Judgment:
1. This OA has been filed by All India Equality Forum and Ors. seeking a direction to quash notification dated 19.4.2005 whereby 238 posts of Driver Goods in grade of Rs. 5000-8000 were advertised for holding the selection (page-12) and panel dated 29.11.2005 whereby names of selected candidates were issued in the form of panel to the post of Driver Goods in grade of Rs. 5000-8000 (page-14). They have also stated that no effect should be given to Instructions of Railway Board dated 21.8.1997 as the same have already been quashed in OA No. 286/1998 in the case of R.K. Gaur v. Union of India and adopt the procedure laid down in DoP&T's instructions dated 02.7.1997.
2. It is stated by the applicants that earlier Para-140 of IREM Vol.-I dealt with the post of Driver Goods wherein only Shunters were eligible for this post. However, in the year 1996, R.B.E. No. 40/96 dated 01.5.1996 was issued whereby First Fireman and Second Fireman were made eligible provided they had sixty thousand kms. foot-plat working and they should have put in two years' service in the grade. It was further made clear that it was only in the event that Shunters were not available, the other category could be considered but provided approval of the General Manager had been taken including Shunters with less than three months' service provided they had put in total six years' service.
3. On 19.4.2005, notice was issued by respondents for selection to the post of Driver Goods in grade of Rs. 5000-8000 (page-12) but no criterion was mentioned in the said notice, therefore, this notice is not sustainable in law and the same is liable to be quashed on this ground alone. They have also submitted that total strength of this cadre is 409, out of which, 61 and 30 alone could have been given to SC and ST. On the said date, 59 SC and 12 ST persons were already holding the post so only 2 and 18 vacancies could have been reserved for SC and ST respectively. However in the said notification out of total 238 vacancies, 49 were reserved for SC and 34 for ST. Therefore, on this ground also this notification is liable to be quashed. He also submitted that in the said notification it was mentioned that list of eligible staff is mentioned as per their seniority and in case any person has objection with regard to his seniority or caste he may represent to the office within ten days, meaning-thereby, that seniority was not even finalized before holding the selection for the post of Driver Goods in grade of Rs. 5000-8000, therefore, this notification is liable to be quashed on this ground also. Applicants in the present case belong to General category. Their rights have been marred because more vacancies have been fixed for SC/ST than what should have been fixed in their category. Counsel for applicants thus prayed that OA may be allowed.
4. Respondents, on the other hand, opposed this OA. They have submitted that grievances of Group 'C' and 'D' staff of Railways are taken up by two recognized Federations namely AIRMF and NFIRM. All India Equality Forum is not a recognized association and has no locus standi to file present OA. Further OA is bad for non-joinder of necessary parties in as much as none of the candidates, who have been placed in the provisional panel for promotion, has been impleaded as respondents in the present OA. In the event, this OA is allowed, they are the persons whose rights would be affected, therefore, this OA is liable to be dismissed on this ground alone. They have relied on M.V. Ravindranath and Ors.vs. Union of India and Ors. reported in 2000 (10) SCC 474. For this purpose they have further stated that applicants No. 2 and 4 had appeared in the selection without protest but on not being declared successful, they are challenging the selection, which cannot be permitted in view of law laid down in Chandra Prakash Tiwari v.Shakuntala Shukla and Ors. reported in SLJ 2003 (3) SC 88. They have also submitted that applicants were fully aware about the details of posts reserved for SC / ST in the selection and they did not challenge this either before or even during the course of selection, therefore, now it is not open to them to challenge the posts reserved for SC / ST.5. On merits, they have explained that post of Driver Goods is a selection post and selection procedure comprises of written test and assessment of the staff under various heads for selection. All those, who secure 60% marks in the written test and in aggregates, are placed on the provisional panel on the basis of their seniority equal to the number of vacancies. Panel has been prepared after following due process of selection. They have further explained that present cadre strength of Driver Goods on Ambala Division is 299. According to the reservation roster, 45 posts are earmarked for SC and 22 posts are to be filled from ST candidates. Reservation has been done as per circular dated 21.8.1997, which is based on DoP&T's circular dated 02.7.1997 with the only exception that in Railways they have been following the practice by rounding off the points when the reserved share of percent becomes 0.5. They have further explained that such of the SC / ST candidates who are selected on their own merits, they are not to be adjusted against reserved points. In the present case, post of Driver Goods is a selection post. Thus those candidates, who have been selected on their own merits and not against reservation relaxation, have been adjusted against the unreserved points as per instructions.
Annexure A-7 is not applicable in respect of non-selection posts. They have further explained that in the seniority list attached with Annexure A-I such of the Scheduled Castes and Scheduled Tribes, who have been selected on their own merits, cannot be adjusted against reserved points. Moreover, applicants had never made any representation against the seniority fixed. Therefore they cannot be now allowed to raise this issue. In any case basic principle and formula of reservation is same as of DoP&T. The judgment of CAT, Jodhpur Bench is sub judice before the Hon'ble Supreme Court of India as leave has been granted on 31.3.2003 and Civil Appeal No. 2614/2004 is pending for final verdict. They have also explained that in the panel dated 29.11.2005, SC / ST employees shown from 156 to 196 are though junior to the applicants but they have been empanelled against the posts reserved for SC / ST as per post-base roster vide Annexure A-9. Thus they have prayed that OA may be dismissed.
6. We have heard both the counsel and perused the pleadings as well as the original records produced by the respondents. Admittedly, pursuant to notification dated 19.4.2005 applicants had appeared in the selection without any protest. Respondents have also stated categorically that no representation was given by the applicants even against the seniority assigned while issuing the list of eligible candidates. The law is now too well settled that challenge to the selection procedure / panel by those persons, who appear in the selection without protest and on not finding their name in the panel, cannot be allowed specially when selections are done in accordance with rules. At this juncture it would be relevant to quote from the judgment of Hon'ble Supreme Court in the case of Chandra Prakash Tiwari v.Shakuntala Shukla and Ors.
When a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.
It is also relevant to note that though applicants have challenged the panel, which includes names of 196 selected candidates provisionally but none of those persons have been impleaded as a party respondent in the OA. It goes without saying that if this OA was to be allowed, their rights would be directly affected, therefore, they were necessary parties. Therefore this OA is bad for non-joinder of necessary parties as well. At this juncture it would be relevant to quote from the judgment of Hon'ble Supreme Court in the case of State of Bihar and Ors.vs. Kameshwar Prasad Singh and Anr. reported in 2000 SCC (L&S) 845, wherein it was held as under: Writ petition claiming seniority and promotion - Held, in absence of persons likely to be affected by the relief prayed for, the writ petition should normally be dismissed unless there existed specific reasons for non-impleadment of the affected persons.
7. In view of above settled position, this OA could have been dismissed on these two grounds alone. However, since we have heard both the counsel and respondents have produced the original records also, we feel it would be better to decide this case on merits as well.
Eligible staff upto 3 times the number of staff to be empanelled will be called for written and / or viva-voce test. The staff employed against fortuitous short term or stop-gap promotion to the immediate lower grade in the manner otherwise than in accordance with the regular approved method of promotion will not be eligible for consideration. It is desirable to hold written test as part of a selection in respect of all initial selection grade post in the different channels of promotion, but in every case a viva-voce test shall be held. If a written test is proposed to be held, advance intimation shall be given to all eligible candidates.
9. Respondents had prepared list of eligible candidates as per seniority and even at the time of issuing notification they had given chance to those, who had any objection to the said seniority to file their objection. Even break-up of vacancies was also given in the notification by showing total number of vacancies and how many are for General / SC / ST. Therefore applicants were fully aware about it. If applicants were aggrieved they ought to have raised objection at that time but no such objection was taken. Even otherwise respondents have shown the original records, from which we find that vacancies were assessed as per the rules after going though the whole process. It is, therefore, wrong to state that SC /ST vacancies were reserved more than the requirement. It is also now well settled that those SC / ST candidates, who are selected on their own merits without taking the benefit of reserved category, are not to be consumed against SC / ST reserved points. Therefore, if SC / ST candidates have been shown in General category in view of the fact that they had been selected on their own merits without taking any benefit of the reservation, applicants cannot have any objection to it in law.
10. As far as taking approval of the General Manager is concerned, counsel for respondents submitted that no such averment has been made, yet they have shown us the original records and we find that General Manager's approval had indeed been taken in the files before issuing the notification dated 19.4.2005. Therefore, challenge to the notification is without any merit. Counsel for respondents had even produced the records of selection, perusal of same shows that roster has been maintained in the list of Driver Goods in grade of Rs. 5000-8000. Applicants No. 2 to 4 had been duly considered by the selection board. Though applicants had also got more than 60% but unfortunately the last person who is empanelled against unreserved post is at Serial No. 158 of the candidates who appeared in selection i.e.
Deepak Kumar (though he was SC candidate but he passed on his own merit, therefore, he has been shown against unreserved point.) 11. Manjit Singh was at just the next number i.e. at Serial No. 159, Mohd. Jaki Anwar at Serial No. 166 and Chet Ram at 172 and all the three candidates i.e. applicants had got more than 60% marks in aggregate but after Serial No. 155 all the persons in the panel are from reserved category, therefore, it is just hard luck that the three applicants' names could not be included in the panel dated 29.11.2005.
12. Since we have seen the original records we are satisfied selections have been done in accordance with law and no illegality has been committed by the respondents.
13. In view of above no case is made out by the applicant for interference. It is clarified that if any of the unreserved candidates is not able to join in the promotional post or some other such eventuality takes place, the next candidate i.e. Manjit Singh would be considered in accordance with law.