Rly Minister

-1IN THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENCH JAIPUR. DTD: ORIGINAL APPLICATION 26/2006 AND OTHER MISC APPLICATIONS C P ANTHONY

V/S

UNION OF INDIA AND OTHERS.

R E J O I N D E R TO REPLY OF RES. NO.03 MOST HUMBLY, 1.That the original application is not only maintainable but also deserves to be considered on merit alone.The single point of All Pervading Mischief has to be brought to the notice of the Honourable Tribunal when written examination was not held according to the mandate of the Willingness for Selection written exams were to be held and as per the Notification for selection dtd.23.06.05, viva voce was to be held. Record of Service summoned from the Deptt. to be assessed with the result that all the candidates called for viva-voce had no case of Disciplinary Rules and Vigilance Deptt. pending against any one of them. The selection was to be based purely on viva-voce without any other element except the annexure of willingness for selection on the basis of written exams. The promissory estoppel declaration of the official respondents stated that; “THE SELECTION WILL BE BASED ON THE VIVA-VOCE ONLY WITHOUT WRITTEN TEST” The official respondents have flouted their own declaration of promissory estoppel. And failed to give the applicant the benefit according to it while not observing the statutorily mandated anticipated vacancy. In the backdrop of not following their own promissory estoppel, How can the official respondents ignore the Mandate of Willingness for Selection based on written exams? That the present original application along with the rejoinders and other misc. applications against the answering respondents are maintainable in view of the fact that all the eligible candidates except the applicant are twice failure or thrice failures. And that the respondents NO. 03 and 04 were not selected on the basis of due procedure. The respondent No.04 has admitted that the official respondents have failed to follow the procedure it its letter and spirit as prescribed by the Railway Board. The posts have been restructured, wherein no reservation roster could have been applied. Whereas the Rosters applied by the official respondents stands quashed. They failed to apply the Model Roster of the DOPT as ordered by the Judiciary when the Railway Roster got quashed and the matter is pending before the Honourable Supreme court. The Forty Point Roster is also not applicable in the present case as the cadre strength is of 03 posts as well as it stands withdrawn. Forty point roster is only applicable where

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the cadre strength exceeds 15 posts. The Model Roster of the DOPT for 15 posts is relevant in the present cadre of 03 posts since the cadre strength does not exceed 15 posts. Reservation (100%) to the single post of Headmaster was provided while the other two vacancies were of Principals, wherein one later illegally occupied by Respondent No.05 on option basis. The official respondents showered him a favour to post him as Principal which previously downgraded and now upgraded to accommodate him. All the mischief was played by the official respondents to deny the applicant his well deserved post of the Principal for which he substantially qualified.The selected respondents are to be blamed as they did not protest the selection procedure and the illegal induction of Sh.A.K. Chouhan as the applicant had done before the selection knowing the procedure was erroneous and malafide. They preferred to keep silent as they seem to have pre-fixed their selection well in advance. A pertinent question can be raised: How they got selected without knowing the true mandate of the procedure established by law? Their selection deserves to be quashed and their benefits withdrawn as they have themselves pleaded in their reply. It can thus be seen that there is a single cause of action i. e. All Pervading Mischief which includes sub-causes as well when due procedure is not followed and the entire Record of Service is vitiated . AIR 2002 SC 1119.:(A) It is incumbent upon any tribunal to examine facts and record of selection when questions are raised about the illegal procedure adopted by the official respondents and when the same is defended by the private respondents. The tribunal as a procedure not only examines record of service but also examines file notes which help to prepare the tabulation sheets. K.L.Nandakumaran Nair v/s K.I. Philip, 2001(6) Supreme 902: 2001VII AD (SC) 509 : 2001 (4) SLR 280. (B) The selection process being within the period 01.07.04 to 30.06.06, the Railway Board letter dtd.12.09.05 got implemented within the same period i.e. on 12.09.05 itself. The panel of selection was branded as Provisional and the migration of Res. No.05 termed as temporary working as it was incumbent upon the official respondents in the light of the Rly.Board letter dtd.12.09.05. The official respondents could have waited for 12 days as the letter dtd.12.09.05 was in process owing to the fact that Rly Board letters dtd.11.03.03 ( mentioned in letter dtd.12.09.05) and 07.08.03 already prescribed written exams for teaching category which includes Headmasters and Principals and the rules of these letters were being evolved culminating in the letter dtd.12.09.05 prescribing not only written exams but also viva-voce. However, the official respondents hastened through the entire affair and conducted viva-voce as oral interview on 01.09.05. In any case it was incumbent upon the official respondents to conduct written exams as per the mandate of previous letter dtd.11.03.03 when letter dtd.12.09.05 was awaited or just to wait for letter dtd.12.09.05. In other case, the applicant has secured 35 highest marks fulfilling the condition laid by the official respondents that selection will be based on viva-voce only. Therefore, the applicant is not only eligible for all the consequential benefits but a legal claimant of the post of Headmaster or to the post of Principal downgraded to absorb Gr ‘C’ PGTs on promotion. The letter dtd.11.01.88 places all the PGTs acquiring Senior Grade in Group ‘B’ equivalent to Posts of Class II Principals, Headmasters and Vice Principals. Whereas, the selection to the posts of Headmasters or Principals is from Group-C to Group-B. The applicant is alone eligible for the posts of Headmaster. Those who have acquired Group-B status are barred and estopped from the process of selection as the selection is only from Group-C to Group-B as stated by the official respondents. The Respondent No.03 and 04 had already acquired Group ‘B’ status before are not eligible for the same post of Group ‘B’ of Headmaster. Besides, all the candidates over and above the applicant are in Group-B having acquired Senior Grade with Group-B status in terms of the letter of the Railway Board dtd.11.01.88 which accords special Assured Career

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Promotion to the teachers, quite different than the one given to the other railway servants. Reference may be made to State of Haryana v/s Prem Singh, AIR 2000 SC 2078 that Promotion can be made only from an inferior to the higher post . C) The migration of Respondent No.05 from a different zone of WR to NWR who are different employers on zonal basis under the Ministry of Railways as shown in the F-16 of the Income Tax Assessment Record of all the respective zones. His migration has violated the Para of IREM on Assessment of Vacancies and denied the applicant the right to be promoted whose promotion was imminent considering the fact that the official respondents had declared that viva-voce alone will be the basis of selection. Para 312 of the IREM protects the lower grade candidates to be promoted to higher posts from being occupied by transfer even by selected Group ‘B’ employees and, therefore, circular dtd.24.06.69 read with para 312 of IREM is valid to protect the fundamental right of equality of opportunity as well as legal right of promotion. The law is specifically clear that the transgression by the upper class employees over the posts on which the lower grade employees are to be promoted is violative and repugnant. D) When the applicant is working under the private respondent No.04 and the official respondents are likely to get prejudiced against the applicant, it is necessary to plead that during the pendancy of the application any prejudiced order be brought on record and quashed by the honourable tribunal. Tribunal is a fact finding authority. If it ignores all the things brought to it, the matters will be remitted back to it by the higher court for further fact finding exercise. UDAI CHANDRA V/S UOI 2000 (4) SCT 1074. 2. The applicant has full right to challenge the selection procedure as the applicant has scored more marks than the private respondent in viva where as per declaration of the official respondents the selection was to be held through viva voice only and as per mandate of willingness for selection written examination was to be held. The applicant is a successful employee that is why he is enjoying the master-servant relationship in employment with the railways as the master and the applicant as the servant. The applicant participated in the selection with objection. No one else had objected to the process of selection. Therefore, if any benefit is accorded to Respondent No.03 and 04, the same must be accorded to the applicant with all the consequential benefits. If not, the applicant cannot be estopped from challenging the process of selection. The Law of Estoppel cannot be applied to operate as the selection procedure is itself against the statutory rules. It is a well established proposition of law that “There is no estoppel against statutory rules”. 2002(3)ST 301 (P & H), 2001(8) SLR 263. Besides, the official respondents adopted promissory estoppel but failed to implement it. Promissory estoppel is valid only when it is implemented. Otherwise, it fails the very first test of non-implementation. If they had implemented, they would have to empanel the applicant resorting to statutorily mandated anticipated vacancy since the applicant secured the highest marks in viva-voce alongwith respondent No.04. They were not interested in the applicant, due to some ulterior reasons well known to them, the action of the official respondents suffers from ultra-vires need to be quashed. Such a promissory estoppel cannot be said to be in accordance with the law and statutes and cannot bind the applicant and restrict him from challenging the procedure as illegal, partisan, biased, and unconstitutional. Moreover, the private respondents are twice/thrice failure, they have no right to be selected and when the applicant has challenged their selection, they have no right to estoppels against the applicant.

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Right to challenge has been upheld by the Honourable Supreme court reportable in AIR 2000 SC 2322. 3. The application is not time barred as the OA was filed on 09.01.06. Earlier, the respresentation was made on 04.07.05 as a protest to the selection notification dtd.23.06.05 was not rejected. The viva-voce was held on 01.09.05 without following the mandate of Willingness for selection through written exams. The results were declared on 05.09.05 secretly to the private respondents. The private respondents were officiating as Principals. They did not notify the results to the applicant knowing that the applicant had protested earlier and that he would challenge not only the results but also the selection procedure and would obtain a stay or some interim order. It was incumbent upon the private respondents acting as Principals to notify the results as per the directive given by the official respondents to them of intimating the results in their letter dtd.05.09.05. Promotion and posting letter dtd.13.09.05 was also not intimated to the applicant. Legal Notice was arranged to be issued by the applicant to the official respondents on 08.11.05. Representation dtd.19.12.05 was again sent to the official respondents as per IREM that there is no bar to the number of representations and that the same should be decided on merits. The Official respondents kept silent on the matter and did not decide it. Until and unless the representations are not rejected, the respondents cannot claim any relief from litigation. Thus the applicant filed the OA on 09.01.06 and the honourable tribunal gave the Date of Admission After Notice on 03.03.06. 4. FACTS OF THE CASE: REJOINDER TO REPLY GIVEN BY RESPONDENT No.03. (A) The applicant is the third in genealogy in the Jaipur Division of this Railway and himself a Railway Employee. Earlier, his father retired from the Ticket Checking Branch in 1977. Before, his father, his grandfather was guard and fought World Wars on behalf of India as decided by the Indian National Congress and died in 1948. The applicant was born on 16.09.1959 in St. Francis Hospital, Ajmer and brought up in Ajmer itself. Though the applicant is a linguistic and religious minority, he has not applied for any registration of any special status of minority or any other status. As such, the applicant is a member of General Category. Since the respondent no.03 has asked to substantiate and establish the fact that the applicant is a citizen of India, the applicant also has a right to urge the tribunal to call for his caste certificate and examine the same, since, the respondent had a long association with St. Paul School, Ajmer, a minority institution run by Catholic Christian Missionaries, it is feared that the said respondent had changed his status and is not eligible for Scheduled Caste status. His religious and caste status should be called for from the said missionaries and the Collector of Ajmer, his place of permanent residence, which is necessary keeping in view that the basis of reservation for SC candidates is basically communal in nature. The said urging is protected u/s 500 of IPC and is not defamatory in nature. Since the respondents have raised the dispute of the applicant’s citizenship on the basis of his religion only, it should be termed as communal and the same conduct is condemnable and amenable by the court. The respondent No.03 and 05 have concealed that they were subjected to investigation on a criminal charge during their process of selection besides, respondent no.05 did not obtain any vigilance clearance on this point, his transfer from other zone and promotion from group ‘B’ to Group ‘A’ or to the Senior Scale Principal is null and void without such a clearance. (Dharam Pal. Singh v/s State of Rajasthan, 2001(1) SCT 130 (Raj) (FB) (B) The applicant was promoted to the post of Post Graduate Teacher(English) on 22.11.93 from the post of Trained Graduate Teacher(English). The official respondents proposed to hold a regular selection for selection posts. The posts

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are 100% selection regular posts based on Merit Promotion Scheme and not on seniority. The total number of vacancies assessed are incomplete- only two, whereas, the correct total vacancies position should have been four if the official respondents had advertised one additional vacancy as anticipated in lieu of retirement of respondent No.03 who retired on 30.06.07 and another fourth vacancy should have been advertised had Respondent No.05 not been illegally inducted from the foreign zone. The panel of the anticipated vacancy would have lasted from 05.09.05 till 04.09.07 for two years even after the retirement of respondent no.03 on 30.06.07 . The applicant having highest marks in viva-voce could have been provided promotion to the post of Group-B Headmaster. Neither, the anticipated vacancy was advertised nor vacancy in place of illegally inducted respondent no.05, who was working on temporary basis to be sent back if challenged, was advertised. This was done to deny the applicant the said selection post against which the applicant’s selection could have been fortiori legal as the selection was declared to be held only on the basis of viva-voce- 2000(4) SCT 695 (SC). Further, it is a well settled proposition of law that the reservation to any community is barred when they apply against General Category whether in previous or present selections. The law of estoppel operates to deny the promotions against reserved category when they apply against General Category posts. Respondent No.03 had previously and presently opted against General Category selection is barred from further reservation. Not only he, but others also can’t claim such reservations as they have applied against General category. Section 115 of the Indian Evidence Act operates such estoppel. The Respondent No.03 like other reserved category candidates were recruited through merit in general categories and further they applied for promotion in general categories in previous selections as well as present selections, as such they are estopped to get reservation further in reserved category quota not only as per the said letter but also sec.115 of the Indian Evidence Act. The Railway Board letter of even number and even date 21.08.97 laid down in Para No.03 “With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 40 point vacancy based rosters of promotional categories shall be replaced by post based rosters.” As such the Respondent No.03 like other reserved categories are not entitled to reservation in promotion on the basis of 40 point roster even.. The L-type Roster of the Railways has been quashed and the matter is now subjudice in Supreme Court, no reservation can be made on the basis of the said roster. Only DOPT Model Roster is applicable where the reservation for any of the categories is not applicable in the present circumstances. The same letter of the Rly Board of even no. and even date laid down in Para No.07 “While preparing post based rosters, care should be taken to ensure that reserve roster points are spread over evenly and not kept together as far as possible.” It is seen in the Rly L-Type Roster dtd.21.08.97 that in the present cadre of 03 posts initial appointment goes to Unreserved, then the 1st point goes to SC, the second, third and fourth points go to unreserved. Whereas, it is clear that the reserved points are not evenly distributed resulting in loss of opportunities to the general category candidates. It is due to this fact alone that the Railway L-Type Roster has been quashed and pending in Supreme Court. That is why, the Railways in the selection of 2001 did not implement any reservation roster. Neither the Railway L-Type Roster nor 40-point Roster is applicable for reservation. Any reservation on this basis is unconstitutional and illegal. It is

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only the MODEL ROSTER OF DOPT IS APPLICABLE which does not provide reservation in the present facts and circumstances. The futility of the Railway L-Type Roster and Forty Point Roster has been mentioned by the Western Railway in their letter No.E(G)1024/2/4 Vol.I, dtd.16.03.2001where inspite of the existence of 04 vacancies, they did not accord reservation even to one post of Headmaster. The table of the said letter is reproduced for persul as under:Total no. of vacancies assessed

Percentage requirements as per CAT/Mumbai’s Judgement

SC \\

Reservation as per Roster

ST

NIL NIL

01

NIL

Reservation Provided

SC

ST

NIL

NIL

Even in the selections of 15.10.03, no reservation was provided on the same grounds. What new conspired that reservation was introduced in the selections of 05.09.05? The reason is that the official respondents ignored the illegality of the Railway L-Type Roster and Forty Point Roster which have been done away with and applied reservation formula according to the illegal rosters. Had they gone with the Model Roster of the DOPT, they would have laid fair foundation for implementation of reservation as per law and accorded fair and impartial treatment to the General Category. The terms of the letter dtd.27.05.76 having been quashed and now do not find any place in Indian Railway Establisment Manual, the statutory code of rules, except the one annexed by the applicant. The applicant is fifth among general candidates as S.Naqvi retired before selections after excluding three SCs against one SC post. The total number called are eight (5 + 3) which is correct as against one General Vacancy five are called and against one SC vacancy three are called as per zone of consideration rule given in Indian Railway Establishment Manual. In selection posts, the merit is the prime consideration which decides selection and the zone of consideration is decided as per seniority i.e. by birth in the said cadre. Therefore, besides this no other consideration is given to seniority in 100% selection posts. The respondents have subverted their own selection by claiming that they have been selected on the basis of seniority. A senior employee has no vested right to automatic promotion. The only right he has is that of right to consideration. The court can direct the authority not to straightaway promote such person. Government of Andhrapradesh v/s VSR Murthy, 2001(1) SCT 363(SC) The forty point roster was enunciated by Supreme Court in Union of India v/s Virpal Singh(1995) 6 SCC 684 in a Railway Case for Non-Gazetted Grade-A, B, C Guards for non-selection posts for the Railways itself. The present selection of 05.09.05 is only for selection posts of Group-B Headmasters. The said letter dtd. 05.09.02 clearly mentions reservations for Gazetted posts which is not in conformity with the Supreme Court enunciation. The honourable SC only provided reservation on the basis of 40 point roster applicable to non-selection and non-gazetted posts of Guards. The letter dtd.5.9.2 incorporates 40 point reservation for gazetted and selection posts and not for non-gazetted posts and non-selection posts. As such the letter dtd.05.09.02 is itself illegal and not according to the mandate laid down by the

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honourable SC. There was no shortfall of SC at point No.01 as he and other SCs even STs had been selected by Group “B” Selection Committee giving them Group “B” status while acquiring Senior Grade of 7500-12000 as per letter dtd.11.01.88 in conformity with the said above ruling of the honourable Supreme Court. The official respondent have averred that the reservation has been carried forward for SC. However, to provide carry forward beyond 03 years is illegal. The SC/ST Reservation Bill, 2008 has introduced the carry forward procedure meaning that the posts of SC/ST will not be dereserved. Since the selection was held prior to this law, it is not relevant and applicable in the selections of 01.09.05. Moreover, prior to disputed selection, reservation for SC was provided in 2001 when NWR and WR held combined selections with NWR just shaping, NWR and WR got bifurcated into two separate zones in Oct.2002. WR conducted the said combined selection in 2001 and did not select any reserved category but later itself carried forward to its zone of WR without any carry forward provision for NWR since this zone was newly created with its head office at Jaipur. How can the official respondents say that they have carried forward the vacancy reserved for SC? The respondent No.03 has hurled abuses and insults and tried to subvert the process of law saying that point no.02 & 03 goes in favour of the unreasoned terming general category as the unreasoned which is the category of the applicant also. Art.16(4) is an enabling provision for reservation if the SC/STs are not sufficiently represented in services. It does not give any privilege or status to humiliate any one. The application of any roster is impossible when the post of Principal is downscaled and made equivalent to that of Headmaster which in fact can never be equaled as the Principal is the head of the institution of the Senior School and the Headmaster is the head of the Secondary School having different responsibilities and avenues of promotion. (C) The action of the official respondents is acclaimed by respondent no.03 with regard to the assessment of vacancies which stand is not justified as already detailed in para (B). In fact the correct assessment of vacancies should have been four and not two. Out of these four, two posts of Principals fell vacant due to the retirement of Principals in Senior Scale but illegally occupied by Respondent No.04 and 05. Besides, one post of Headmaster fell vacant at Rewari which was illegally occupied by Respondent No.03. One additional vacancy was not advertised as anticipated vacancy besides no waiting list prepared to meet shortfall due to some extraordinary circumstances. (D) The applicant has not merely stated Scales but also various posts available in Secondary and Senior Secondary Schools and that the posts of Principals at Aburoad and Bandikui have been down scaled from Senior to Junior Scale and the official respondents have desperately made them equal to the post of Headmaster to apply all the mischief for applying roster when no roster can be possibly applied. They have maneuvered and acrobated for accommodating illegal selections, non-applicable rosters and illegal induction of Respondent No.05. The orders dtd.24.06.1969 and 31.03.1971 are statutory and amends IREM which protects the promotion of employees of Group “C” to Group “B”and goes in consonance with Column Rule 11 that Posts of Promotion of Headmasters are promotional posts which should be filled by promotion, failing which, by deputation, failing which, by direct recruitment. There is no element of Transfer as has been done in the case of Respondent No.05. This rule also specifically provides for the protection of promotion of Group ‘C’ Post Graduate Teachers to the posts of Headmasters in Group ‘B’. Even the Honourable Supreme Court has

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not permitted transfer even on option basis from one cadre to another cadre. The inter-cadre transfer from one zone of WR to NWR of Respondent No.05 is illegal. Reference may be made to UOI V/s Mamata Anurag Sharma, 2001(6) Supreme 905 ; 2001 VII AD SC 451 ; 2001(6) SLT 560 ; 2001(4) SCT 416 (SC) ; 2001 (4) SLR 374. The vacancy for Respondent No.05 was intentionally created at Rewari by allowing the Headmistress to quit. Considering the fact that two Senior Scale posts of Principal would become vacant due to the retirement of Sh.Y.D. Mittal at Bandikui and Sh.K.D. Chaubey at Aburoad, Respondent No.05 was invited with undue favour to occupy any one of them as in his previous zone there was no such immediate vacancy. He was first made to occupy the post of Headmaster at Rewari when the Headmistress quit and then made him switch to the post of Principal at Aburoad providing him not only illegal induction from other zone but also providing him promotion from the post of Headmaster to that of Principal. The official respondents have outmaneuvered all the opportunities of the applicant just to provide the respondent No.05 with undue favour. They have wiped off all the opportunities of the applicant till 2025 to be promoted to the post of Principal, when the respondent No.05 will retire. The applicant will retire before him in 2019. A grave act of injustice has been perpetrated protect the illegally inducted. The notification dtd.23.06.2005 is violative of propriety and norms of justice and against the rule should be withdrawn. If respondent No.05 has not been approved for Group-A by the UPSC, he may be stopped and sent back. (E) The L-type Railway Roster has been quashed and the case is pending in Supreme Court. The matter being subjudice, then: Why the Official respondents implemented the same? It was implemented just to provide illegal reservation to Respondent No.03. In the absence of non-applicability of L-Type Roster of the Railways and the non-applicability of the Forty Point Roster as per the verdict of the Supreme Court, the only course of action left with the official respondents was to adopt the Model Roster of the DOPT which serves not only with guidelines but also provides a fool-proof roster as per norms of equity and justice not only to the reserved category but also to the general category. The illegal induction of Respondent No.05 has been dealt with in details in Para (D) and need not be repeated. The ultra vires of letter dtd.27.05.76 have also been dealt with in details in Para (B) (F) The Annexure A-5 of 12.09.05 does not only speak of position on or after 12.09.05 but also speaks of procedure to be followed before 12.09.05. It specifically mentions three letters of Railway Board. Firstly, letter No.E(MPP)2001/19/3-Recomm.37 dtd.29.06.01 (RBE No.127/2001). Secondly, dtd. 25.7.01 (RBE No.143(2001). And thirdly, letter No.E(MPP)99/19/1/Pt dtd.11.03.03(RBE No.49/2003) advising therein the process of selecting the Instructors/Trainer/Principal. In these letters, there is a provision of written exams for the teaching category whether non-gazetted or gazetted. The element of viva-voce was added to the already existing provision of written exams in the letter dtd.12.09.05. The actions of the respondents in letter dtd.27.05.76 have been quashed. There is no reason why the provision of written exams was done away with when the selection notification contained the mandate of willingness for selection vide written exams only. The annexure of willingness for selection was through written exams only and the respondents themselves quashed their previous action mentioned in the selection notification 23.06.05 by the additional

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annexure for written exams. Even if the panel had been processed, it could have been cancelled in view of the fact that the official respondents themselves had described the panel as provisional. Panels are kept provisional in case there is court stay or interim order of subject to final outcome or the official respondents themselves intentionally downplay the legal procedure and adopt procedures not in conformity with law and rules to put up a garb that they are fair. Though the ultra vires of the letter dtd.27.05.76 has been dealt with in details, yet it would not be correct to say that the promotion to selection posts are based on seniority cum suitability. All selections to selection posts of Headmasters and Principals are based on Special Merit or Pure Merit Scheme or rather Merit Promotion Scheme right from the post of Teacher to Headmaster and from Headmaster to Principal and from Lecturer to Asstt. Professor and from Asstt. Professor to that of Professor, where no marks for seniority have been provided on the basis of letter dtd.11.01.88. The difference between selection and nonselection posts is that merit cum seniority forms the basis of selection posts and seniority cum merit forms the basis non-selection posts. The disputed selection was based on 100% regular selection posts where seniority counts in the matter for considering the candidates in the zone as per their birth or cadre, in other words, seniority and that there would be no extra-weightage for seniority which in selection posts are termed as illegal. Case of M.Ram Jay Ram decided in a Rly case in 1996 by the honourable Supreme Court. The applicant is already in the zone of consideration and was later called for viva voce held like oral interview where no opportunity was allowed to the applicant to vindicate and scrutinize the record of service along with the record of service of other candidates and as such the relative merit in the record could not be anticipated leaving the official respondents to decide the case of record of service on the back of the applicant against him and in favour of the illegally selected respondents No.03 and 04. Reference may be made to Donatus Engzanang v/s State of Mizoram, 2001(2) SCT 299 where reasons are not substantiated to downgrade from outstanding to good , the action of the official respondents is quashed followed by Supreme Court recently in the case of Dev Dutt. (G) The letter dtd.11.01.88 provides pure merit for selection of Headmasters, VicePrincipals and Principals. Whereas respondent No.05 after his illegal induction has been considered for the post of Principal only on the basis of non-selection procedure. The letter dtd.11.01.88 makes a clear deviation from letter dtd.27.05.76 as it takes within its ambit the entire teaching category whether gazetted or non-gazetted and makes them come under one group or category which culminated in the letter dtd.11.03.03 prescribing written exams for Principals and the entire teaching category. (H) The last reminder was given to provide an opportunity to the official respondents to vindicate their stand so that a legal action could be avoided. But they kept silent and waited for the legal outcome as if anticipating the adverse for the applicant since they knew that their promotees are already officiating in their promoted posts and the applicant would not be able to stay their promotion after that. The honourable tribunal gave some relief to the applicant by putting all the selections subject to the final outcome of the OA and then later in a misc application granted a stay to stop the illegal action of the official respondents.

5. Grounds of Relief : Reply By R espondent No.03

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(i)

The action of the official respondents in not only violative of Article 14, 16 but also violative of the Art.309 and legal right to property. No rule making authority has any power to transgress 309 which provides for fair and just conditions of service related to recruitment, promotion, transfer, etc. of employees. Promotion being a new kind of property created in favour of promotees should be imparted only by creating just and fair conditions of promotion. The posts are selections in nature and cannot be automatically transformed into non-selection posts and candidates cannot be promoted on the basis of viva-voce and record of service. Without written exams, vivavoce carries no meaning. Viva-voce is a natural corollary to written exams. How can inter-action in viva-voce be performed between the candidates and the selection committee without knowing the level of intelligence which only can be ascertained through written exams? Dr. Md. Ketab Ali v/s State of West Bengal. 2002(3) SCT 289 (Calcutta) How can record of service written by the employer be trusted unless the selection committee knows for itself nicely about the candidate’s performance in written exams? In the present case, the entire records of service of the promotees and the applicant stand vitiated with undue favour for the promotees and disastrous for the applicant.

(ii)

The L-Type Railway Roster stands quashed by the Tribunal due to being ultra-vires. The matter is now subjudice in Supreme Court. As such no reservation can be provided on the basis of the Railway L-Type Roster. DOPT Model roster is applicable which is a roster in the last resort since DOPT knew that rosters made by the departments will get quashed, whereas forty point roster enunciated by the Supreme Court does not speak about carry forward reservation. It is applicable to Group-C Guards and not applicable to higher key posts of headmasters and principals who are the mahagurus over the guru and being the head of the institution. Since only one post of headmaster was advertised with other post of principal, the reservation to 01 post of headmaster is 100% reservation, whereas, the post of the principal was downscaled, no reservation is possible in such a kind of restructuring i.e. upscaling and downscaling due to technical difficulty of how to apply any roster.

(iii)

That the Railway Board letters dtd.24.06.69 and 31.03.71 are applicable since they protect the promotion of Group C employees to Group B posts. It bars employees of higher grades to occupy the posts which are required to be filled by promotion of Group C. It may be read with Column Rule 11 related specifically to headmasters and principals. Such rules are specifically provided under Art.309 and cannot be abrogated. All rule making authorities shall abide by the said statutory rules and cannot issue instructions abrogating the law and the rules. It is well settled that executive instructions/orders cannot take away the effect of rules. Law does not include administrative instructions/directions issued by the Government for the guidance of its officers.(State of West Bengal v/s Anwar Ali, AIR 1952 SC 75)

The transfer of Sh.A.K. Chouhan to first occupy the post of headmaster and subsequently upscaled to the post of Principal is a clear violation of the said rules and the law frustrating the cause of the applicant who has emerged the highest scorer in viva-voce. The new vacancy advertised after the retirement of respondent No.03 was advertised within 02 years of the promotion dtd.05.09.05 goes to show that the official respondents did not take notice of the anticipated vacancy as they very well knew that the applicant will grab it if advertised. Further, the transfer of Sh.A.K. Chouhan has restricted the number of vacancies and violated the Para on Assessment of vacancies of the IREM. There was no deficiency of SC in Group B as all the candidates of SC category in the zone of consideration enjoy group B status as

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per letter dtd.11.01.88 in the synonymous grade of 7500-12000 like that of Headmaster or Vice Principal. (iv)

The letter dtd.27.05.76 has been quashed by the honourable Supreme Court. The selections to the posts of headmasters, vice-principals and principals should be based on pure merit as per letter dtd.11.01.88 read with annexure besides letter of procedure selecting Principals or the Head of the Institution all falling in the teaching category. It opens the gates for fair competition among the candidates only on the basis of performance in the viva and written exams. The minutes of the DPC show that unclear grading in the record of service has been awarded very good. This is a gross malignity of cancerous nature and malafides the entire records of service in undue favour of the promotees and against the applicant. In selection posts, there is no extra mileage for seniority. Selection (Regular 100%) posts of headmaster are not promotion simplicitor. The entire selection has been based on seniority overlooking the bad record of the promotees and outstanding record of the applicant who managed the educational administration of the entire school since 1997 as exams incharge with excellent results in Board, public and home examinations. The right of the applicant is grossly jeopardized.

(v)

The reply of this para grossly bars the right of the applicant which cannot be accepted.

(vi)

Denied.

(vii)

Unacceptable as the private respondents and the official respondents have been impleaded jointly can’t claim lack of knowledge to this effect.

(viii)

The single cause of action is inherent as the promotion and its procedure has been challenged. There is no estoppel available when statutory rules are violated. The applicant has a right to challenge illegal promotions as per the law laid down by the Apex Court.

(ix)

Illegal reservation and promotion given to an illegally selected candidate can be withdrawn with retrospective effect also. The question of retirement is a later issue. If the OA is allowed, it will change only the status of the promotees and will not take away their initial appointment. Moreover, if the Tribunal does not quashes his illegal promotion, the applicant has inherent right to be promoted immediately to the vacant post as he secured the highest marks in viva-voce. The record of service was undone with downplayed and negatived unduly favouring the promotees and frustrating the cause of the applicant. The record so vitiated is simply to be ignored.

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