Saturday, November 3, 2012

*** OA no 07/2010, 169/2010 & 383/2010 -Reffered to 3 rd M


CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION Nos. 07/2010, 169/2010 & 383/2010

TODAY, THIS THE ......... DAY OF .................., 2011

HON'BLE SMT. LEENA MEHENDALE    ...         MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR             ...         MEMBER (J)

OA No.07/2010

1. Manish Kumar Singh,
   S/o Sri Ramlakhan Singh,
   Aged about 29 years,
   Working as Senior Assistant Loco Pilot
   under the control of Chief Crew Controller,
   South Western Railway, 
   Near Hospet Railway Station,  Hospet.

2. Purushotham Kumar,
   S/o B.S. Deshmukh,
   aged about 29 years,
   working as Assistant Loco Pilot,
   under the control of Chief Crew Controller,
   South Western Railway,
   Near Hubli Railway Station, Hubli.

3. Ashish Kumar Gupta,
   S/o Sri Kedarnath Gupta,
   Aged about 28 years,
   Working as Senior Assistant Loco Pilot,
   South Western Railway Loco Shet,
   Gadag Railway Station, Gadag.

4. Pavan Kumar Pandey,
   S/o Sri Sharada Prasad Pandey,
   Aged about 32 years,
   Working as Assistant Loco Pilot,
   under the control of Chief Crew Controller,
   South Western Railway,
   Near Hubli Railway Station, Hubli.

5. Lokesh B.,
   S/o Anjaneyalu,
   Aged abut 32 years,
   Working as Assistant Loco Pilot,
   under the control of Chief Crew Controller,
   South Western Railway, Hubli.              ...                                 Applicants
(By Advocates S/Shri Izzhar Ahmed for Applicant No.1 and M.R. Achar for Applicant Nos.1,2,3 and 5 respectively)

Vs.

1. Union of India,
   Represented by General Manager,
   South Western Railway,
   South Western Zone,
   Hubli.

2. The Divisional Railway Manager,
   South Western Railway,
   Hubli Division, Hubli.

3. Senior Divisional Personnel Officer,
   South Western Railway,
   Hubli Division, Hubli.                               ...                                 Respondents

(By Advocate Shri N. Amaresh, Counsel for Railways)

OA No.169/2010

1. Shri Dhrub Narayan Pathak,
   S/o Kapil Deo Pathak,
   Aged 30 years,
   Asst. Loco Pilot, Depot Harihar,
   South Western Railway, Mysore.

2. Sri Amith Singh Chauhan,
   S/o Tejnatha Singh,
   Aged about 32 years,
   Asst. Loco Pilot, Depot. Harihar,
   South Western Railway, Mysore.

3. Shri Ashok Gupta,
   S/o Soli Saq,
   Aged about 28 years,
   Asst. Loco Pilot, Harihar,
   South Western Railwy, Mysore.             ...                     Applicants

(By Advocate Shri Izzhar Ahmed)

Vs.

1. Union of India,
   Represented by General Manager,
   South Western Railway,
   Hubli.

2. The Divisional Railway Manager,
   South Western Railway,
   Mysore Division, Mysore.

3. Senior Divisional Personal Officer,
   South Railway,
   Mysore Division, Mysore.                                    ...                     Respondents

(By Advocate Shri N. Amaresh, Counsel for Railways)

OA No.383/2010

1. Sri Brajesh Kumar Mishra,
   Age: 27 years,
   S/o Sri B.N. Mishra,

2. Sri Priyesh N.V.,
    Age: 29 years,
   S/o Sri N. Knhiraman,

3. Sri S. Sajeev,
    Age: 28 years,
   S/o K. Sadanandan,

4. Sri R.P. Rajesh Kumar,
    Age: 33 years,
   S/o Rajendra Prasad,

5. Sri Ashok Kumar Dixit,
    Age: 39 years,
   S/o Sri Onkar Prasad Dixit,

6. Sri Santhosh S.,
    Age: 45 years,
   S/o K. Sivaraman.
   (All are working as Senior Assistant Loco Pilots,
    Under Senior Divisional Mechanical Engineer,
    Hubli Division, Hubli.                              ...                                 Applicants

(By Advocate Shri P.A. Kulkarni)

Vs.

1. Union of India,
   to be Represented by its General Manager,
   South Western Railway, Hubli.

2. South Western Railway,
   Laxmi Balakrishna Square,
   3rd Floor, Ganesh Pet,
   Hubli – 580 020.
   by its Chief Personnel Officer,

3. The Divisional Railway Manager,
   South Western Railway,
   Hubli Division, Hubli.

4. Sri Amaesh Kumar Patta N.

5. Sri Manaskar,
6. Sri Mahesh M.
7. Sri Sudhakrishna Majhi,
8. Sri D. Raghu Rajan,
9. Sri K. Venkata Pratap K. Patta,
10.Sri Md. Sunnat Ullah,
11.Sri Yogendra Yadav,
12.Sri Ramanathan A.
13.Sri Munauwer Hasnain,
14.Sri Laxman Perumal T.
15.Sri Sanjay Singh Ahirwar,
16.Sri Gokhale Anil Kumar Udar,
17.Sri Manoj Kumar Nayak,
18.Pawan Kumar Pandey,
    S/o Sri Sharda Prasad Pandey,
   Aged about 32 years,
   Working as Assistant Loco Pilot,
   O/o Chief Crew Control,
   South Western Railway, Hubli.

   (Respondents No.4 to 17 are all working as
    Asst. Loco Pilots, Under Divisional Railway Manager,
    South Western Railway, Hubli Division,
    Hubli – 580 020.                                       ...                                 Respondents

(By Advocates S/Shri N. Amaresh, Railway Counsel for R-1 to 3,
M.R. Achar for R-4 and R-8 and Izzhar Ahmed for R-18)





O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


            When Railways recruit employees through RRB examination and subsequently send selected candidates for a training, culminating in Post Training Exam (PTE for short) as a pre-condition for regular appointment, then whether the seniority will be governed by merit in RRB list or by merit in PTE list?  That is the question here coupled with another adjunct question – How will the PTE merit list be decided?                           .   


2.         These three OAs being OA Nos. 07/2010, 169/2010 & 383/2010 filed on 27.12.2009, 16.2.2010, and 20.9.2010 respectively are taken up together. They have 5, 3 and 6 applicants respectively,  who all belong to SWR (South Western Railway, Hubli), which has three Railway Divisions, namely, Hubli, Bangalore and Mysore. All applicants are part of the same combined recruitment vide employment notification No.1/2005 for which a RRB merit panel of 782 candidates was prepared in the year ...... , for the post of ALPs (Assistant Loco Pilots).  Since, the said posting requires mandatory training, they were all appointed as Stipendiary ALPs.  They were sent for traning in batches in view of the limitation that the Training Schools cannot accommodate large number of candidates in one go.  An examination is also prescribed at the end of each training batch and marks are allotted, which, as per the existing rules, have a bearing on their seniority. 

3.         It is thus, evident that for every RRB panel, the Railways have to deal with two different merit lists.  One, obtained by the candidates at the RRB examination and the other obtained by the candidates in the PTE held at the end of the Training.  Towards this, Rule 303 (a) of IREM is very clear and directs to fix seniority as per PTE merit list.

4.         Since all the selected candidates are not sent for training in one go, but, only in batches, or sub-groups which may be separated in time by several months, it leads to some complication in preparing seniority list,  arising out of batchwise performance of the candidates.  Another complication arises owing to the fact that although the Railway authorities would do their best to send the candidates for training exactly as per their position in the RRB panel, it is not always possible to do so, as the candidates are selected from all over the country far and near, and their medical fitness certificate as document verification is also a pre-requisite for sending them for training.

5.         In the instant three cases, the learned counsel for the applicants, namely, Shri Izzhar Ahmed for OA No.07/2010, and OA No.169/2010 and Shri ........... for respondent No. in OA No.169/2009 are pleading that once all the candidates have completed their training, their seniority should be fixed strictly as per the merit in the RRB panel.  In short, they advocate that the RRB panel is the final panel.   On the other hand, Shri P.A. Kulkarni for applicants in OA No.383/2010, takes the stand that the seniority list should be prepared only after all the candidates of one RRB panel have been trained and the marks obtained by them in the PTE are arranged in order of merit.  In short, he would interpret the Railway Board Rules to the effect that the combined merit list at the end of all training batches is the effective seniority list.  The stand taken by the Railways represented by Shri N. Amaresh Railway counsel, is yet different.  Railways counsel would plead that the candidates be arranged as per their batch-wise merit. 

6.         All the learned counsels would rely on some previous cases decided by various Benches of CAT, being:-

1)            OA No.105/1998 of CAT, Bangalore Bench,  decided on 11.8.1999, as quashed by the Hon'ble High Court of Karnataka in WP No.17456/2000 and 26304 to 26310 of 2000, dated 22.11.2004;
2)            Order dated 28.2.2007 in OA 416/2005 of CAT, Bangalore Bench, not challenged.
3)            OA No.1014 and 1015/2001 of CAT Madras Bench decided on 25.11.2002 – not challenged;
4)            WP No.27216/2007 decided on 7.8.2009 of the Madras High Court arising out of OA No. 880/2003, dated 16.10.2004 of CAT, Madras Bench; and
5)            OA Nos. 874/2005 and 2/2006 of CAT, Hyderabad Bench.

7.         Before going into the details, it is necessary to note down the Rule position. 
            Para 303 of Chapter III of IREM (Indian Railway Establishment Manual) Volume – I earlier read thus:-
"303.   The seniority of candidates recruited through the Railway Recruitment Board or by any other recruiting authority should be determined as under:-

(a)       Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts.  Those who join the subsequent courses for any reason whatsoever and those who pass the examina- tion in subsequent chances, will rank junior to those who had passed the examination in subsequent chances, will rank junior to those who had passed the examination in earlier courses."

            Para 303 (a) above was amended by Advance Correction slip No.9 vide Railway Board;s letter No.E9NG)/1/89/SR6/32 (PNM) dated 19.3.1993 which reads thus:-
"Candidates who are sent for initial training to Training Schools will rank in seniority in the relevant grade in the order of merit obtained in the examination held at the end of the training period before being posted against working post.  Those who join the subsequent courses and those who pass the examination in subsequent chances will rank junior to those who had passed the examination.  In case, however, persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter-se seniority will be regulated batchwise provided persons higher up in the panel of the RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se seniority provided such persons pass the examination at the end of the training in the first attempt."


8.                  OA 07/2010 pertaining to 5 applicants of Hubli Division and OA 169/2010 pertaining to 3 applicants of Mysore Division, both rely on the judgment of Madras High Court in WP No.27216 of 2007 and OA Nos. 874/2005 and 2/2006 of CAT, Hyderabad Bench.  Thus, OA No.07/2010 prays for the following reliefs in paras 8(ii) and (iii):
(i)         To quash the revised provisional seniority list of Hubli Division as on 06.10.2009 of Hubli Division bearing No.H/P.612/IV/VRNG/ Seniority, dated 6.10.2009 as at Annexure-A/20; and

(ii)           Issue direction to the respondents to prepare seniority list strictly on the basis of the panel prepared by them vide Annexure-A/8 as per the merit obtained in RRB list as extended to Vijayawada Division employees after obtaining permission from the Railway Board, if necessary, and also re-adjust the seniority and promotions.

And the applicants in OA No.169/2010 pray for the following reliefs vide para 8 (ii) and (iii):
(i)            To quash the provisional seniority list of Mysore Division, vide Order No.Y/P.612/V/Vol.XII, dated 29.06.2009 (Annexure-A/5) and the revised final seniority list Y/P/612/Vol/XI, dated 20/28.10.2009, (Annexure-A/12).

(ii)           To issue direction to the respondents to prepare seniority list as per the merit obtained in RRB list as extended to Vijayawada employees after obtaining permission from the Railway Board.


            In OA No.383/2010, the applicants coming from Hubli Division, rely on the judgment of this Bench of the Tribunal in OA No.416/2005 and pray to quash the seniority list dated 30.7.2010, Annexure-A/1 and maintain the seniority list dated 6.10.2009, at Annexure-A/4.

Thus, the applicants of OA 07/2010 are not specifically challenging the final senoirity list dated 6.10.2009 of Hubli Division but without challenging it, they are asking to implement the RRB seniority.

9.            We find it relevant to first of all consider the judgent of this Bench in OA No.416/2005 which case was also argued by the learned counsel Shri P.A. Kulkarni, who is the counseL in OA No.383/2010 and it is pertinent to note that the two prayers made in these two O.As and the grounds taken are different.

10.         From the pleadings and judgment In OA 416/2005, we cull out that the candidates as selected by RRB panel of 2002 were trained in 3 different batches, namely, batch No.C-34, C-35 and C-36 which commenced on different dates.  As the candidates were selected from all over the country, it was not possible for the Railway authorities to issue the training orders strictly according to the merit obtained by them in the RRB panel.  On the other hand, it was also not advisable to keep the training seats vacant.  Hence, the 3 batches of training were not strictly in accordance with the merit in the RRB panel, but, there were many deviations.  As far as the examination at the end of training is concerned, the authorities in the Training School are constrained to finish these examinations batch wise and there have been no instances of gathering all the candidates taken up through one RRB panel to undergo a fresh combined examination at the end of the training of all the candidates of one RRB panel.  It is here that a proper interpretation of 2nd part of Rule 303 (a) from 1993 onwards introduced by Advance Correction slip No.9 dated 19.3.1993 become crucial.

11.       The applicants in OA No.416/2005 prayed that the seniority list for the 3 batches C-34, C-35 and C-36 should be treated as separate from each other.  Thus, all those who finished the training in batch No.C-34 would necessarily be declared as senior to those who finished their training in subsequent batches C-35 and C-36.  However, this is not equivalent to say that the seniority of the RRB panel maintained because within each examination batch, the applicants' seniority would beas per the merit position pertaining to the PTE of that training batch alone.

12.       Thus, it was not the case in OA No.416/2005 that seniority should be fixed as per the RRB panel merit list.  The question there was whether seniority list should be prepared one for each training batch and dependent on the marks obtained at PTE of that batch or whether seniority list should be prepared after all training batches are over and such a seniority would be a combined seniority for all the candidates of the RRB panel even though the dates of examination of all the candidates will be different depending on their training batch.  The Railway authorities preferred the first method being guided by Rule 303 (a) whereas the applicants claimed for the first method, placing reliance on the correction slip.

13.       While dismissing the OA 416/2005, this Bench therefore, decided that even though all the candidates selected in one RRB panel are sent for training in smaller sub-groups, the seniority list will be prepared for the entire panel based on the merit obtained in the PTE for each training batch.  This order has not been challenged. 

14.       Now, coming to the present 3 O.As, RRB panel of 782 candidates against Employment Notice No.1/2005 was prepared. the Railway authorities have prepared as on 1.5.2009.  This is at Annexure-a/1 in OA No.169/2010.  The same is also reproduced at Annexure-A/10 in OA No.7/2010.  This list pertains to the entire SWR zone, i.e., the 3 divisions of Hubli, Bangalore and Mysore

15.       The applicants in OA No. 07/2010 and 383/2010 fall under Hubli Division for whom the seniority list has been carved out of the combined seniority list and the 179 candidates of Hubli Ddivision are listed in Annexure-A/4  of OA No.383/2010 which is titled "the revised provisional seniority list of ALPs for Hubli Division as on 6.10.2009".

16.       This provisional seniority list was later on modified by the Railway authorities vide the new seniority list dated 30.7.2010 at Annexure-A/1.  This seniority list is based on batch wise training and within the batch, the seniority has been arranged strictly as per the marks obtained.  A perusal of it shows that in all 13 batches of training were held which are numbered as 1 of 2007 to 7 of 2007 and 1 of 2008 to 6 of 2008 covering in all 217 candidates.  It is also evident from the last column, viz., the training bach number that all the 23 candidates trained in the first batch are not as per the RRB merit list numbers.  Same holds true for subsequent batches also.  Thus the crucial question is whether the merit list as prepared by SWR on the basis of each separate training batch should be treated as just and proper or whether the seniority list prepared on the basis of total merit list of 782 candidates i.e, entire RRB panel should be treated as proper. 

            The ratio of OA 416/2005 appears to be in favour of the seniority list dated 6.10.2009 at Annexure-A/4 and not in favour of the seniority list dated 30.7.2010 at Annexure-A/1 which is the impugned order.

17.       Coming to the other cases cited by the learned counsel
17.I      In OA No.1014 and 1015/2001 of CAT, Madras Bench, dated ......  the applicants claimed that since no combined examination was held at the end of entire training of all the batches and that Railway authorities clubbed all the batches and arranged all the candidates in the order of marks obtained by them in the batchwise examination, and since the batches were different, there cannot be a combined merit list.  Hence, .................. (?) The CAT, Madras Bench, has only directed the Respondent Railway department to consider the representations of the applicants in the light of Rule 303(a) of IREM and pass appropriate orders.  Thus, in effect, the result of this judgment does not actively interfere with the method that was similar to the method adopted by the SWR while issuing the revised provisional seniority list dated 6.10.2009.

17.II     The Madras High Court decision in Writ Petition No.27216/2007, dated 7.8.2009, arises out of OA No.880/2003 of CAT, Madras, decided on ..........  In that OA, the grievance of the applicants was that the marks obtained by them in various tests during the training period was treated as the basis for fixing their combined seniority and there was no combined final examination at the end of the training of all the batches.  In short, the batch wise examination was not a full and proper compliance of the spirit of Rule 303 (a) and hence, in the absence of proper PTE, their seniority shoud be fixed as per the RRB panel merit.  This proposition was rejected by CAT, Madras, which upheld the preparation of a combined seniority list based on PTE.   The High Court of Madras, while setting aside this order of the Tribunal has relied mainly as under:-
"16.      ..... the candidates have not been informed  that the basis for fixing their seniority would be on the basis of the test conducted at the end of each training session and although, they have been left in lurch and suddenly the change that too in clear violation of Rule 303(a), has been pressed into service.  Therefore, the Railway Administra- tion cannot adopt a new procedure for the purpose of determining seniority as it would amount to changing the procedure for determining the seniority after the selection process is complete and taining session had begun.  Amedment of procedure midstream has been deprecated by the Hon'ble Supreme Court in the matter of selection, vide MOHD. SOHRAB KHAN Vs. ALIGARH MUSLIM UNIVERSITY (2009 4 SCC 555) and this proposition could also be very well imparted into the facts of the present case."


Since, the Railway Correction slip, as well as procedure for sending for training and PTE has been in  practice since 1993 (or before), it appears that there was some other relevant material before the High Court on which the learned counsel for applicant in OA Nos. 07/2010 and 169/2010 have not thrown any light.


17.III    Coming to the order of the Hyderabad Bench of the Tribunal in OA No.874/2005 and 02/2006, the claim of the applicants there too was that the seniority should be decided on the basis of the RRB panel merit only for the reasons that there was no combined examination at the end of entire training of all the batches.  In that, it was directed that a one time permission be obtained from the Railway Board to re-adjust the seniority and promotions as per the RRB panel.

18.       The learned counsel for respondents have filed their reply justifying the batch wise seniority.  In the reply to OA No.169/2010, they have quoted as under:
"10.      Reply to para 4.8  to 4.19:  The applicants are not disputing that in terms of Rule 303 (a) of IREM, the seniority should be prepared on the basis of results and marks obtained at the end of the training.  The averment of the applicants is that they were sent for training in different batches and their seniority ought to have been assigned acording to the outcome of the results of individual batches.  Though the candidates belonging to the same panel, it is submitted that RRB merit list is prepared on the basis of marks secured in the RRB exam.  The merit list of RRB will (be) the the criteria for assigning the seniority in the posts in which the pre-induction training is not mandatory or where two candidates getting the same marks in the exam conducted by the training centre, in case of posts in which pre-induction training is mandatory.  Moreover, the post to which the applicants have been appointed are classified as SAFETY CATEGORY POSTS which are directly involved in running of trains and the candidates cannot be placed on the job instantly without imparting training on vario0us aspects of signalling, handling of engine, train passing at stations etc which are core safety aspects and hence hands-on training is mandatory, lest, without proper training and successful completion of the training by the candidates the life of general public would be put in jeopardy.  ......"


19.         The learned counsel Shri P.A. Kulkarni while referring to Rule 303 (a) and correction slip claims that that the choice of the word 'courses' in the first part and the word 'batches' in the second part is crucial.  The wording of the 2nd part makes it clear that the word 'courses' used in the 1st part refers to all the candidates selected in one RRB panel and therefore, those who are selecteed in the next RRB panel or those who have, for some reasons, passed the examination in subsequent chances will rank junior to the candidates in the earlier panel.  According to hi, the 2nd part, however, talks about different batches arising out of the same RRB panel.  It mandates that the candidates will be sent in batches for training strictly as per their RRB merit and at the end of the training, they will undergo examination and the marks obtained therein would result in rearrangement of of their inter-se seniority within that batch. Further, this also has a proviso that when any candidate higher up in the RRB panel has not been sent to an earlier training batch due to administrative exigencies, then, his marks at the end of the training will be compared with the marks obtained by the candidates of those of that batch to which he would have been assigned for training as per the RRB panel.  This was the crux of his argument in OA No.416/2005 which was opposed by the Railway authorities in that OA.  There, the Railway authorities argued that since it is not possible to hold one more examination at the end of all the training batches, therefore, the Railway authorities were right in conducting batchwise examinations and obtaining their mark lists and re-arranging all the marks of all the empanelled candidates in one go to decide their inter-se seniority.  This view of the Railways was upheld in OA No.416/2005.


20.         In the reply to OA 416/2005, the Railways have clarified as to how they have prepared the seniority list and the norms observed:
 (1)       All the candidates belonging to the same RRB panel will form one seniority list;

(2)          One RRB Panel may have to be bifurcated into smaller training groups due to administrative reasons;

(3)          Candidates recruited against one RRB Panel sent for initial training in diffeent batches due to administrative reasons are clubbed together for the purpose of regulating inter-se seniority, based on the marks obtained by them in the final examination.

On this ground, the Railway authorities objected to the contention of the applicants that the seniority be prepared based on the date of entry into the grade (same as the date of sending them on training) and not on the marks obtained.  It thus, appears from OA 416/2005 that the prayer therein was to hold the latter part of the instructions contained in RBE:47/1993 dated 19.3.1993 as repugnant and quash it.  This would mean that the aplicants securing higher merit rank in the RRB Penel, if not sent for the training at an earlier date strictly in accordance with their merit in theRRB Panel, then, they would lose in seniority to those who could join the training batches earlier.  In short, the prayer would mean that the examination at the end of the training would have no effect once a person was sent for training. It has been held that there is  no inconsistency between the first and the second part of the said RBE:47/1993, dated 19.3.1993.  The decision quites that it was specifically made clear in the order for sending them for training, that their seniority will be governed by the extant Rules and that due to administrative inconvenience, the candidates are directed for training without following the RRB merit order and further that their seniority would be decided on completion of training by all the candidates.  That being so, the method followed by the Railway authorities in preparing a combined list out of the training batches of C-34, C-35 and C-36 and arranging all the candidates in order of merit obtained at the end of their respective batchwise training was held as correct.  In their reply statement too, the Railway authorities have claimed that since there are large number of deviations in strictly following the merit order of the RRB Panel while sending the candidates for training, they have considered one RRB Panel as one batch and decided a combined merit list which would also be the seniority list.  This stand has also been upheld by the Tribunal.

21.         In Writ Petition No.27216 of 2007, the Madras High Cout has held and we qjuote:           (?)

22.         With due respect to this judgment, we find it proper to note that the Rules by way of Correction Slip has been in existince as early as in 1993.  Thereafter, for several RRB panels and seniority lists, the Railways have been required to contest several litigations.  But, the Railways don't seem to have come out clearly what Rule or procedure they have followed consistently from 1993 in deciding the seniority.  What is clear is that the seniority has never been decided as per the RRB panel.  It is also clear that owing to administrative exigencies, the deviation from the RRB panel for sending candidates to training have been far too many.  So much so, that if the seniority is to be decided for each training sub-group strictly as per the correction slip, then the complications would be too many.  The stand taken in OA No.416/2005 for the RRB panel of 2002 of the SWR and so also the stand taken while issuing the revised provisional seniority list dated ............. for the RRB panel of 2005 of the SWR makes it clear that they prepared a combined seniority list for the entire RRB panel irrespective of the training sub=groups.  It would be much desirable if the Railway narrated what stand they had taken consistently from 1993 onwards for all the Railway Zones.

23.         The Madras High Court judgment judgment also notes that the examination held at the end of each training sub-group is not "the examination" as mentioned in Rule 303 (a) or the correction slip.  They have agreed with the contention of the applicants that since there was no combined examination for the entire RRB panel at the end of all training sub-groups, therefore, the condition prescribed in Rule 303 (a) is not fulfilled and therefore, the seniority must be decided as per the RRB merit list.

24.       With due respect to this, we note the difficulties in holding a combined examination for the entire RRB panel.  There would be two problems.  Firstly, the infrastructure of the Training Schools may not be adequate for inviting all the RRB panelists for a combined examination.  The administrative difficulties of holding such a combined examination are very many.  The second problem would be much more genuine.  Since, the training batches are separated by a span of nearly 1 ½ to 2 years, those who finished their training in different earlier batches would be at a distinct disadvantage compared to those who would finish their training towards the end.  It, therefore, holds to reason and fair administrative practice that the end of training examination of the candidates must be completed as early as possible after the training is over.  We also note that when the candidates of one RRB panel cannot, due to administrative reasons be sent to training strictly as per the merit of the panel and when the deviations are too many, then, it is much more convenient and also administratively fair to prepare a combined list for the entire panel.

25.         In view of the above discussion, we see no merit in granting the prayer in OA No.07/2010 and 169/2010 where the applicants have prayed for seniority strictly as per the RRB panel.  We would like to mention that the job of ALP as of highly critical nature directly affecting the safety of trains and the training has a critical role.  If the candidates are given seniority simply on the basis of RRB panel, then, the required seriousness of attending to the training and excelling at the training would be defeated.  It is for this reason, that the Railway authorities, from the very beginning of the history of Railways, have considered the training and passing of the PTE as a pre-requisite for giving appointment to ALPs.  It is for this reason, that prior to completion of training, they are designated as "Stipendiary ALPs".  It is also for this reason that in OA No. ......... resulting Vijayawada decision, the method of RRB merit was adopted as a one time measure only and it cannot be taken as a precendence.

26.       For the above stated reasons, OA Nos.07/2010 and 169/2010 are dismissed.

27.       As far as OA No.383/2010 is concerned, we find that the Railway authorities, while issuing the revised provisional seniority list dated 6.10.2009 (Annexure-A/4), have followed the same principle of one combined merit list for all the training sub-groups as they had followed for the RRB panel of 2002 and contended its correctness in OA No.416/2005.  While changing their stand for preparing a training sub-groupwise seniority as at Annexure..........., they have not clarified the reason for doing so.  They are not coming forward with the information as to what the number of anomolies in sending the candidates for training as per RRB panel.  Had they been able to strictly follow the RRB panel with mininal exceptions, there might have been some justification in adopting this new principle while issuing the final seniority list dated 30.07.2010, (Annexure-A/1).  The reply statement submitted by the Railways in all the 3 O.As is  pointer that anomolies were very many.  This is also borne out by scrutiny of Annexure-A/1 which is the impugned order. 

28.       The perusal of batch 1/07 shows that those 23 candidates have been arranged in seniority strictly as per their marks which have ranged from 85.3% in a descending order upto 64.% .  However, their RRB merit ranges as wide as from 47 (Sl. No.5) to 201 (Sl.No.11).  Similarly, we examined batch No.3/07 and find that the candidates have been given seniority from 37 to 55 (19 candidates) and their marks range from 90% to 75%.  But, their RRB batch No. Ranges  from 227 (Sl. No.52) to 263 (Sl. No.55).  This clarifies beyond doubt that there were too many anomolies om sending the candidates for training. 

29.         In view of this, we have no hesitation in allowing the OA No.363/2008 and quash Annexure-A/1 dated 30.7.2010, In effect, Annexure-A/4, dated 6.10.2009, will survive.  No order as to costs.


                        (V. AJAY KUMAR)                                (LEENA MEHENDALE)
                             MEMBER (J)                                            MEMBER (A)


psp.
**{Candidates who are sent for initial training to Training Schools will rank in seniority in the relevant grade in the order of merit obtained in the examination held at the end of the training period before being posted against working post. Those who join the subsequent courses and those who pass the examination in subsequent chances will rank junior to those who had passed the examination. In case, however, persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter-se seniority will be regulated batch wise provided persons higher up in the panel of the RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se seniority provided such persons pass the examination at the end of the training in the first attempt.}
[Authority: Railway Board's letter No. E(NG)I/89/SR6/32(PNM) dated 19.03.1993 (RBE 47/1993)]
** Substituted vide Advance Correction Slip No. 9 circulated vide Railway Board's letter No. E(NG)I/89/SR6/32(PNM) dated 19.03.1993 (RBE 47/1993).

It is clarified at the outset by the learned counsel Shri P.A. Kulkarni that the date of sending them for training was strictly as per the merit list prepared by the RRB.  Similarly, all of them have passed the examination at the end of training in the first attempt.  Hence, two complications that could have been created, namely, (a) by some candidates lower in the merit list of the RRB being sent for an earlier training programme, thus, allowing to finish the training earlier;  (b) a candidate having failed in the first attempt and given a second chance along with some other training group that has attended the training at a later date.  Thus, only one complication remains to be resolved by way of these O.As.   This deals with the issue of what to do when a candidate who finishes his training earlier has acquied much lower marks in the examination at the end of the training than another candidate who has acquired very high marks, but, has attended and completed the training on a later date. 
           
            For the sake of convenience, we will deal with the matrix of OA No.383/2010.  The applicants belong to the cadre of Assistant Locl Pilots in Hubli Division.  They have come through RRB interviews held against the Employment Notification No.1/2005.  The RRB had selected 179 candidates who were designated as Stipendiary Assistant Loco Pilots till the completion of their training and they were trained in 13 sub-groups.  Their seniority list was published on 1.5.2009.  However, on completion of training of all the sub-groups, a revised provisional seniority list of all the 179 candidates as on 6.10.2009 was published on the same date (Annexure-A/4).  We find that 6 applicants are Sl.No.7, Sl.No.1, Sl.No.8, Sl.No.64, Sl.No.73 and Sl.No.58 respectively.  It shows that all the 179 candidates have been arranged strictly as per the marks obtained by them at the end of the training.   The column showing the date of examination shows that the earliest date of examination was 11.3.2007 and thereafter different dates of examinations for subsequent batches some examinations going as late as 25.1.2009.  Each examination has nearly 15-20 candidates. 

            Coming back to OA 07/2010 (5 applicants), filed on 26.12.2009,we find at Annexure-A/1, a list for 782 candidates issued on 4.2.2009, where these candidates are arranged as per their RRB panel marks for the batch arising out of Employment Notice No.1/2005 for ALPs for Hubli zone, examination being conducted for recruitment in 3 Divisions, namely, Hubli, Bangalore and Mysore.  In that 782 candidates were selected (Annexure-A/5), dated 31.10.2006.  The Chief Personnel Officer of SWR, on 10.7.2006, prepared a panel of 111 members as at Annexure-A/2.  The minimum period of training is 21 weeks for the purpose of gaining eligibility to the post of ALP, which for the particular exigency arising with the extant batch was reduced to 17 weeks for class-room training and remaining 4 weeks training was on-line.  The first list of 111 candidates was sent to training in two sub-groups.  Thereafter, 5 more sub-groups consisting of 166 candidates was issued on 31.10.2006.

            The applicants claim that IREM Vol.I Advance Correction slip No.9 as at Annexure-A/19 states the rule for seniority.  (We find that Annexure-A/19 is not the said Rule).  The applicants' claim that the marks secured by them in the RRB examination allow them a higher position in the RRB merit list, while the marks obtained in the post training examination, they are pushed to a lower  rank.  Further, since some candidates who get trained at a later date may secure higher marks.  The applicants object to their peing placed at a higher seniority and insist that the seniority should be kept solely on the basis of marks obtained in the RRB examination. 

            The SWR administration prepared the seniority list as on 1.5.2009 as at Annexure-A/10.  This is a list of 190 candidates which include some departmentally promoted candidates also and is more or less the same as 179 candidates of OA 383/2010.  Aggrieved by this seniority list of 1-5.2009, the 5 applicants herein have given their representations on different dates.  These are seen at Annexures-A/11 to A/17.  All these representations refer to the judgment of CAT, Bangalore Bench in OA No.874/2005 and 2/2006, (no mention of the adjunct bench which passed the order) wherein the CAT has directed the Railway Board to prepare the seniority list after considering the representations of the employees and finalising according to Rules.  The representations also mention that in Vijayawada zone, the Railway Board has directed as a one time exemption for Vijayawada Division only that the seniority should be based on merit position in the RRB.

            Coming to OA No.169/10, the 3 applicants are working in the Mysore Division and are challenging the 4 orders No.Y/P.612/V/Vol.XII, dated 19.08.2009,  (Annexure-A/7), Y/P/612/v/vOL.XII, dated 13.10.2009 (Annexure-A/11), No.Y/P.612/V/Vol.XII, dated 29.6.2009 (Annexure-A/5) and Y/P.612/V/Vol.XII, dated 20/28.10.2009 (Annexure-A/2) passed by the Sr. DPO, Mysore Division. The Sr. DPO, Mysore, published the seniority list of candidates eligible to be promoted as Sr. ALP provisionally vide Order No. Y/P/612/V/Vol.XII dated 29.6.2009, (Annexure-A/5) in which the 3 applicants herein were assigned a seniority which is different from the seniority given to them by RRB in Annexure-A/1.  Hence, they gave a representation as at Annexure-A/6).

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