Shri Sanjay Garg @APPELLANT@Hash Union of India

Sanctioned Cadre,05,,,

Working,05,,,

Vacancy,Nil,,,

Linked vacancy in Higher

Grade",07,,,

Linked vacancy of W/c

Post in Higher Grade",01,,,

Total Vacancy,08,,,

S.No.,"Name &

Father's Name",Cast,Desig.,"Present

work

lace

1.,"Umesh Mishra

S/o Late Laxmi

Narayan",Other,TCM/MCF,Ajmer

2.,Vijay Kumar,Other,TCM/MCF,Abu Road

,Satpute,,,

3.,"Sunil Kumar

Sharma",Other,TCM Gr. I,Aii

4.,"Vinod Kumar

Agrawal",Other,WTM Gr. I,Railnet-Aii

5.,"Shabbir Ahmed

Kallukhan",Other,WTM Gr. I,Aii-(M)

6.,"Umrao Singh

Dindayal",SC,TCM Gr. I,"GLO Exch.

Aii

7.,"Sudhir Kumar

Sharma (P)",Other,TCM Gr. I,"GLO Exch.

Aii

8.,"Mohammed

Shafi Khan",Other,TCM Gr. I,MJ

9.,"Kanhaiya Lal

Meena",ST,WTM Gr. I,"Comm.

Deptt. HQ-

Jaipur

working on

Deputation

10.,Sanjay Garg,Other,TCM Gr. I,Aii

11.,"Kamlesh

Kumar

Khorwal",SC,TCM Gr. I,Railnet-Aii

13.,"Niranjan Lal

Verma",SC,TCM Gr. I,Aii

14.,"Sunil Dutt

Ranga S/o Shri

Vishnu Dutt

Ranga",Other,TCM Gr. I,"AEN (on

work charge

post)

15.,"Rajesh Meena

S/o Sh.

Ghanshyam

Lal Meena",ST,TCM Gr. I,Aii

16.,"Himanshu

Sharma S/o Sh.

Brijesh Sharma",Other,TCM Gr. I,Aii

17.,Deepak Jain,Other,TCM Gr. I,Aii

18.,Dayaram Saini,Other,TCM Gr. I,ABR

19.,Manish Joshi,Other,TCM Gr. I,UDZ

20.,"Vishnu Kumar

Soni",Other,TCM Gr. II,Aii

21.,Aashish Verma,Other,TCM Gr. II,Aii

22.,"Raj Narayan

Tailor",Other,TCM Gr. II,UDZ

23.,"Mahesh Kumar

Charan",Other,TCM Gr. II,ABR

24.,"Smt. Versha

Rani",Other,TCM Gr. II,ABR

25.,"Satya Narayan

Meena",ST,TCM Gr. II,ABR

relief in terms of placement of names on panel in the order of merit based on the marks obtained in such General Selections. The provision of,,,,

placement of names on final panel in the order of seniority, as indicated above, has been struck down by High Court/Punjab & Haryana, in Writ",,,,

Petition No.4746/2002 vide judgment dt. 9.4.2008. High Court, have inter-alia, held that, since in such General Selections, candidates are not from the",,,,

same seniority units and there is no common seniority list on the basis of which their names can be placed in the order of seniority, therefore,",,,,

promotion to such posts should be made only on the basis of merit, uninfluenced by seniority of the candidates. The Hon’ble High Court have",,,,

accordingly declared the provision of arranging the names on final panel in the order of seniority in General Selections as wholly illegal and arbitrary,,,,

and set aside the same. The Special Leave Petition No.16774/2008 filed before the Hon’ble Supreme Court against the High Court’s above-,,,,

mentioned judgment, has also been dismissed on 5.1.2009.â€​",,,,

4.4 He also contended in view of clause 3.2 & 4 of the aforesaid order which reads as under:-,,,,

3.2 These instructions shall be applicable with immediate effect, i.e. from the date of issue of these orders, to all panels for promotion to General",,,,

Posts. Any previous selection panel drawn up otherwise, before issue of this letter, need not be reopened.",,,,

Accordingly, the Indian Railway Establishment Manual, Volume I , 1989 is also amended, as per ACS No.209 enclosed.",,,,

4.5 He contended that the view taken by the tribunal is required to be reversed.,,,,

4.6 He further contended that same tribunal consisting of the same members in OA No.71/2009 decided on 9.8.2011 has taken a contrary view,,,,

holding as under:-,,,,

“6. Following the clarification and the RBE No.232/86, the panel has been prepared on the basis of seniority from amongst the staff who qualify in",,,,

the written test. In view of the aforesaid circular and in view of the facts and circumstances of this case, we find no illegality in the panel prepared by",,,,

the respondents on 3.1.2006 as well as in the order dt. 16.1.2008 by which representation of the applicants have been decided pursuant to the direction,,,,

issued by this Tribunal vide order dt. 4.9.2006 and, therefore, no interference is called for.â€​",,,,

4.7 He further contended that tribunal has taken a contradictory view in OA No.570/2209 decided on 8.9.2011 which reads as under:-,,,,

Learned counsel for the respondents further argued that the applicants have since participated in the process of selection, they cannot now",,,,

challenge the same as the principle of estoppel applies in this case and he referred to the judgment of the Hon'ble Supreme Court in the case of,,,,

K.G.Siraj vs. High Court of Kerala & Others, 2006(6) SCC 395. In which Hon'ble Supreme Court has held that candidates who participated in",,,,

interview with the knowledge that for selection they have to secure minimum pass marks, held, on being unsuccessful in interview could not turn round",,,,

and challenge that the said provision of minimum marks was improper, held that such challenge liable to be dismissed on the ground of estoppel.",,,,

Learned counsel for the respondents argued that the ratio is squarely applicable in this case as the applicants had participated in the written test ad,,,,

they have also been assessed for their service record. They knew that as per the circular, the panel will be prepared on the basis of seniority. Now",,,,

they cannot challenge that criterion. They have participated in the selection process and after being declared unsuccessful, they cannot challenge the",,,,

criteria of selection.,,,,

Learned counsel for the applicant referred to a decision of this Bench of the Tribunal in OA No. 57/2006 and 58/2006 decided on 24.08.2007,,,,

wherein the Hon'ble Tribunal held that since the Cricular No. E/E/1025/9 Part-I dated 08.04.2005 has clearly mentioned that the selection will be only,,,,

on the basis of written examination and, therefore, the final panel should have been prepared on the basis of written examination only. This",,,,

judgment/order of the Hon'ble Tribunal has been upheld by the Hon'ble High Court in DB Civil Writ Petition No.980/2009. Therefore, on the basis of",,,,

ratio laid down by the Hon'ble Tribunal as affirmed by the Hon'ble High Court, the name of the applicants be included in the final panel dated",,,,

13.01.2009 (Annexure A/1),",,,,

We have carefully gone through the order of this Tribunal as well as order of the Hon'ble High Court affirming the judgment of the Tribunal. After,,,,

careful perusal, we are of the opinion that the facts of OA nos. 57/2006 and 58/2006 are quite different than the present OA and, therefore, the ratio",,,,

laid down in these cases will not be applicable in this particular case. In OA No. 58/2006, there was a specific circular which mentioned that the",,,,

selection will be only on the basis of written test whereas in the present selection, the applicants have failed to put on record any document which",,,,

suggest that selection would he based only on written examination. On the contrary, the respondents have stated that the selection will be on the basis",,,,

of written examination as well as on the basis of service record and finally the panel will be made on the basis of seniority as per Circular No.,,,,

E(NG)I-98/PMI/II dated 16.11.1998 (Annexure R/2).,,,,

The action of the respondents is according to the prevalent at the time of preparing of the panel. Accordingly, the present OA has not merit and,",,,,

therefore, the same is dismissed with no order as to costs.",,,,

4.8 Counsel for the petitioner has relied upon the decision of Delhi High Court in Prem Singh & ors. vs. UOI & ors. in W.P.(C) No.8512/2011 and,,,,

other connected matters, decided on 9.7.2013 wherein it has been held as under:-",,,,

A selection made and completed on December 22, 2008 was questioned by Prem Singh and others somewhere around mid 2011 when OA",,,,

No.1727/2011 was filed by them; a claim which was clearlydf barred by limitation. Ram Rajiv and others may have filed OA No.3092/2009 within,,,,

limitation but they did not implead necessary parties within the period of limitation. The necessary parties were impleaded pursuant to the order dated,,,,

September 05, 2011 when W.P.(C) No.6496/2011 was allowed and thus qua the selected candidates OA No.3092/2009 would be required to be",,,,

treated as having been filed when they were impleaded as respondents and thus the claim to quash the select list would be required to be treated as,,,,

barred by limitation.,,,,

The reasoning of the Tribunal in Prem Singh and others case that the selections could not be challenged because the candidates knew that the,,,,

select list would be prepared applying Rule 219(j) of the Indian Railways Establishment Munual is an incorrect reasoning because whether or not said,,,,

Rule would apply would be ontingent upon whether or not seniority list could be prepared as envisaged by Rule 320 of the Railway Establishment,,,,

Code and thus the principle of law that a person cannot approbate and reprobate i.e. cannot take a chance on the terms notified and having failed,,,,

question the very process which gave the person a chance to compete is not applicable in the instant case.,,,,

Further, we find that it is not the case pleaded by Prem Singh and others as also Ram Rajiv and others that a seniority list as envisaged by Rule",,,,

320 of the Railway Establishment code was not drawn up.,,,,

Thus, not for the reasons given by the Tribunal; but for the reasons given hereinabove W.P.(C) No.8512/2011 and W.P.(C)2628/2013 filed by",,,,

Prem Singh and others and Ram Rajiv and others respectively are dismissed.,,,,

As regards W.P.(C) No.901/2012 filed by Kailash Chand Gurjar we find that even he has not pleaded that a combined seniority list as,,,,

contemplated by Rule 320 of the Railway Establishment Code was not prepared.,,,,

Thus, W.P.(C) No.901/2012 is dismissed by us, but not for the reasons given by the Tribunal but for the reason of the law as we understand and",,,,

as declared by the Supreme Court in M.Ramjayaram's case (supra).,,,,

Before concluding we must note that the Railway Authorities need not have issued any clarificatory circular on June 19, 2009 for the reason the",,,,

same was based upon the decision of the Division Bench of the Punjab & haryana High Court, which we have opined to be the result of a misreading",,,,

of the decision of the supreme Court in M.Ramjayaram's case (supra).,,,,

Rule 219(j) of the Indian Railways Establishment Manual cannot be struck down as unconstitutional. Whether or not it can be applied would be,,,,

contingent upon whether or not a seniority list can be prepared as envisaged by Rule 320 of the Railway Establishment Code.,,,,

4.9 Thereafter, in review the court observed as under:-",,,,

“We dispose of the writ petition quashing the select list in question and direct a fresh list to be prepared keeping in view the principle of law,,,,

declared in our decision dt. July 9, 2013.â€​",,,,

We have gone through the judgment.,,,,

Prima facie, it seems that tribunal has taken different view without considering the matter in true spirit. In that view of the matter, without making",,,,

any observation on merit, we quash and set aside the order of the tribunal and remit back the matter to the tribunal to consider the same afresh.",,,,

Both the parties will appear before the tribunal on 16.4.2018. The tribunal will proceed with the matter taking into consideration the subsequent law,,,,

declared by the different High Court and Supreme Court.,,,,

The petitions stand allowed.,,,,