General Manager, Northern ... vs Sher Singh & Ors.
2013 Latest Caselaw 663 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision : February 12, 2013

+                                WP(C) 7724/2010

       GENERAL MANAGER, NORTHERN RAILWAYS ...Petitioner
               Represented by: Mr.Jagjit Singh, Advocate.

                                        versus

       BRIJ MOHAN & ORS.                           .....Respondents
                Represented by: Mr.Anuj Aggarwal and Mr.Mannu
                Mohan, Advocates for R-1.

+                                WP(C) 209/2011

       GENERAL MANAGER, NORTHERN RAILWAYS ...Petitioner
               Represented by: Mr.Jagjit Singh, Advocate.

                                        versus

       SHER SINGH & ORS.                          .....Respondents
                Represented by: Mr.Kedar Yadav, Advocate for R-1.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. Respondents Brij Mohan and Sher Singh are employed as 'Mali' with the Northern Railway. Both of them challenged order dated April 17, 2009 under which a panel of those who had successfully cleared the selection process to be promoted as JE-II/Horticulture was notified, and in which Moti Lal and Piray Lal, both junior to them (and impleaded as

private respondents before the Tribunal) found a mention, amongst other candidates.

2. OA No.2084/2009 filed by respondent Brij Mohan was allowed by the Tribunal vide order dated August 09, 2010, and following the same, OA No.2951/2009 filed by Sher Singh was allowed by the Tribunal vide order dated September 28, 2010.

3. In the 2 captioned writ petitions said two orders dated August 09, 2010 and September 28, 2010 have been challenged.

4. Since the main reasoning of the Tribunal is contained in the order dated August 09, 2010 allowing OA No.2084/2009 which is a decision spanning 17 pages and the order dated September 28, 2010 sweeps only two pages, we shall be noting the reasoning of the Tribunal as per the order dated August 09, 2010 and shall be referring to the pleadings of OA No.2084/2009.

5. The non-disputed facts are that as per the applicable Recruitment Rules for the post of JE-II/Horticulture, 1/3rd posts have to be filled up by promotion from amongst: (i) Mali, (ii) Mali Khalasi and (iii) Field Man. Para 219 of the Indian Railway Establishment Manual Volume I having statutory force stipulates the procedure to be adopted by the Selection Board governing promotions of the staff to Group-C posts and we highlight that the post of JE-II/Horticulture is a Group-C post. Inter alia, vide sub-para (g) of para 219 it is stipulated:-

"Selection should be made primarily on the basis of overall merit, but for the guidance of Selection Board the factors to be taken into account and their relative weightage are laid down below:-

       Factor/headings               Maximum Marks Qualifying
                                                   Marks


        (ii) Record of Service       30                   -
       (iii) Seniority              20                   -

6. In OA No.2084/2009 filed by Brij Mohan he pleaded that persons junior to him (impleaded as private respondents) were illegally and arbitrarily promoted. He pleaded that as per an order issued in August 2006 by the Head Quarters for making selection the ACR gradings had to be considered with marks assigned as under:-

       "1. Outstanding                 10 marks
       2. Very Good                    08 marks
       3. Good                         06 marks
       4. Average                      04 marks
       5. Below average                02 marks"

7. He further pleaded that as per procedure at least 60% marks in the service record had to be obtained meaning thereby at least 18 marks out of 30 assigned to 'Record of Service‟. He pleaded that no adverse remark or an advisory note was ever served upon him. On the strength of these pleadings he questioned two persons junior to him being promoted. He also pleaded that for Group D employees ACRs were never written and pleaded that the assessment of the candidates had to be based on the service record and professional ability determined at a written exam.

8. In the pleadings, Brij Mohan never questioned 20 marks out of 100 being assigned to seniority.

9. In an identically worded Original Application which was filed by the same counsel, Sher Singh pleaded likewise.

10. Allowing OA No.2084/2009 the Tribunal has noted that as per law declared by the Supreme Court in the decision reported as 2008 (8) SCC 725 Dev Dutt v. UOI & Others, if below benchmark ACR grading were not

intimated to a candidate, prejudice would be caused if at a DPC the below benchmark ACR grading is considered. It was noted by the Tribunal that as per said decision the employee had a right to make a representation against the below benchmark ACR grading.

11. Noting as aforesaid, in para 6.2 of the opinion the Tribunal culled out, what according to it, were the two basic issues which required a consideration. We quote para 6.2. It reads as follows:-

"However, two basic issues seems to emerge which require a consideration before adjudication in the claims in the O.A. (a) whether it was correct to treat the selection as a departmental selection and includes seniority as a factor in the light of the given instructions and the judgment of the Apex Court in M.Ramjayaram v. General Manager South Central Railway & Ors. (1996) 1 SC (SLJ) 536. (b) tenability of relying upon an „average working report‟ which admittedly had not been communicated to the employee."

12. With reference to sub-para (g) of para 219 of the Indian Railway Establishment Manual Volume I, the Tribunal highlighted that since the post was a selection post, as held by the Supreme Court in M.Ramjayaram's case (supra) the selection had to be made on the basis of overall merit requiring seniority to be ignored. The Tribunal further opined that since Brij Mohan, in relation to the record of service was treated as an 'average' worker, his service record had an adverse impact upon him and since same was not communicated to Brij Mohan, applying the law declared in Dev Dutt's case (supra), the selection was held to be vitiated on two counts. Firstly, giving weightage to seniority and secondly not communicating to Brij Mohan that his service profile was average.

13. Now, in the pleadings constituting the two Original Applications, it is not the case of either Brij Mohan or Sher Singh that no marks could be assigned for seniority. On the contrary the grievance was

that the suitably assessment has been so manipulated that persons junior to them were promoted. It is apparent that the Tribunal has made out a case outside the pleadings.

14. The pleadings made by Sher Singh in the Original Application filed by him would reveal that in consonance with the pleadings in para 4.5 made by Brij Mohan even he pleaded that for Group-D employees, ACR is not written. In other words, the Selection Committee did not have any ACRs of Malis, Mali Khalasis or Field Man.

15. The record would reveal that that the personal files were screened with reference to the commendations earned by the employees for good work and general comments made by their superior officers pertaining to the working of the said employees. It was in said context that the DPC tabulated, on an overall purview of the service record, the marks which they assigned to the candidates and not by grading them 'Below Average‟, „Average‟, „Good‟, „Very Good‟ or „Outstanding'. Thus, the question of applicability of the law declared by the Supreme Court in Dev Dutt's case (supra) did not even arise. Dev Dutt's case would apply when for a promotion a benchmark is fixed and the employee concerned is graded below the benchmark, for the reason only then prejudice would be caused to an employee.

16. On the issue of the applicability of the law declared by the Supreme Court in M.Ramjayaram's case (supra) we note that the Supreme Court was considering promotion to the post of Law Assistant, a selection post. Weightage to seniority was held to be illegal, not because it was per se impermissible to accord any weightage to seniority, but on account of the fact that the eligible candidates were not from the same unit but were from different units. The Supreme Court noted para 320 of the Indian Railways

Establishment Code on the subject: Relative seniority of employees in an intermediate grade belonging to different seniority units appearing for a selection post in higher grade. The Supreme Court noted that the Rule indicated that in assigning inter se seniority, irrespective of the date of confirmation of an employee the continuous length of service in the higher scale of pay was giving preference to the seniority over the persons who are drawing less scale of pay in a selection and it was in said context it was held that in the facts of said case, weightage to seniority was not warranted since Rule 320 stood excluded.

17. The Tribunal has glossed over the said distinction in the instant case.

18. The direction issued by the Tribunal is to ignore the seniority and redraw the list. Now, as per Brij Mohan and Sher Singh, the two private respondents were junior to them and this would mean that Brij Mohan and Sher Singh got more marks on account of their seniority. Thus, even if we were to exclude seniority weightage to be given, the private respondents would still succeed in the race.

19. We conclude by noting that there being no ACR gradings, the Selection Committee made an assessment of the service profile of the candidates and assigned marks. There was no benchmark prescribed and thus, Dev Dutt would not apply. On the issue of assigning some weightage to seniority, the decision in M.Ramjayaram's case (supra) is not applicable on the facts of the instant case and assuming that it is, in the facts of the instant case, the weightage to seniority being removed would still entitle the private respondents before the Tribunal to be placed ahead of Brij Mohan and Sher Singh and thus it would be useless to issue a direction compliance whereof would be an idle formality with the same result being reached once again.

20. The two writ petitions are allowed. Impugned orders dated August 09, 2010 allowing OA No.2084/2009 and September 28, 2010 allowing OA No.2951/2009 are set aside and both applications are dismissed but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE FEBRUARY 12, 2013 srb