Judgment:
1. This O.A. has been filed by the applicants seeking following reliefs: (a) This Hon'ble Tribunal pleased to call for the records of the case and after going through the same, be pleased to order and direct the respondents to call only 5 General community candidates for selection to 1 Group 'B' post and their action of calling 11 persons for filling-up of 1 General post/ vacancy, may be declared as illegal and arbitrary.
(b) This Hon'ble Tribunal will be pleased to declare that the Applicants are entitled and eligible to be called for selection for 1 post each for SC/ST and accordingly, they should be called for selection.
(c) This Hon'ble Tribunal be pleased to order and direct the respondents to call the applicant Nos. 2 along with other 4 senior ST candidates for selection to Group 'B' post reserved for ST community and applicant Nos. 3, 4 and other 3 senior SC candidates for selection to Group 'B' post reserved for SC community and afford them an opportunity to appear for the selection.
(d) This Hon'ble Tribunal may further be pleased to order and direct the respondents to promote the applicants to the post of AWM (W/shop) in the qualifying selection with all consequential benefits of seniority, fixation of pay, payment of arrears, promotions, etc.
(e) This Hon'ble Tribunal may be pleased to allow applicants to file a Joint O.A.2. The facts of the case, in brief, are as follows. The applicants No.2, 3 and 4 are working as Senior Section Engineers in Parel Workshop and applicant No. 2 belongs to ST community, while applicants Nos. 3 and 4 to SC community. The next post of promotion for Senior Section Engineer is Assistant Works Manager (AWM). The respondents have notified three vacancies for the promotion to the post of AWM, out of which one is unreserved, one is for SC and one for ST. However, in the eligibility list of 11 persons enclosed with the Notification dated 12.1.2006 there are 11 candidates and none of them belongs to SC/ST community. Thus, the main grievance of the applicants is that despite two reserved posts one for SC and one for ST, the respondents have not called any member of SC or ST for the selection. The applicants have contended that while filling up one unreserved post, the respondents have published a list of 11 suitable candidates and for the post of SC/ST no candidates of this community have been included in the eligibility list.
3. The applicants have further submitted that since the quota for reservation was already fulfilled at a given point of time, the 40 point roster is no longer applicable. Now, in view of the ratio laid down by the Apex Court in the case of R.K. Sabharwal a vacancy created by the retirement etc. of SC/ST has to be filled up by a member of that community only. Thus, the respondents cannot fill up the vacancies earmarked for SC/ST by any unreserved candidates. The contention of the applicants is that for one post of SC and one post of ST if 5 persons of SC and 5 persons of ST are called for selection, then all the three applicants would be included in the list. A representation was made to the respondents on 9.2.2006 by R-1 asking for issuing a revised list of eligible SC/ST candidates keeping in view the various instructions of the Railway Board so that the vacancies meant for SC/ST are filled up by members of that community only. Since the respondents were going ahead with the selection, the applicants were forced to file this O.A.4. The learned Counsel for applicant Mr. G.S. Walia submitted that the respondents with the Notification dated 12.1.2006. regarding selection for Group 'B' post of AWM have also attached a list of eligible candidates. For the post of AWM (Workshop) the list contains 11 names and none of them belong to SC/ST community. The learned Counsel contended that as per the Railway Board Circular dated 16.6.1992 while preparing a list of persons to be included in the zone of consideration adequate number of SC/ST has to be ensured. It is specifically mentioned that in case the number of SC/ST candidates is less than three times the vacancies available for SC/ST then the deficiency should be made good by picking up (Feb-266) other eligible SC/ST candidates by going down in the seniority list. In view of this, when no SC/ST candidates were coming in the list of 11 then the respondents should have gone down and should have picked up the SC/ST candidates who were meeting the conditions of eligibility as provided under Para 203.1 of IREM Volume-I.5. The learned Counsel for applicant continuing his submissions stated that after the judgment of the Apex Court in the case of R.K. Sabharwal and Ors. v. Slate of Punjab and Ors. 1995 (3) SLJ 227 (SC) : 1995 SCC (L & S) 548, Union of India and Ors. v. Virpal Singh Chauhan and Ors.
1996 (1) SLJ 65 (SC) : 1996 SCC (L & S) 1 and Union of India v. J.C.Mallik, the Railway Board has issued detailed guidelines vide circular dated 21.8.1997 for filling up the vacancies of SC/ST. It has clearly mentioned in Para 3 of the circular that the existing 40 point vacancy-based roster of promotional categories shall be replaced by post-based roster. He stated that the provisions of this circular are applicable for promotion to Group 'B' post as well and the contention of the respondents that it docs not apply to Group 'B' post is incorrect. This fact has been clarified by the Western Railway by issuing a notification on 15.12.2005 enclosing therewith the Railway Board Circular dated 16.11.2005 and 22.11.2005. It is clearly mentioned that instructions contained in Board's letter dated 21.8.1997 should also apply for promotion from Group 'C' to Group 'B' and within Group 'B' categories. The learned Counsel contended that the reliance placed on Para 203.4 of IREM by the respondents is not sustainable since it was issued in the year 1989 and thereafter a number of judgments of the Apex Court have come on the issue of reservation. He contended that after the judgment of the Apex Court, the provisions of the earlier circular to the extent they are repugnant to the ratio laid down by the Apex Court can no longer be followed.
6. The learned Counsel for the applicant has relied upon a verdict of the Apex Court in the case of The Railway Board and Ors. v. P.R.Subramaniyam and Ors. 1978 SCC (L & S) 35, wherein it was held that "the provisions in the Manual do not supercede the rules contained in any of the Indian Railway Codes and in case of conflict the latter should prevail". The learned Counsel has also placed reliance on a verdict of the Apex Court in the case of R.K. Sabharwal and Ors. v.State of Punjab and Ors. (supra), wherein it was held that "After the vacancies in a particular cadre arc filled up, the subsequent vacancies have to be filled up from the categories to which the post belonged in the roster". Another verdict of the Apex Court relied upon by the learned Counsel for the applicant is K. Ameer Khan and Anr. v. A.Gangadharan and Ors. , wherein it was held that "the selection made without reserving requisite number of posts for SC/ST by wrong application of instructions issued by Railway Board is not proper. The learned Counsel for the applicant submitted that a Division Bench of CAT Bombay Bench in the case of Trilokchand Vernia v. Union of India and Ors. 2006 (3) ATJ 247, had also held that "Any circular issued by Railway Board which is contrary to law laid down by Supreme Court or High Court has no effect". The learned Counsel concluding his submissions stated that since the action of the respondents in not providing for requisite reservation for SC/ST is in contravention of the ratio laid down by the Apex Court, the O.A. deserves to be allowed and the respondents be directed to consider the applicants for selection to the post of AWM.7. The learned Counsel for the respondents Mr. V.S. Masurkar submitted that the applicants No. 2, 3 and 4 have not made any representation to the respondents about their grievance of not being called for selection for the post of AWM. He stated that the representation dated 9.2.2006 enclosed with the O.A. is by All India SC/ST Railway Employee Association which is addressed to SPO, CST (M). The Association has not made any representation even to the General Manager. Further, the applicants concerned have made no representation at all. Thus, the O.A.filed on 20.3.2006 is without exhausting departmental remedies.
Therefore, the O.A. is premature and deserves to be dismissed on this count alone. The applicant should have approached the Competent Authority first before seeking judicial review from the Tribunal. The learned Counsel submitted that the O.A. also suffers from non-joinder of proper parties, since none of the person from the eligibility list, which is sought to be declared as illegal, have been made a party respondent.
8. The learned Counsel for the respondents stated that the Railways are very much aware of the policy of reservation in favour of SC/ST and the Railway Board has issued a number of circulars for its implementation at the field level. He submitted that out of 3 vacancies of AWM which is a Group 'B' post only one is unreserved and of the remaining two one is for reserved for SC and another for ST. This is very clear from the Notification dated 12.1.2006. For the purpose of selection candidates coming within the zone of consideration are considered. There is also a provision for including additional names according to a sliding scale as per Para 203.4 of IREM Vol.1. In the case of SC/ST if sufficient names are not available in the list arrived at, then the zone of consideration can be extended upto 5 times of the number of vacancies.
He contended that the zone of consideration, cannot be extended indefinitely. Since even after extending zone of consideration 5 times, no SC/ST candidates was available, none of them could be called for the written test. He submitted that the respondents, in view of this, kept promotional post of SC/ST vacant and in the panel declared on 8.5.2006 only one candidate against unreserved vacancy has been included. The learned Counsel stated that as per provisions contained in Para 203.6 of IREM Vol. 1 when adequate number of SC/STs are not available,' the field is extended 5 times the number of vacancies and only SCs/STs coming in the extended field are to be considered. In this case, even after extending the zone of consideration 5 times of the vacancies no SC/ST candidates was coming in the field.9. The learned Counsel for respondents submitted that in the stand-by list, which is used in case unwillingness is received from any candidate included in the main list 2 SCs and one ST were included. In the seniority list circulated by letter dated 6.11.2006 applicants No.3 and 4 appear at SI. Nos. 36 and 43, whereas the applicant No. 2 does not appear even within 56 in the integrated seniority list. The learned Counsel stated that in spite of extending all possible concessions available for SC/ST no SC/ST was coming in the zone of consideration and therefore no one could be called for selection.
10. The learned Counsel for the respondents stated that the contention of the applicants that they should be called on the basis of eligibility has no merit. All the instructions relating to selection provide for the zone of consideration primarily for giving due weightage to seniority. The selection cannot be done merely on the basis of eligibility. The learned Counsel for the respondents stated that there is no violation of the ratio laid down by the Apex Court. In the case of R.K. Sabharwal (supra), the Apex Court had laid down the ratio of post-based roster thereby meaning that a post vacated by particular category should be filled up by that category alone. In view of this, one post of SC and one post of ST was notified. It is a different matter that since no SC/ST was available even within the extended zone of consideration these posts could not be filled up. He contended that the posts are not being given to any person of unreserved category. In the case of K. Ameer Khan (supra), the Apex Court had held that "selection made without reserving requisite number of posts for SC/ST is not proper. In this selection requisite number of posts were reserved for SC/ST. Another verdict relied upon by the applicant is of CAT Bombay Bench in the case of Trilokchand Verma (supra). The learned Counsel contended that issue in that, case was totally different since it related to adjustment of SC/ST employee in the general quota who had passed the selection according to general standards. In view of the facts in this case, this ratio is also of no help to the applicant. Learned Counsel contended that the O.A. deserves to be dismissed.
11. We have heard both the learned Counsel and have gone through the material placed on record. The first relief sought in the O.A. is for a declaration that the action of respondents, in calling 11 general candidates for filling up of one post, is illegal and the respondents be directed to call only 5 general candidates. As per the instructions relating to the zone of consideration for promotion, the initial field is three times the total number of vacancies and not separately three times the vacancies for general and SC/ST candidates. Further, as mentioned in the written statement in view of Railway Board circular dated 10.1.1986 in addition twice failed candidates are to be called.
We, therefore find that the action of respondents in including the 11 names in the zone for consideration is as per extant instructions.
Further, since no one out of these 11 candidates have been impleaded as a party respondent even consideration of such relief is not within the legal framework.
12. The thrust of the arguments from the applicants has been that after the verdict of the Apex Court in the case of R.K. Sabharwal (supra), the Railway Board Circulars issued before the year 1995 will not hold good to the extent they are in conflict with the ratio laid down by the Apex Court. The Railway Board vide its letter dated 16.11.2005 had clarified that its instructions contained in Circular dated 21.8.1997 shall also apply for promotion, from Group 'C' to Group 'B' post and within Group 'B' categories. It is also true that once the Apex Court has laid down certain ratio, the instructions of the Railway Board to the extent they were in contravention of the ratio of the Apex Court will not be legally sustainable as held by the Apex Court in the case of MA. Hindustan Aeronautics Limited, Bangalore v. Commissioner of Income Tax, Karnataka , the relevant portion is set out below: that the circulars or instructions given by the Board are no doubt binding in law on the authorities under the Act but when the Supreme Court or the High Court has declared the law on the question arising for consideration it will not be open to a Court to direct that a circular should be given effect to and not the view expressed in-a decision of the Supreme Court or High Court.
13. We observe that the respondents had notified one post for SC and one post for ST out of a total of 3 and there is nothing on the record to show that the number mentioned for SC/ST was inadequate. The action of respondents is, in no way, against the ratio of the Apex Court.
14. The applicant has placed reliance on a circular dated 16.6.1992 of the Railway Board on the issue of zone of consideration. However, we observe that Para 2.1 (ii) relied upon by the applicant in this regard also states that, "it should, however, be ensured that the number of persons being called for selection should not exceed three times the number of vacancies". It further says in 'Para 2.1 (iii) that "if the number of SC candidates who have become available for consideration for promotion is even less than the number of vacancies to be filled, unreserved candidates equal to three times the difference will be called for selection".
15. The applicant has not placed anything on record to substantiate his contention that in case even after extending the zone of consideration to 5 times the number of vacancies adequate number of SC/ST candidates are not available then the zone of consideration should be extended further. On the other hand, the Railway Board letter dated 15.2.2002 (Exhibit-R-5), which was issued in consultation with the DOPT states that if no one is available against a reserved vacancy, then only the unreserved vacancy should be filled. The Railway Board in its circular dated 7.8.2002 has further clarified the procedure for determining the zone of consideration for promotion from Group 'C' to Group 'B' post.
In the cited example of 14 vacancies including two SC and one ST, the initial field for consideration came to 53 employees, by adding 11 employees who had failed twice in earlier selection. Since 21 employees were not willing, this number was added to 53 making a total of 74. It is clearly mentioned in the circular that: However, if no such candidate is located there is no provision under the extant rules, for going down the seniority list further for search of an ST candidate since the field has already been extended due to other reasons upto 74 point in the seniority list i.e. more than the J5 times the number of vacancies (14 x 5 = 70).
Thus, there can be a situation when reserved vacancy is not filled up for want of availability of candidates within the zone of consideration as per the circulars of the Railway Board issued from time to time. The decision to further liberalise the determination of zone of consideration for SC/ST e.g. inclusion of those having length of service in the feeder grade equal to one already in the zone is a policy matter and is in the domain of executive Government. Moreover, after 81st Amendment to the Constitution whereby Articles 16(4B) was inserted, the carry-forward vacancies will not be taken into consideration while determining the ceiling of 50% reservation of the total number of vacancies.
16. In view of the foregoing, we observe that the action of including only one general candidate in the panel against three notified posts one unreserved, one SC and one ST, is in accordance with the rules. The O.A. is devoid of merit and is therefore dismissed, with no order as to costs.