 30 are junior to the applicant in the feeder cadre.

In the year 2012, a cadre restructuring of Assistant Loco Pilot (Electrical) was undertaken, pursuant to which Private Respondent Nos. 9 to 30, though junior to the applicant, were promoted to the post of Senior Assistant Loco Pilot (Electrical). Subsequently, the applicant and other unreserved category candidates were also promoted to the post of Senior Assistant Loco Pilot (Electrical) on 18.01.2013. A fresh seniority list of Senior Assistant Loco Pilot (E) was prepared, wherein the applicant was placed at Serial No. 255, while Private Respondent Nos. 9 to 30 were placed below him at Serial No. 256 onwards. Despite the above settled seniority position, the official respondents issued an eligibility list dated 17.11.2016, proposing promotions to the post of Electric Loco Pilot (Goods) in Pay Band Rs. 9300–34800 with Grade Pay Rs. 4200. In the said eligibility list, SC/ST candidates junior to the applicant (Private Respondent Nos. 9 to 30) were included for promotion by applying the principle of reservation in promotion, whereas the applicant, though senior and eligible, was excluded.

The applicant immediately submitted representations dated 12.09.2016, 20.09.2016 and 26.09.2016, but no corrective action was taken by the respondents. Although no final select panel has yet been issued and no promotions have been effected, the official respondents are proceeding to send junior SC/ST candidates for pre-promotional training, which would culminate in their promotion, thereby presenting the applicant with a fait accompli.

3. Learned Counsel for the applicant submits that promotion to the post of ELP (Goods) is governed by the principle of seniority-cum- suitability, i.e., a non-selection method, where merit plays no role beyond fitness. The last published and undisputed seniority lists