Judgment:
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER
The grievance of the applicant in this case is that the respondents have not promoted her as Office Superintendent-II (OS-II for short) in the scale of Rs.5500-9000 with effect from 7.8.2003 i.e, the date on which the viva voce in the Departmental Selection was dispensed with. She has, therefore sought a direction to the Respondents to promote her as O.S.II with effect from 7.8.2003 and grant her all consequential benefits arising on such promotion.
2. The applicant was initially appointed as Office Clerk on 20.6.1981 in the Operating Branch, Southern Railway, Palghat. She was later promoted as Senior Clerk from 1.7.1984 and as Head Clerk with effect from 17.9.1992. While continuing so, vide the Annexure A-1 letter dated 4.12.2002, she along with 12 others listed on the basis of their seniority, were alerted to be in readiness for selection to the post of O.S. II in the scale of Rs.5500-9000. The applicant was at SI.No.6. The selection procedure involved written test and vica voce. There were altogether 5 posts of O.S.II to be filled up. Out of them, 4 were unreserved and 1 was reserved for ST. The written test was held on 11.1.2003. As the applicant could not attend the test as she was sick, a supplementary test was held on 19.2.2003. According to the Annexure A-2 result, she along with 2 other persons, namely, one Ms S.K.Saraswathi and one Mr K Sathiarajan have been declared qualified in the written test and they were alerted for the viva voce test to be held shortly. But when the final result was published vide Annexure A-3 memorandum dated 23.6.2003, only Shri Sathiarajan was placed in the panel for promotion as OS.II, leaving the balance three posts unfilled.
3. Later, vide the Annexure A-4 circular No.121/2003 dated 7.8.2003, the Ministry of Railways have issued the revised procedure for holding the selection for promotion to the posts classified as Selection" dispensing with viva voce in the departmental selection except in the cases of selection for promotion to the post of categories of Law Assistants, Physiotherapists, Telephone Operators and Teachers. Even then, according to the applicant, the aforesaid 3 posts were kept vacant and those who have qualified in the written test including she were not promoted. Thereafter, on the implementation of the cadre restructuring of Ministerial staff of Operating Branch with effect from 1.11.2003, cadre strength of O.S.Gr.II has increased from 6 to 8 thereby increasing the number of vacancies to 5. Against those 5 vacancies existing as on 1.11.2003, vide Annexure A-5 order dated 4.8.2004, the Respondents placed the following 5 officials in the panel for promotion as O.S Gr.II in the scale of Rs.5500-900. In the order of their seniority:
i) S.Sivanathan(SC)
ii) Saframma Thangaraj
iii)K.Sathyabhama
iv) Hamsa Thattarthody
v) M Chandran(SC)
The first person in the panel, namely, Shri S Sivanathan was to be promoted against the restructured vacancy and others at Sl.No.2 to 5 were to be promoted with prospective effect. All the 5 employees empanelled for promotion were those who have failed in the written examination in the previous selection whereas the applicant has qualified in it. From the said panel of 5 persons, two of them were promoted on ad hoc basis to the post of O.S.I in the scale Rs.6500-10500 vide the Annexure A-6 letter dated 1.6.2006 and thus, 2 more vacancies in the post of O.S.II have arisen on 1.6.2006. Another vacancy has also arisen due to the voluntary retirement of one Smt Saramma Thankaraj. However, vide the Annexure A-7 letter dated 18.8.2006, the selection to fill up only 2 vacancies was initiated and 5 Head Clerks of the Operating Branch including the applicant were alerted to be in readiness to attend selection. In the final selection conducted, the applicant and one Smt Ancy John were selected and empanelled for promotion as O.S.Gr.II and promoted accordingly as per order dated 4.12.2006 (Annexure A-8). Applicant joined the aforesaid post on the same day.
4. The applicant contended that while she was entitled to be promoted as O.S.II as early as in June 2003 and she was denied the promotion due to the arbitrary action of the respondents. She has, therefore, submitted the Annexure A-9 representation dated 16.12.2006 requesting the respondents to promote her from 7.8.2003 i.e, the date on which the viva voce in the departmental selection was dispensed with and to grant all consequential benefits. As there was no response to the aforesaid representation, the applicant has filed the present O.A.
5. Respondents have filed a reply wherein they have averred that the O.A is badly hit by limitations and it is liable to be dismissed on that score alone as the cause of action had arisen in the year 2003 and the present O.A was filed only on 28.10.2007. They have also submitted the Anenxure A-9 representation dated 16.12.2006 said to have been submitted by the applicant has not been received by them. In this regard, they have relied upon the judgment of the Hon'bIe Supreme Court of India in Ex.Capt. Harish Uppal vs. Union of India ( 1994 ( 2) AISLJ) 177) wherein it has been held, " it is well within the policy of law that the parties should agitate their rights and remedies promptly and not sleep over their rights."
6. On merits, they have submitted that vide Annexure A-1 Memorandum dated 4.12.2002, 12 eligible employees including the applicant were alerted to be in readiness to fill up 5 vacancies of O.S. Gr.II consisting of 4 unreserved vacancies and 01 ST vacancy. The said selection consisted 100 marks apportioned as under :
I. Professional Ability = 50 Marks i.e.
a) Written test - 35 Marks
b) Viva - Voce - 15 Marks
II. Personality, Address, Leadership Educational qualification-20 Marks
III. Record of Service -15 Marks
IV. Seniority -15 Marks
Total = 100 Marks
A candidate belonging to unreserved community has to secure both a minimum of 60% of marks in the written test for qualifying to appear for Viva Voce and a minimum of 30 marks out of 50 marks (i.e 60%) under the heading "Professional ability" and 60% in aggregate for being placed in the panel. Since none of the participants including the Applicant have secured the qualifying marks of 60% in the written test, the selection committee, with due approval of the competent authority, awarded 5 Grace marks to all those appeared in the written rest. By adding the said Grace marks, three employees including the applicant became eligible to appear for the viva -voce. Another employee, by name, Smt K.Sathybhama, by virtue of adding notional seniority marks also became eligible for Viva-voce. All of them attended Viva-Voce on 16.06.2003. However, only one candidate Viz. Shri.K.Sathiyarajan had obtained 31.6 out of 50 marks ( i.e 22.06 in Written and 09 in Viva-Voce). He has scored 63.02% in Professional Ability and secured 63.6% in aggregate. Hence he alone was empanelled for the post of OS-II. The selection committee had in fact recorded in the Proceedings that the following employees have been superseded as they failed to secure the qualifying marks in "Professional Ability", their performance was not up to the required standards and they were not able to answer even simple questions pertaining to their day to day routine working.
1. J/T 1292 Smt T.K.Sathyabhama, HCI/Optg.
2. 2. J/T 1757 Smt. J.Anusuya, HC/Optg
3. J/T1760 Smt. S.K.Saraswathy, HC/Optg.
The applicant has scored only 21.5 marks out of 35 in written test and 05 marks out of 15 in Viva-Voce making the total of 26.05 marks out of 50 against the minimum qualifying marks of 30 marks out of 50 i.e 60% under the head Professional Ability . Since the applicant has not secured required minimum qualifying marks she was not empanelled and was not recommended for promotion as O.S. Gr.II.
7. As far as elimination of Viva Voce in the departmental selections excepting some categories made vide Annexure A-4 Railway Board's letter No. E (NG) 1/2000/PMI dated 07.08.03 is concerned, it was made clear that the revised procedure will be applicable to selections notified on or after the date of issue of the said letter. Thus it became operative from 07.08.03 only. Since the selection in which the applicant has participated was notified in the year 2002, the provision regarding elimination of Viva-voce was not applicable. Further, as per the extant rules, the next selection was to be held only after a minimum time gap of 6 months from the date of approval of the panel finalised as a result of the first selection. The impugned panel was approved on 19.06.2003. In the meantime, the restructuring of certain cadres with revised percentages indicated therein was notified vide Railway Board's letter No. PC-III/2003/CRC/6 dated 9.10.03 with effect from 1.11.03. The Railway Board has also issued revised instructions, vide Annexure R-1 letter dated 6.1.04 stating that if an individual Railway servant becomes due for promotion to a post classified as a "selection" post, the existing selection procedure will stand modified to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written and or Viva-voce test. The special benefit of the promotion w.e.f. 01.11.2003 was available only for vacancies arising out of restructuring and for other vacancies, the normal rules of prospective promotion from the date of filling up of vacancy was to apply. They have also submitted that the cadre strength of OS Gr.II was increased from 7 to 8 after the cadre restructuring of the ministerial staff of the operating branch issued vide Memorandum No.J/P524/Cadre restructuring/2003 dated 23.04.2004. As on 1.11.03, there were 6 vacancies i.e. vacancies remaining after selection 4, vacancy due to promotion of Smt. P. Kunhilakshmi as OS I from OS II on 28.7.03 01 and 1 additional vacancy due to Cadre restructuring. Out of 06 vacancies, 01 vacancy was kept unfilled due to ST short fall. For the remaining 5 vacancies (UR-4, SC-1), 5 employees were recommended for being placed in the panel for promotion as OS Gr. II/Optg in scale Rs.5500-9000 by a duly constituted selection committee duly adhering reservation rules, against the vacancies arising out of restructuring and normal vacancies existed as on 1.11.03 through the modified selection procedure as per the instructions contained in Annexure R-1 Board's letter. The panel was published vide A-5 Memorandum dated 4.8.04 and promotion order issued vide office order No.T2 14/2004 dated 13.8.04 in favour of the following employees.
1. S. Sivanathan
2. Saramma Thangaraj
3. K. Sathyabhama
4. Hamza Thattarthody
5. M. Chandran (SC) Against one vacancy reserved for SC Item No:1 was fitted against restructured vacancy and Item No:2-5 were fitted against existing vacancies. All the employees promoted against 4 UR vacancies were seniors to the applicant and none of the Junior UR employees had superseded her. Hence the applicant's claim for considering her for promotion on the basis of having qualified in the written test already in an earlier selection is only imaginary and no rules permit the same. They also denied the contention of the applicant that she should have been considered for the vacancies against which adhoc promotions have been ordered vide A-6 order. They have submitted that the promotion ordered to two incumbents as OS-I in scale Rs.6500-10500 for a short spell from 1.6.06 to 31.3.07 was purely on adhoc/ officiating arrangements only against the posts / vacancies controlled by Headquarters. These vacancies cannot be taken as regular vacancies for assessment of vacancies to fill up the post of OS Gr.II which is a Divisional controlled post. The above two employees are now working as OS Gr.II only. In order to fill up 2 vacancies (UR-1 ST-1) as on 1.4.06, a selection was initiated to fill up the post of OS Gr.II/Optg and alert notice to this effect was issued vide Memo No.J/P 608.VIII/Optg./Vol.II dated 18.8.06 (A-7). Two employees including the applicant were selected and empanelled for promotion as OS II and the panel was published vide Memo. No.J/P 608/VIII/Optg./Vol.II dated 22.11.06 promotion order No.T2 32/06 was issued on 4.12.06 (A-8).
8. We have heard the learned counsel on both sides. We have also perused the relevant records made available by the respondents. The claim of the applicant is to promote her as O.S.II with effect from 7.8.2003, the date on which the viva voce in the departmental selection was dispensed with vide, the Annexure A-4 circular of the same date. Undisputedly, the written test for selection as O.S.II was held on 19.2.2003. Though the Applicant was declared qualified in the written test with grace marks of 5, she failed in viva voce and thereby did not get the required minimum qualifying marks. As her junior Shri K Sathiarajan has fulfilled the criteria for selection, he was empanelled for promotion as O.S.II vide Annexure A-3 letter dated 23.6.2003 and he was promoted accordingly. Therefore, her claim for any promotion as O.S.II on the basis of the aforesaid written test and viva voce ceased to exists for all the time to come. Thereafter, the Railway Board has issued the Annexure R-1 letter dated 6.1.2004 regarding restructuring of Group C and D cadres. By said letter, the Railway Board has given a one-time exception by special dispensation and the existing selection procedure was modified to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written test and viva voce. Accordingly, the applicant's seniors were promoted as O.S.II vide Annexure A-5 Memorandum dated 4.8.2004. It is immaterial whether they had earlier failed in the written test held in the year 2003 in which the applicant was declared as passed. Subsequently she was considered for promotion in her turn and she was promoted as O.S.II with effect from 4.12.2006. The Annexure A-4 circular dispensing with viva voce has only prospective effect and it cannot be made applicable to a selection made prior to its issuance. In the result, the O.A is dismissed. There is no order as to costs.