JUDGMENT A.K. Sikri, J.
1. The controversy involved in this petition revolves around a narrow compass. The issue which is raised is as to whether it was permissible for the official respondents/railway authorities to club all the vacancies for the years 1994 and 1995 and hold one selection therefore or the yearwise panel against the respective years vacancies should have been prepared.
2. The facts surrounding the aforesaid controversy can also be minisculed. The petitions are Sr. Ticket Collectors in the grade of Rs. 1200-2040. Next promotion is to the post of Head Ticket Collector/Head TTE. This post is a selection post which is to be filled up after holding written examination. For some reasons, no such examination could be conducted and selection made in the year 1994. However, in the year 1995 the Railways notified 45 vacancies of the Head Ticket Collector vide Notification dated 14.9.1995. Written examination was held on 28.10.1995 and thereafter another examination held on 6.8.1996 and results thereof were declared on 22.8.1996. 76 candidates were declared successful. A panel of 42 candidates was declared against the vacancies for the year 1993, 1994, 1995 and 1996. The names of the petitioners were not in the said panel.
3. It may be mentioned at this stage that the petitioner Nos. 1 and 2 had been promoted as Head Ticket Collector/Head TTE on ad hoc basis vide order dated 27.6.1995. This arrangement presumably was done till the regular selection is made. Since the petitioners were not found successful in the aforesaid selection, on 13.9.1996 orders were passed by the official respondents seeking to revert these two petitions. At this juncture the three petitioners filed O.A. No. 2065/96 for quashing of the impugned order dated 13.9.1996 and challenged the selection process. Interim orders were passed on 14.10.1996 for maintaining status quo. O.A. was, however, ultimately dismissed by the Tribunal vide order dated 20.11.1997. The petitioners rushed to this court and filed the instant writ petition in which again interim protection was given vide order dated 9.1.1998 directing these official respondents not to revert the petitioners No.1 & 2. This is how these two petitioners are still continuing to work on the post of Ticket Collector/TTE albeit on ad hoc basis.
4. The question which is to be considered has already been formulated above. Mr. B.B. Rawal, learned counsel appearing for the petitioner submitted that having regard to the OM dated 24.4.1990 of the Department of Personnel and Training and Administrative Reforms, it was not permissible for the Railways to club all the vacancies for the aforesaid years and conduct single test and thereafter prepare a single panel. he submitted that by not year marking yearwise vacancies and holding the test for each year the petitioners have been prejudiced inasmuch as they have lost chances for appearing in test every year. The learned counsel in support of his submission relied upon the judgment of the Apex Court in the case of Vinod Kumar Sangal v. Union of India and Ors. . He also referred to an unreported judgment dated 18.3.1999 of the same Court rendered in Civil Appeal Nos. 1426-1427 of 1995 entitled Union of India and Anr. v. R.N. Gautam and Ors.
5. Mr. P.S. Mahendru, learned counsel appearing for the respondents, on the other hand, supported the reasoning given by the Tribunal to the effect that the case in question was governed by the Rules of the Railways and submitted that the O.A. of the petitioners was rightly dismissed. His plea was that the Railway Administration had separate selection procedure for promotion of Group 'C' staff as prescribed in Section 'B' Chapter II of the Indian Railway Establishment Code Volume-I. Since the promotion was to the selection post, it was to be filed by positive act of selection made with the help of Selection Boards which included the process of written test and/or viva voce test. It was further stated that there was no requirement in the aforesaid establishment code for holding selection every year. More over the panel once prepared on the basis of selection was to remain valid for two years and, therefore, question of yearwise panel on the basis of yearwise vacancies did not arise. In fact, as noted above, these very reasons were given by the Tribunal while dismissing the O.A. of the petitioners.
6. After giving our considered thought we are of the opinion that the learned Tribunal misdirected itself by not addressing to the question involved which was raised by the petitioners. There is no quarrel about the selection process prescribed in the Indian Railways Establishment Code which the official respondents are bound to follow while making selection to the post of Head TTE. However, the contention of the petitioners before us as well as before the Tribunal was that while making such selections in terms of OM dated 24.4.90 the respondents were supposed to adhere to yearwise vacancies and prepare yearwise panel. Although it noticed this argument of the petitioners with reference to aforesaid OM dated 24.4.90, the learned Tribunal has not at all discussed the impact of the aforesaid OM.
7. Mr. Mahendru, as pointed out above, had argued that in view of the specific provisions contained in the Establishment Code prescribing the procedure for selection, OM dated 24.4.90 would have no application. The contention is misconceived. There is no dispute that if the statutory rules operate in a particular filed, no administrative instructions contrary to such specific rules can be given effect to and it is the statutory rule which will sway the field and operate in preference to administrative instructions. However, that would be a position if administrative instructions run contrary to the statutory rules as administrative instructions cannot supplant the statutory rules. At the same time it is also trite law that administrative instructions can fill the gaps and be supplemented to the statutory rules if they do not occupy the same field. In the instant case there is no provision in the Establishment Code to the effect that if the selection is not held in a particular year and the selection are made in the subsequent years, vacancies can be clubbed. The statutory rules are silent about this. As pointed out above, it is only mode and procedure for filling up of the post of Head TTE by selection which is prescribed. It is altogether a different matter that when such selection is not held in a particular year and is held in subsequent year whether the vacancies can be clubbed. As Establishment Code does not provide for such contingencies this OM dated 24.4.90 issued by DOPT shall govern this aspect.
8. This is no more res integra and has already been conclusively determined by the Supreme Court in series of judgments including in the case of Vinod Kumar Sangal (supra). Relying upon and or interpreting the very same OM the Supreme Court ruled as under:
"7. In view of the aforesaid explanation that has been offered by the respondents for non-holding of the DPC during the period the reorganisation of the Department was under process may be justified. But when the DPC met in 1985 was it not required to make the selections on yearly basis for the vacancies of each particular year? The Office memorandum dated 24.12.1980 clearly postulates that where the DPC is unable to meet at regular intervals for reasons beyond control, the first DPC that meets thereafter shall determine the actual number of regular vacancies that arose in each of the previous year/years and the actual number of regular vacancies proposed to be filled in the current year separately and consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards and prepare a selection list for each of the years starting with the earliest year onwards and on that basis prepare a consolidated select list. From the affidavit of A.K. Bhandari, Director, GSI dated 23-3-1995, filed on behalf of the respondents, it appears that one regular vacancy occurred in the year 1980 which was filled by ad hoc appointment of the appellant and the next single vacancy occurred in 1982 which was also filled up on ad hoc basis and that three vacancies occurred in the year 1983 which were also filled up on ad hoc basis. It has also been stated in the said affidavit that on 22-12-1984 the Central Region got allotment of seven vacancies of Senior Technical Assistant (Drilling ) - 6 promotion and one direct recruit - on account of regionalisation of Group 'C' cadre and that for making selection for 6 posts to be filled by promotion the DPC met on 15-1-1985 and made selection for all 6 promotional vacancies.
9. Relying upon the aforesaid judgment, order dated March 18, 1999 in R.N. Gautam's case (supra) was passed by Supreme Court in the case of the Railways itself which related to the selection to the post of Ticket Collector holding that bunching of vacancies was impermissible.
10. This writ petition is accordingly allowed. As a consequence the impugned judgment of the Tribunal as well as preparation of single panel made on 4.9.1996 is quashed. The respondents are directed to earmark yearwise vacancies and hold the selection against those vacancies. Since much time has elapsed, the respondents may complete the process within a period of four months from the date of receipt of copy of this judgment. Till that time the two petitioners shall not be reverted.
11. There shall be no orders as to costs.