1. This is an application against the non-selection of the applicant to the post of Assistant Engineer (Regular) against 70% quota in Civil Engineering Department. The applicant is aggrieved by non-inclusion of his name in the panel dated 10.9.2004 for promotion to the post of Assistant Engineer.
2. The facts of the case as have been brought out from the O.A. may be summarised as follows. The applicant was original appointed as Inspector of Works Grade-Ill in the Western Railway after having been selected by Railway Recruitment Board. He is Diploma Holder in Civil Engineering. The applicant was promoted as Inspector of Works Grade-II and thereafter to the post of Inspector of Works Grade-I. At present he is working as Chief Inspector of works 7 Senior Section Engineer in the scale of pay of Rs. 7450-11,500 on regular basis. The applicant belongs to SC and as such all the benefits of reservation are available to him in the promotional posts. The post of Chief Inspector of Works is now designated as Chief Section Engineer and the next promotional post is Assistant Engineer. The respondents issued Notification dated 29.3.2004 for the purpose of holding selection for promotion to Regular 70% quota in the posts of Group-B Assistant Engineer in Civil Engineering Department. The applicant appeared for written test and obtained the qualifying marks i.e. 60% in the written test to became eligible to appear for viva voce test. Accordingly, his name was included in the list of candidates called for viva voce test, which was published on 04.6.2004. The name of the applicant is at SI. No. 85. Thereafter, he was called for viva voce test. However, in the final select list/panel the name of the applicant is not included, presumably that he is junior in the seniority list. The applicant is the senior most amongst the employees, who are in the higher scale of Rs. 7450-11,500. The respondents empaneled those persons who are junior to the applicant and are working in the pay scale of Rs. 6500-10500.
3. The respondents resisted the claim of the applicant by filing written statement. In the reply it is stated that regular selection to Group-B posts of AEN (Regular 70%) is conducted on the basis of seniority in scale of Rs. 2000-3200/Rs. 6500-10500. Notification for filling up 71 vacancies was proposed vide letter dated 29.3.2004 along with this letter were circulated two lists of eligible Group-C employees viz. List Annexure-A and List Annexure-B. Annexure-A contained names of 239 eligible employees in Group-C. Annexure-B contained names of 132 employees in order of normal seniority who are to be called for written test to the extent of number of candidates listed in Annexure-A expressing unwillingness to appear for selection.
The name of applicant appears at SI. No. 96 in the list Annexure-B. The applicant appeared in the written test conducted on 01.05.2004. List of candidates who passed the written test was circulated vide letter dated 04.6.2004. Applicant is at SI. No. 85 in the list of 92 qualified candidates in order of seniority in the written test. As already stated in the Notification dated 29.3.2004, 71 vacancies were assessed for this regular selection of AEN Group-B. Although the applicant secured qualifying marks he could not be empaneled for promotion to the post of AEN being at SI. No. 85 in the list of 92 who qualified in the written test. It is reiterated that seniority for promotion to Group-B is prepared as per date of entry into Grade Rs. 2000-3200/Rs. 6500-10500.
It is denied that respondents have empaneled persons who are junior to the applicant and are working in the scale of Rs. 6500-10500.
4. Learned Counsel for the applicant contended that by order of Railway Board No. 103/03 dated 20.6.2003 Railway Board have framed a policy for considering the reserved category candidates against general post as well as reserved post. It is stated therein that reserved category candidates who obtain qualifying marks in the written test without relaxation are to be treated as general candidates and they cannot be adjusted against the reserved posts. It is only those reserved category candidates who pass the written test by relaxed standard, are to be adjusted against reserved posts. It can be seen from the final select list or panel that eight persons belonging to SC category have been adjusted against reserved post, though they are in the normal zone of consideration and they ought to have been adjusted against general posts. The candidates upto SI. No. 80 in the eligibility list have been included in the final panel. Therefore, it is clear that the employees who are after SI. No. 80 and have passed the selection have not been included in the panel only on the ground that they are low in the seniority list. It is the case of the applicant that if the reserved candidates who come within the normal zone of consideration are to be adjusted against the general posts, then the applicant would have been empaneled against the reserved post. Therefore, non-consideration of the applicant against reserved post is wrong, illegal and arbitrary.
The applicant ought to have been considered against the reserved post and he ought to have been promoted to the post of Assistant Engineer.
It is also submitted that there are 08 posts reserved for SC and 06 posts reserved ST candidates. The respondents have adjusted all 08 candidates against SC post, though these candidates come within the normal zone of consideration and were higher in the seniority list.
Learned Counsel pointed out that Shri L.P. Ahirwar and Man Singh Bandaria are in the seniority at SI. Nos. 1 and 2. Both these candidates belong to SC category and as such though ought to have been adjusted against general post and not against reserved post and the applicant ought to have been selected against reserved post and promoted. Learned Counsel has placed reliance on a number of rulings and relevant circulars of Railway Board on the subject, that will be discussed at relevant place.
5. Learned Counsel for the respondents on the other hand contended that Railway Board letter No. 103/2003 relates to post based roster which is not applicable to promotions from Group-C to Group-B. In terms of Railway Board letter dated 06.9.2002 it has been clarified that till further orders, existing instructions presently being followed will continue to be followed for promotions from Group-C to Group-B.Accordingly 40 point rosters for promotion to Group-B are followed since percentage is not achieved. It is further contended that Group-C seniority prior to Group-B selection is prepared on the basis of date of entry into Grade Rs. 2000-3200/Rs. 6500-10500. Besides the post of AEN is classified as SAFETY CATEGORY where passing with relaxed standard is not permissible. Being a safety category question of passing examination for promotion to the post of AEN with relaxed standard does not arise. In regard to 08 vacancies reserved for SC are filled up as per seniority and as stated, seniority is prepared on the basis of date of entry into grade Rs. 2000-3200/Rs. 6500-10500 first eight vacancies are filled up by reservation provided therein. The procedure which is mentioned by the applicant is for post based roster which is not applicable for promotion in Group-B posts. Learned Counsel submitted that even though applicant has obtained qualifying marks for empanelment, he cannot secure a place being junior. Shri L.P. Ahirwar and Shri Man Singh Bhandaria are correctly adjusted against reservation provided in the panel of Group-B notified as per integrated seniority.
Learned Counsel has relied upon various circulars of Railway Board that will be discussed at the relevant place.
6. Private respondent Nos. 3,4 5 and 6 have also filed separate reply.
Learned Counsel for the private respondents reiterating the reply filed by respondents contended that the panel has been prepared in correct manner and in consonance with the spirit of various judgments of Hon'ble Apex Court on the subject matter of reservation and roster point. The applicant is estoped to challenge the selection at this stage as he did not raise his grievance against the eligibility list in which his name was shown only in the 'B' list and the SC/ST who were junior most and were included as general candidates and not the seniors like Shri L.P. Ahirwar or Man Singh. The 'B' list come into operation only when persons from 'A' list are not available. It is also contended that in the selection process envisaged under Para 204 of IREM the successful candidates obtaining 80% of the marks would be placed at the top of the panel. Evidently none of the successful candidate either from the general or the reserved category has obtained more than 80% marks so as to jump the queue in the panel on the basis of merit alone.
The post being safety post, no relaxed standard is prescribed for reserved category candidate and only criterion to see comparative merit whether one has obtained outstanding marks or not.
7. We have given anxious consideration to the rival contentions raised, arguments advanced and case law cited by learned Counsel for the parties and also perused the pleadings and material placed on record.
(a) Whether the officials belonging to SC/ST who pass the selection according to general standard and come within the normal zone of consideration can be adjusted against reserved post? (b) Whether the applicant, who has passed the selection according to the general standard but is lower in seniority list can be promoted against one of the reserved post for SC? 9. The facts of the case are not disputed that respondents issued notification dated 29.3.2004 for filling up of 71 posts of Assistant Engineer out of which 08 posts were reserved for SC and 06 posts for ST. According to roster point 10 SC posts and 06 ST posts were to be reserved. The applicant who came in the normal zone of consideration appeared for selection, since the post of Assistant Engineer is a safety post, there is no relaxation provided in the qualifying marks for SC/ST candidates. According to zone of consideration, candidates three times of number of vacancies are to be called for selection. The applicant qualified the selection in accordance with the general standard applicable to the general candidates. This fact has not been disputed by the official respondents. In reply it is stated that the Notification dated 29.3.2004 71 vacancies were proposed to filled up for regular selection of AEN Group-B. Although applicant secured qualifying marks, he could not be empaneled for promotion to the post of AEN being at SI. No. 85 out of 92 candidates who qualified in the written test. It is also an admitted position that the respondents selection list dated 10.9.2004 - Annexure A-1. Contained panel of 62 candidates and thereafter one more candidate was empaneled. Applicant was not because senior most SC candidates are adjusted against reserved posts. It is the case of the applicant that the senior most SC candidates, who passed according to general standard and who come within the normal zone of consideration are required to be adjusted against the general post and they are required to be treated as general candidates. It is also the case of the applicant if all the senior most SC candidates are adjusted against general post, in that event, he is the first SC candidate, who is required to be empaneled and promoted against the post reserved for SC.10. Learned Counsel has placed reliance on the Railway Board letter dated 07.8.2002 which reads as under: The Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training vide their O.M. No. 36028/17/2001-Estt.(Res), dated 11.7.2002 has considered the reference from various Ministries regarding adjustment of SC/ST candidates promoted on their own merit in post based reservation rosters and clarified as under: (i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. In case he is selected, he will be appointed to the post and will be adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any.
(iv) 50% limit on reservation will be computed by excluding such reserved category candidates who are appointed/promoted on their own merit.
All the Zonal Railways/Promotion Units may bring the contents of DOP&T's O.M. Dated 11.7.2002 to the notice of all concerned for information and strict compliance.
11. Learned Counsel also placed reliance on Railway Board letter dated 20.6.2003 a clarification issued in reference to Railway Board letter dated 07.8.2002. The extract of the same is quoted below: Some of the Zonal Railways have raised doubts regarding Para (i) of the above quoted letter and sought a categorical clarification as to how the SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualification is to be adjusted in the post based roster.
In this context, it is clarified that in selection posts, SC/ST candidates who are selected by applying the general standard and whose names in the select list/panel appear within the number of unreserved vacancies are to be treated as selected on their own merit. For example, suppose there are a total of 10 vacancies for which a panel/ select list is to be prepared. Out of them, six vacancies are unreserved and four are reserved for SCs./STs. First six candidates in the select list/ panel who have been selected by applying the general standard will be adjusted against unreserved vacancies irrespective of the fact whether they or some of them belong to SC or ST category, SC/ ST candidates selected for remaining four reserved vacancies, whether selected on general standard or by giving relaxations/concessions as per existing instructions on the subject, shall be adjusted against reserved vacancies. Similarly, in case of non-selection promotions, SC/ST candidates who are senior enough to be within the number of unreserved vacancies and are included in the panel/selection list without getting any relaxation/ concession will be treated as own merit candidates.
12. Learned Counsel further contended that circular dated 30.6.1999 stands superseded by clarification issued by Railway Board vide letter dated 20.6.2003. The relevant extract of letter dated 20.6.2003 is quoted below: The clarifications issued vide Board's letter No. 97-E (SCT)I/25/24, dated 30.6.1999 are superseded by Board's letter of even number dated 7.8.2002. The principles laid down vide Board's letter of even number dated 07.8.2002 should be made applicable in all the promotions held after its issue.
13. Learned Counsel also placed reliance on letter dated 27.7.2006 issued by Public Information Officer, Railway Board in reference to letter issued by Advocate of the applicant seeking information under Right to Information Act, 2005. The said reply has been annexed to annexure to the letter.
14. Reliance has also been placed in the IREM Volume-I, II rules governing promotion of Group-B post. Rule 202.3 provides: 202.3 Reservation in favour of SCs/STs. - Rules of reservation apply in filling the vacancies in Group-B on the basis of selection.
15. Learned Counsel has further placed reliance on Railway Board Circular No. 114/97 dated 21.8.199 97 dated 21.8.1997 regarding reservation roster post based in Group-C and Group-D posts of promotion category. The relevant extract of the letter is reproduced as under: Underthe existing instructions, vacancy based rosters have been prescribed in order to implement the Government's policy relating to the reservation of jobs for the Scheduled Castes and Scheduled Tribes. The application of reservation on the basis of these rosters was called in the question before the Courts. The Constitution Bench of the Supreme Court in the case of R.K. Sabharwal v. State of Punjabas well as Union of India v. J. C. Malik has held that the reservation of jobs for Backward Classes - SC/ST/OBCs should apply to the posts and not to the vacancies. The Court further held that the vacancy based rosters can operate only till such time as the representation of the persons belongs to the reserved categories, in a cadre, reaches the prescribed percentage of reservation.
Thereafter, the roster cannot operate and vacancies released by retirement, resignation, promotion etc., of the persons belonging to the general and the reserved categories are to be filled by the appointment of the persons from the respective category so that the prescribed percentage of reservation is maintained.
2. The Courts also held that persons belonging to reserved categories, who are appointed on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation.
3. With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 40 point vacancy based rosters of promotional categories shall be replaced by post based rosters. All the Zonal Railways, Production Units and Associated Offices of the Railway Board should therefore, prepare the rosters for Groups C and D posts based on principles elaborated in the Explanatory Notes given in Annexure-I and illustrated in the Model Roster as given in Annexure-II and Annexure-III.16. Learned Counsel argued that in terms of Railway Board letter dated 07.8.2002, which is a reproduction of DOPT O.M. dated 11th July, 2002, it was clarified for selection posts, SC/ST candidates selected by applying general standard and whose name appear in the selection list within number of unreserved vacancies are treated as selected on their own merit. In support of his contention learned Counsel has also placed reliance on the following decisions:(A) R.K. Sabharwal and Ors. v. State of Punjab and Ors. 1995(3) SLJ227 (SC) : 1995 SCC (L&S) 548. It was held therein: When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the unreserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. For making any provision for reservation of appointments of posts in favour of any Backward Class of citizens, it is incumbent on the State Government under Article 16(4) of the Constitution of India to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the backward classes are operative the same have to be followed.
9. A Division Bench of the Allahabad High Court in J. C. Malik v. Union of India interpreted Railway Board's Circular dated 20.4.1970 providing 15% reservations for the Scheduled Castes. The High Court held that the percentage of reservation is in respect of the appointment to the posts in a cadre. On the basis of the material placed before the High Court it reached the conclusion that if the reservation is permitted in the vacancies after all the posts in a cadre are filled then serious consequences would ensue and the general category is likely to suffer considerably. We see no infirmity in the view taken by the High Court.
(B) Indra Sawhney etc. etc. v. Union of India and Ors. etc. etc.
. It was held by Hon'ble Apex Court that: In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.(C) K. Ameer Khan and Anr. v. Gangadharan and Ors.
. Hon'ble Apex Court held: A clarification was subsequently issued on 29.7.1993 to the effect that Scheduled Caste/Scheduled Tribe candidates who have been promoted on their own merit and seniority should not be counted as reserved candidates and this has been the declaration of law made by this Court in R. K. Sabharwal v. State of Punjab ; and Union of India v. Virpal Singh Chauhan (D) Ravinder Singh v. The State of Punjab 2003(1) SCT 462. In this case the Punjab and Haryana High Court in Para 4 held: 4. The controversy in the present case squarely hinges on the law laid down by the Supreme Court in Indra Sawhneys. Union of India, 1993(1) SCT 448 which was followed by this Court in Jaskaran Singh v. State of Punjab 1995(2) SCT 65. The relevant excerpts from the judgment rendered by the Division Bench of this Court are reproduced hereunder: 6. The matter now stands finally settled by the decision of the Supreme Court in Indra Sawhney v. Union of India 1993(1) RSJ 1: 1993 (1) SCT 448 (SC), wherein their Lordship of the Supreme Court after concluding that the reservation contemplated in Clause (4) of Article 16 of the Constitution should not exceed 50 per cent, observed in Paragraph 831 of the judgment, as under: In this connection it is well to remember that the reservations under Article 16 (4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.(E) Brinder Singh Pawar v. State of Jammu and Kashmir Those who applied under the reserved category considered and selected in the open category on their own merit cannot be counted in reserved category of Defence Personal/ex-servicemen - Benefit of reservation has to be extended only to those not able to make a mark in open category.
(F) A Division Bench of CAT Bangalore in case of B. Hampanna v. The Chief Personnel Officer, South Western Railway and Ors. 2005(3) SLJ 248 observed in Para 19 as follows: No rule, instruction or law has been brought to our notice which mandates that when vacancies are notified comprising of all groups and categories i.e. reserved as well as unreserved, the reserved vacancies should be filed first. There is no rule or law, which require maintenance of different seniority list in the given cadre based on caste and communities. When a consolidated and single seniority list is to be maintained in the given cadre, the seniority subject to the element of merit has to be followed for the selection post.Hombe Gowda Edn. Trust and Anr. v. State of Karnataka 2006(2) SLJ 272 (SC) : 2006(l) SCT 197 wherein it was held: Articles 136 and 141--Binding precedents--The law laid down by the Constitution Benches of the Supreme Court and Co-ordinate Benches is binding on all subordinate Courts - Ignoring such law will be a judicial impropriety.Group General Manager (Projects), ONFC v. A.M. Saiyed it was held: Constitution of India, Article 226 - Rule of law - where the claim is based on Rules and/or policy of the Government, the Court should not proceed on the basis of affidavits and counter affidavits - It should proceed to consider the claim as per the Rule or the policy and interpret or explain the same if so required.Star Diamond Co. India v. Union of India and Ors. AIR 1987 SC 179 it was held: Supreme Court decisions laying down position in law are laws binding on all under Article 141 - Party need not be served with any notice or be a party to the said proceedings.Hindustan Aeronautics Ltd., Bangalore v. Commissioner of Income-tax, Karnataka-I Bangalore Order against which appeal has been filed to Appellate Tribunal - Cannot be revised even if relief claimed in revision is different from relief claimed before Tribunal - Revision against such order cannot be entertained even on basis of Circulars issued by Board which are contrary to law laid by Supreme Court or High Court.
18. Learned Counsel for the official respondents argued that Railway Board letter circulated under letter No. 103/03 dated 20.6.2003 relates to post based roster, which is not applicable to the promotion from Group-C to Group-B. He further argued that in terms of Railway Board letter dated 06.9.2002, it has been clarified that till further orders existing instructions presently followed will continue to be followed for promotion from Group-C to Group-B. Accordingly 40 point roster is followed since percentage is not achieved. Relevant extract of letter dated 06.9.2002 reads as under: Board vide their letter No. 95-E (SCT) 1/49/5 (2) dated 21.8.97 have issued instructions to adopt post based roster in Groups 'C and 'D' posts of promotion category. Some of the Railways have expressed doubts whether post based roster should be followed for promotion from Group 'C to Group 'B' and within Group 'B'. In this regard it is clarified that the matter is still under the consideration of the Railway Board and a final decision is likely to take some time.
Therefore, existing instructions presently being followed will continue to be followed for promotions to this Group till further orders. It is further clarified that rosters will cease to operate when the representation of persons belonging to reserved categories in a cadre reaches the prescribed percentage of reservation.
Thereafter, vacancies released by retirement, resignation, promotion, of the persons belonging to the general and reserved categories will be filled by the appointment of the persons belonging to the respective category so that the prescribed percentage of reservation in the cadre is maintained.
19.Learned Counsel also placed reliance on the Railway Board letter dated 20.11.1995.
In reference to your Railway's letter referred to above, it is clarified that the SC/ ST candidates who qualify for empanelment to a selection post with general standard will first occupy the vacancies reserved to them and the excess candidates who qualified on general standards will be adjusted against the unreserved vacancies.
SC/STcandidates selected on his own merit and seniority will have to be excluded while computing the total number of SC/ST candidates in a particular cadre post irrespective of the fact whether any one had been promoted against reserve / non-reserve point.
20. Further reliance has been placed on Railway Board letter dated 16.11.2005, which reads as under: The matter regarding adoption of Post Based Rosters for promotion from Gr. 'C to Gr. 'B' and within Gr. 'B' categories had been under consideration of the Board since long. It has been decided that instructions as contained in Board's letter No. 95-E (SCT) 149/5 (2) dated 21.8.1997 should also apply for promotion from Gr. 'C to Gr.
'B' and within Gr. 'B' categories. Further instructions as regards fixation of cadre strength in Gr. 'B' will follow.
21. Learned Counsel for respondents also placed reliance on the following decisions:(A) R.K. Sabharwal and Ors. v. State of Punjab and Ors. (supra), wherein it was held: (B) Constitution of India, Article 16 (4) - Reservation - High Court in J.C. Mallik case held that percentage of reservation is in respect of the appointment to the post in a cadre - If the reservation is permitted in the vacancies after all the posts in a cadre are filled then serious consequences would ensue and the general category is likely to suffer considerably - Held no infirmity in the High Court view.(B) State Bank of India Scheduled Caste/Tribe Employees Welfare Association and Anr. v. State Bank of India and Ors. 1996(2) SCSLJ 10 wherein it was held by Hon'ble Apex Court in Para 12 observed: Undoubtedly, Article 16 (4) enables the Government to make reservations for Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment or at the stage of promotion. This Court in case of C.A. Rajendran v. Union of India and Ors.
, has stated that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make such a reservation. Article 16(4) is an enabling provision and confers a discretionary power on the State of make reservations either at the stage of the initial recruitment or at the stage of promotion in favour of backward class of citizens which in its opinion, is not adequately represented in the service of the State.
(C) Ajit Singh v. State of Punjab 2000(1) SC SLJ 120 wherein it was held by Hon'ble Apex Court: that Article 16(4) was an "enabling provision". Merely because the reservation for backward classes was created as a reasonable classification and justified at page 691 that does not detract from the view that Article 16(4) was only an enabling provision.
(D) Further reliance was also placed upon the Apex Court decision on the case of Chairman and Managing Director, Indian Airlines v. Binod Kumar Sinha and Ors. 2002( 1) SLJ 316. It was held by Apex Court that without challenging the rule itself, its effect cannot be challenged.
22. In view of decision of Hon'ble Apex Court in case of R.K. Sabharwal (supra) and Indra Sawhney (supra) it is by now settled that persons belonging to reserved category who are appointed on the basis of merit and not on account of reservation are not to be counted towards quota meant for reservation. In view of decision of Apex Court in case of Hombe Gowda Edn. Trust & Another(supra) and M/s Star Diamond Company (supra) decisions of Apex Court are binding precedent under Article 141 of Constitution of India. In terms of Railway Board letter dated 07.8.2002 it was clarified that for the selection post SC/ST candidates selected by applying general standard and whose names appear in the select list within number of unreserved vacancies are to be treated as selected on their own merit. Railway Board letter dated 21.8.1997 was issued in implementation of the Apex Court judgment in case of R.K.Sabhaarwal v. State of Punjab (supra), and Union of India v. Virpal Singh ChauhanUnion of India v. J.C. Malik. It provides reservation roster post based for Group-C and Group-D posts. It also provides that the existing orders on the subject are deemed to have been amended to the extant therein and these orders shall take effect from 10.02.1995. It is not disputed that the post of Assistant Engineer is a selection post and Rules 201 to 202 under Rules Governing promotion to subordinate staff to Group-B posts are applicable. Rule 202.3 stipulates that rules of reservation apply in filling the vacancies in Group-B posts of selection. It is the stand of the respondents that since post based roster came into effect after issuance of Railway Board letter dated 16.11.2005 adjustment of meritorious candidates against general post will also come into effect from that date. However, we notice that this letter provides that instructions as contained in the Railway Board letter dated 21.8.1997 should also apply for promotion from Group-C to Group-B post and Group-B category. We also notice that the date of giving effect to the Railway Board letter dated 21.8.1997 is 10.02.1995 as mentioned in that letter. Therefore, these instructions shall operate with effect from 10.02.1995. This view is further strengthened by reply of the Railway Board furnished in reference to the letter dated 06.6.2006 of applicant's Advocate seeking information under Right to Information Act. The said reply annexed to the letter dated 27.7.2006 issued by Public Information Officer, Railway Board reads as under: Reply to the information sought by Mr. G.S. Walia vide his application dated 06.06.2006 is as under: It is stated that Board's letter No. 99-E (SCT)I/25/l 3 dated 07.8.2002 is regarding adjustment of SC/ST candidates appointed by promotion on their own merit against unreserved points. The aforesaid letter is applicable from prospective date. It is also applicable in promotion from Group 'C to Group 'B'.
As we have stated earlier, the decision of Apex Court in R.K. Sabharwal case (supra) are binding precedent. Therefore any circular issued by Railway Board, which are contrary to law laid down by Supreme Court or High Court has no effect. It will not be open to Court to direct the circular to be given effect to and not the view expressed in the decision of Supreme Court or High Court. In case of MA. Hindustan Aeronautics Limited, Bangalore v. Commissioner of Income Tax, Karnataka, 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.
23. So far as the reliance of the respondents on Railway Board letter dated 06.9.2002 was concerned, it is issued in reference to the Railway Board letter dated 21.8.1997. Railway Board has clarified as to how the vacancies for SC/ST are to be treated. This letter is in a clear violation of law declared by Apex Court in R.K. Sabharwal case. In view of the decision of Apex Court this letter will have no effect.
Moreover, it is not applicable in the present case as the question in this case is whether a person, who, on the basis of normal seniority is entitled to be promoted against general post if he belongs to SC/ST community and passed according to general standard. Therefore, reliance of the respondents on this letter is misplaced in view of Railway Board letter dated 07.8.2002.
24. So far as the reliance of the respondents on letter dated 20.11.1995 is concerned, in this letter, copy of Railway Board letter dated 07.9.1994 has been enclosed and clarification has been issued in reference to the Board's letter. In view of subsequent letter dated 21.8.1997 and 07.8.2002 this letter has no relevance.
25. One bestowing our careful consideration of the relevant rules on the subject and in the light of Apex Court decision in R.K. Sabharwal and Indra Sawhney (supra) we are of the considered opinion that the officials who passed according to the general standard and came within the normal zone of consideration are required to be adjusted against general post. The other SC/ST employees will be adjusted against reserved quota.
26. The next question arises for consideration whether the applicant who has passed the selection according to the general standard but lower in seniority can be promoted against one of the reserved post meant for SC. It is undeniable fact in the present case, the post of AEN is a selection post and the applicant qualified the said selection according to general standard. The respondents have adjusted all 08 SC candidates who passed the selection according to the general standard though they were sufficiently senior to be absorbed as general candidates but they have been adjusted against reserved posts. This has resulted in applicant's non-promotion though he has passed the selection according to the general standard. As we notice that many general candidates who were junior to the 08 SC candidates have been selected against general quota. Thus, the action of the respondents in adjusting the meritorious candidates against SC quota is wrong and contrary to the rules. These candidates are required to be adjusted against general seats only. The SC candidates, who passed the selection but are lower in seniority are required to be adjusted against reserved seat. In the case of District Registrar Palghat and Ors. v. M.B.Koyyakutty and Ors. 1979 SLJ 278 Hon'ble Apex Court held that High Court has power to give positive direction to promote the petitioner when all the criteria is fulfilled in the ends of justice. In this case it is not disputed that the applicant has passed the selection as general candidate and he fulfilled all the criteria. We notice that in the list of passed candidates, applicant's name is at SI. No. 85 and the last SC candidate selected as SC candidate Shri Make Venkataraman appeared at SI. No. 68. Since general candidates are in the list between SI. Nos. 68 to 84, the applicant is now at the top of the SC candidates, who passed the selection, but not placed on the panel.
27. In view of the aforesaid discussion and analysis of the rule position as well as law declared by Hon'ble Apex Court on the subject, we are of the considered opinion that the applicant is entitled to be empaneled in the select list dated 10.9.2004 and required to be promoted against one of the reserved seats for SC. Thus, O.A. deserves to be allowed. It is accordingly allowed. Respondents are directed to promote the applicant by placing him on the panel dated 10.9.2004 as SC candidate against reserved quota with all consequential benefits without affecting the promotion already made. However, the question of seniority will be left open. The above decision shall be complied within a period of one month from the date of receipt of copy of the order. No order as to costs.