Rajneesh Kumar and Others vs Om Prakash Choudhary and Others

Govind Mathur, J.—By judgment dated 22.11.2013 learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur while accepting Original Application No. 226/2012, set aside a notification dated 12.7.2011 initiating process of selection for recruitment to the post of Junior Engineer (Mechanical) against the vacancies pertaining to intermediate apprentice quota. Learned Tribunal while accepting the original application directed the Chief Workshop Manager, North Western Railway, Carriage Workshop, Jodhpur and Senior Personnel Officer, North Western Railway, Carriage Workshop, Jodhpur to avail instructions from Railway Board with regard to the mode for assessment of service record and paper screening based on a fair criteria. To question correctness, validity and propriety of the judgment referred above these petitions for writ are preferred.

The factual matrix necessary to be noticed for adjudication of these petitions for writ is that while making recruitment to the post of Junior Engineer (Mechanical) 25% of the total vacancies is required to be filled in from amongst the intermediate apprentices. The feeding channel for the post aforesaid is from several posts including the posts in Group ''D'' cadre of railway servants. The process of selection for recruitment in question consists of two steps, those are written test and assessment of the Annual Confidential Reports (hereinafter referred to as ''the ACRs'') or special work report, as the case may be. The ACRs or the special work reports of preceding three years from the date of selection are required to be taken into consideration for making their assessment. The assessment of the ACRs and special work reports pertain to 30 maximum marks and that is required to be made on basis of the remarks assigned to the railway servants by the reporting officer. The allocation of marks as per the remarks given is as under:--

"Below average : 2 marks

Average : 4 marks

Good : 6 marks

Very Good : 8 marks

Outstanding : 10 marks"

According to the rules existing, a confidential report shall be written by reporting officer for every railway servant working under him but not for railway servants of Group ''D'' service while making recruitment against the vacancies pertaining to the intermediate quota, the recruiting authority use to call upon special work report of every participating employee from the authority under whose supervision he is working. The assessment of work report is also required to be made on basis of the same marking criteria as applicable for assessment of the ACRs.

By a notification dated 12.7.2011 the Senior Personal officer, North Western Railway, Carriage Workshop, Jodhpur initiated a process of selection for recruitment to the post of Junior Engineer (Mechanical) against ten vacancies pertaining to the intermediate apprentice quota. Several employees with regard to whom ACRs were maintained and with regard to whom special work reports were availed, faced process of selection and on qualifying written test their ACRs or special work reports, as the case may be, were assessed. A panel of selected incumbents was declared on 9.3.2012. The persons who qualified written test but not placed in the panel of selected incumbents questioned correctness of the process of selection by way of filing original applications before the Central Administrative Tribunal, Jodhpur. Suffice to mention that the original applicants are the persons whose ACRs were assessed and the applicant private respondents are the persons whose work reports were taken into consideration.

The submission of the original applicants before the Central Administrative Tribunal was that the persons whose special work reports were considered are junior than the persons whose ACRs were taken into consideration, but due to assessment of work reports after written test the junior persons secured more marks and they have been placed in the panel of selected incumbents. The special work reports for three years were prepared and obtained after written test and, therefore, most of the persons had outstanding or very good remarks, whereas the ACRs were filled in year by year on basis of objective assessment of service. Pertinent to mention here that the same issue was also considered by the Chandigarh Bench of the Central Administrative Tribunal in Original Application No. 1346-PB-2011 and that was accepted. The Union of India assailed validity of the judgment given by the Chandigarh Bench of the Central Administrative Tribunal by way of filing a petition for writ before Hon''ble the Punjab and Haryana High Court at Chandigarh. The High Court after considering merits of the case (Union of India and Ors. v. Rabhubir Singh and Ors., CWP No. 20612 of 2013, decided on 18.9.2013) dismissed the writ petition by observing and holding as under:--

"10. We are not impressed with the submission made by learned counsel for the petitioners. It is a case where the employees not only senior in the rank but also having more experience have been ignored by adopting a strange procedure which is not only discriminatory but is also alien to the service jurisprudence. Such a procedure adopted by the petitioners, if allowed will cause heartburn amongst the senior employees and at the same time facilitate the authorities to adopt pick and choose policy in utter disregard to the concept of equality enshrined in Articles 14 and 16 of the Constitution. The employees, who are competing for a promotional post should be tested on an uniform pattern without any undue advantage of fortuitous circumstances. The petitioners cannot justify their action of assessing one employee on the basis of his previous ACRs and other by calling a ''special report'' with regard to his current work and conduct. An employee who had worked very hard during the last three years may have been assessed differently by the assessing officers, while the officer who is writing the special report may not be in a position to assess the working of junior employees for the last three years. His simply describing his work as "good" or "outstanding" may jeopardize the service career of seniors. It appears that the Railways, which is very big organization, instead of improving upon its lapse and lacuna is trying to defend its indiscriminate act and policy which has resulted into unfair and arbitrary consequences.

The Tribunal has then rightly given liberty to the petitioners to seek instructions of the Railway Board for assessment of the service record based on criteria which is non discriminatory, fair and wholesome and to reassess the service record of the five selected candidates.

The argument of learned counsel for petitioners that respondent Nos. 1 and 2 have participated in the selection process fully knowing the criteria for selection, carries no weight as there is nothing on record to suggest that respondent Nos. 1 and 2 were apprised about their evaluation vis-�-vis respondent Nos. 3 and 4 on the basis of service record. Mere fact that respondent Nos. 1 and 2 may have been allowed the similar evaluation as given to respondent Nos. 3 and 4 for their promotion to the post of Technician Grade II is not a relevant fact. The present dispute relates to promotion to the post of Electric Fitter Grade JE-II for which the technician Grade I, Technician Grade-II and even Technician Grade III were made eligible and by adopting the procedure of taking work assessment report much junior persons were promoted by ignoring the number of years of service and seniority of respondent Nos. 1 and 2. We find no legal or factual infirmity in the order dated 10.04.2013 (P-1) passed by the CAT."

Before us too the arguments advanced by learned counsel for the petitioners are same which were examined by Hon''ble Punjab and Haryana High Court. As already stated, the process of recruitment in question pertains to the recruitment on the post of Junior Engineer (Mechanical) against the vacancies relating to intermediate apprentice quota. The feeding channel for that is from non-gazetted staff including the staff of Group ''D'' service. The railways is maintaining ACRs as per para 1619 of the Indian Railway Establishment Code for all non-gazetted railway servants except the railway servants who are members of Group ''D'' service. While considering candidature of Group ''D'' service for the purpose of appointment against the vacancies relating to intermediate apprentice quota, the recruiting authority is calling special work reports from the authority under whom the employees concerned is working. The special work reports are not maintained year wise but are prepared after declaration of the result of written test and on calling upon the same by recruiting authority. At this stage the authority who is supervising services of the members of Group ''D" service can very well grant higher quality remarks to a railway servant making him entitled to have better marks in the assessment of the work reports. On the other hand the persons whose ACRs were maintained year by year cannot have such benefit. The reporting authority had no knowledge about their performance test while assessing their service performance. The remarks assigned to this set of employees is founded on objective assessment of performance without having any effect or impression about their further recruitment on a higher post. Looking to the eventuality discussed above, a person who is otherwise senior may suffer a loss because of irrational mode of assessment of work reports.

By considering the same we are in absolute agreement by the conclusion arrived by Hon''ble the Punjab and Haryana High Court to the effect that the procedure adopted is not only discriminatory, but is alien to service jurisprudence and that will cause heartburn amongst the senior employees and at the same time facilitate the authorities to adopt pick and choose policy in utter disregard to the concept of equality enshrined in Articles 14 and 16 of the Constitution of India. The employees who are competing for a promotional post should be tested on an uniform pattern without any undue advantage of fortuitous circumstances and in the instant matter the calling of special work reports extends an undue advantage to the members of Group ''D'' service that being based on current work and conduct. In our consideration opinion learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur after examining merits of the case rightly followed the law laid down by Hon''ble Punjab and Haryana High Court.

The petitions for writ, thus, demands no interference, hence are dismissed.