Saturday, November 3, 2012

OA no 87 / 2010 & 357 / 2010 on ??? -2012


TRANSFERRED  APPLICATION Nos.87/2010 & 357/2010

DATED THIS THE     TH  DAY OF .............. ,  2012

HON'BLE Dr. K.B. SURESH          ...         MEMBER(J)


1. R. Nanjunda,
   S/o Sajappa,
   Aged 41 years,
   Pointsman 'A'/Kodaganur,
   Door No.113/B, Railway Colony,
   Harihar, Karnataka.

2. N.P. Obaiah,
   S/o Palaiah,
   Aged about 45 years,
   Pointsman 'A'/Challakere,
   No.8C, Challakere RS &Post,
   Challakere, Taluk, Chitradurga District,
   (Applicants 1 & 2 are applicants in OA No.87/2010).

3. K. Kumar,
   S/o T.D. Shivaswamy,
   Aged 48 years,
   Pointsman 'A'/Yadavagiri,
   Door No.101/vrc, Railway Quarters,
   Yadavagiri, Mysore, Karnataka.

4. S. Lingaraju,
   S/o Late Siddaiah,
   Aged 50 years,
   Sweeper cum Porter 'A'/Nanjangude,
   No.C93, N G O Colony, (Hawala Purada Huudi),
   Nanjangude Town, Mysore, Karnataka.

5.K. Sadiq,
   S/o Abdul Kareem Sab,
   Aged 48 years,
   Pointsman 'A'/Harihar,
   Door No.14714, I Cross,
   K. Salagandhi Nagar, Harihar, Karnataka.

6. K.G. Balaraja,
   S/o K. Giddanna Gowda,
   Aged 44 years,
   Pointsman 'A'/Bhadravati,
   DWC 217 A, Huthy Colony,
   Bhadravati, Karnataka.                           
   (Applicants No.4 to 6 are applicants in OA No.387/2010)..      Applicants

(By Advocate M/s. Ratio Legis)


1. Union of India,
   Rep. By the General Manager,
   South Western Railway,

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

3. The senior Divisional Personnel Officer,
   Mysore Division,
   South Western Railway,
   Mysore.                                           ...                                 Respondents

(By Advocate Shri N. Amaresh on behalf of
Shri M. Ramesh, Counsel for Railways)


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

            These O.As arefiled on 18.2.2010 under Section 19 of the Administrative Tribunals Act, 1985, with a prayer to empanel the two appicants for the post of Goods Guard in the scale of Rs.5200-20200 against 60% promotion quota, which has not been done as seen from Annexure-A/9 dated 21.10.2009 which is a panel prepared by including 4 other employees who have passed the written examination held on 25.8.2009, but excludes the names of the present 2 applicants.  The crux of the case is a trade off between safety in Railways Vs. 2 stage lowering of benchmark qualification to acommodate reserve categories.

2.         Briefly, the applicants rely on para 180 of IREM (Indian Railway Establishment Manual) which states thus:
"... all railway servants belonging to the Transportation (Traffic) and Commercial Departments in the lowest grade should be eligible for consideration for promotion to higher grade in both the Transportation and Commercial branches.  Applications should be invited from amongst categories eligible for promotion from both the branches.  All Railway servants who apply will be considered.  An adhoc seniority list will be prepared on the basis of length of continuous service in the grade and suitable men selected and placed on a panel for training.  Systematic and adequate training and examinations or tests must precede actual promotions."

3.            Under para 124 (1) of the IREM, vacancies inthe category of Goods Guard are to be filled by 3 methods, namely,

(a) Direct Recruitment through open market;
(b) General seniority from the regular employees;
(c) by promotion from amongst serving junior employees through a process of selection. 

The ration for these 3 categories have been changed by the Railway Board from time to time depending on their requirements.

4.         In the year 2007, the Railways conducted selection for filling up 7 vacancies in the cadre of Goods Guard out of which3 were for SC and 1 was for ST and the remaining 3 were for general category.  It is the claim of the applicants that 43 employees including the applicants had qualified in the written examination as per letter No. Y/P.608/I/G.gds/Vol.VI, dated 8.1.2008 (Annexure-A/5), but, no empanelment was made.  Thereafter, on 12.2.2008, a fresh selection was called for filling up 21 vacancies vide Annexure-A/6.  This selection was cancelled vide letter dated 12.12.2008 (Annexure-A/7).  Thereafter, once again a fresh selection was called for by order No. Y/P.608/I/G.gds/Vol.IX, dated 20.2.2009 (Annexure-A/8) for 22 vacancies in which there was one vacancy reserved each SC and ST and out of the 93 aspirants who took the examination, only 4 were declared to have qualified by the impugned order at Annexure-A/9, dated 21.10.2009. 

5.            The applicants' main claim lies on 3 grounds.  First being that the Railways have failed to apply the correct rule for reservation.  Secondly, the applicants  claim that Railways have neglected para 180 of IREM by not providing systematic and adequate training to be given to aspiring candidates before the examination and selection.  The applicants also claim that the respondents compelled them to partake in the selection proceedings immediately following strenuous night duties without proper rest.

6.            As per first claim, applicants belong to reserved communities and have qualified in almost all the written examinations and also have enough seniority and hence, they must find a place in the final panel.  Even if they have fallen short of the qualifying marks prescribed in the written examination, the marks obtained by them should be upgraded in order to allow them to fill up the vacancies of reserved categories.

7.                  The respondents have opposed the OA.  They have first and foremost submitted that the applicants at this stage cannot agitate the matter regarding previous Examinations in which they had not qualified and the prayer too remains confined to the order of 2009 only.. 

8.         As far as not giving due training or not giving adequate rest before actually partaking the Examination, the Respondents submitted that this point should have been raised at the time of taking the Examination which was not done.  But the real important question is whether there should be a relaxation in the bench-mark qualification allowed for the reservation posts and to what extent?  This question is important because the post of Goods Guard is very crucial in view of safety of the Railway track to both passengers and the goods. At this stage the question of properly calculating the reserved vacancies is not materially important, if the applicants claim is denied under ground of non-qualification in the Examinations and not on the ground of non-availability of the vacancies.  The post of Points Man and Cabin Man belong to safety category  and so also the post of Goods Guard.  The present applicants who belong to SC/ST Category complain about their lack of training and this plea is only an afterthought.  On the question of rest, the Respondents point out that the 1st applicant was on leave from 20.8.2009 to 24.8.2009 and the written Examination was held on 25.8.2009 (Annexure-R/1).  The 2nd applicant was also relieved on 24.8.2009. 

9.         It is also submitted by the Respondents that already some concession has been granted for the qualifying bench-mark to the SC/ST candidates.  Circular 31 Part-IV reads as under -

     “However, in the case of SC/ST employees 50% marks in professional ability and 50% in aggregate (excluding marks for seniority) for non-safety categories and 60% marks in professional ability and 60% marks in aggregate (excluding marks for seniority) for safety categories would be required for enabling them to be empaneled.”

Thus, this bench-mark is already lower then the bench-mark qualification required for the open candidates.  The present applicants have not obtained even this qualifying bench-mark and hence, they cannot claim to be empaneled.

10.       The applicants in their rejoinder have quoted RBE No. 57/95 which states that if during selection proceedings, the requisite number of SC/ST employees are not available for being placed on the panel in spite of various relaxations and concessions already granted to them, the best among the failed SC/ST employees who secure a minimum of 20% marks separately under each heading i.e. in the written test, viva-voce, record of service, etc. and also in the aggregate , should be earmarked for being placed on the panel to the extent the vacancies have been reserved in their favour.   However, we find that this RBE is for the non-safety category and the applicants who are desirous of promotion in the safety category cannot claim any benefit under it.

11.       We have heard both the learned counsel and perused all the records.  We find no merit in the case. 
12.       Before parting, however, we would like to direct the Respondent-Railways that in view of their RBE No. 71/91 dated 11.4.1991, they themselves have understood and appreciated the need for more training  and hence, they should draw a proper training program for all categories and these training programs should be updated and every six months, and should be displayed on their website and the link for this should appear on the home page of their website. 

13.         Hence, the O.A. is dismissed.  No order ad to costs.

                 (LEENA MEHENDALE)                         (K.B. SURESH)
                            MEMBER (A)                                              MEMBER (J)


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