O.P. Pal vs Union Of India & Ors.

By Mallika Arya, AM.-

The applicant is aggrieved in not reflecting his name in the integrated seniority list of Signal Department of WCR issued vide letter dated 26.05.2014 (Annexure A-1), which has resulted in denial of promotion to him to the post of ASTE Group ‘B’.

The applicant has submitted that he was initially appointed as Signal Inspector (Signal) in Kota Division w.e.f.09.11.1981. He was subsequently transferred to Jaipur Division. However, his lien has been maintained at Central Administrative Tribunal^{Kota Division. As per the seniority list of Senior Section Engineer notified} by the Kota Division on 09.06.2014 (Annexure A-2), the applicant’s name figures at Sr. No.5. However, in the integrated seniority list of S&T Department notified on 26.05.2014 (Annexure A-1), the applicant’s name is missing after Shri R.R. Ingle. The respondents had issued a notification for selection to the post of ASTE Group B on 15.01.2015 (Annexure A-4) under 70% LGS quota. Since the applicant’s name was left out in the seniority list published on 26.05.2014, he could not participate in the selection process. The applicant preferred a representation dated 27.11.2015 (Annexure A-8) pointing out the anomaly and requested to include his name in the integrated seniority list. Meanwhile, the respondents continued with the selection process and have published the list of candidates qualified in the selection process vide order dated 13.1.2015 (Annexure A-5). The applicant submits that all the 10 candidates except Shri R.R. Ingle are junior to him. The respondents have lastly published the final panel vide the order dated 17.12.2015 (Annexure A-9). A note appended below the order dated 17.12.2015 states that as this seniority matter of the applicant is pending, one post in the UR category is being kept vacant. However, vide the notification dated 14.12.2015, the respondents compelled the applicant to Central Administrative Tribunal^{appear in the written examination scheduled on 27.12.2015 just four days} prior to his retirement on 31.12.2015. The applicant submits that since he was on medical leave during the said period, he could not appear in the written examination. Moreover, after declaration of the final panel, there was no reason to call a single candidate (applicant) to take part in the written examination when the respondents themselves were at fault in not including the name of the applicant in the integrated seniority list. The applicant, being senior to others figuring in the panel has been kept out from the selection process. Thus, he is entitled to get promotion to the post of ASTE along with his juniors.

In their reply, the respondents have stated that since in the seniority list of S&T Department of Kota Division issued vide letter dated 11.02.2013, applicant’s date of promotion in the Grade of Rs.6500-10500 has been shown as 09.06.2008, his name has not been included in the integrated seniority list. However, immediate action was taken on receipt of his representation dated 27.11.2015 and his name was included in the seniority list vide letter dated 23.12.2015 (Annexure R-1). The applicant was apprised of this fact vide letter dated 24.12.2015 and he has duly acknowledged the same. He was called for supplementary written test for Central Administrative Tribunal^{the post of ASTE (LSG Quota) held on 27.12.2015 vide letter dated} 14.12.2015 (Annexure R-3). However, he did not appear in the supplementary written test and remained absent. Thereafter, he retired from service on 31.12.2015. Promotion to the post of ASTE is subject to fulfillment of certain criterion, i.e. passing the written examination and consideration of his name by the DPC. The applicant was considered for promotion and one post was kept vacant. He was given sufficient opportunity to appear in the selection of ASTE. At present, no post as notified vide notification dated 15.01.2015 is vacant and the final panel of 08 qualified candidates has already been published vide order dated 13.04.2016 (Annexure R-4). One post kept vacant for the applicant has also been filled by giving promotion to next qualified candidate from the select list due to absence of the applicant from appearing in supplementary written test.

The applicant in his rejoinder has reiterated that due to the lapse committed on the part of the respondents in not reflecting his name in the combined seniority list, he has been deprived to take part in the selection process initiated for selection to the post of ASTE (70 % LSG quota).

We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.

The facts of the case are not in dispute as the respondents have admitted that inadvertently, the applicant’s name got left out in the integrated seniority list of S&T department published on 26.05.2014 (Annexure A-1). On account of this, the applicant’s name could not get reflected in the list of eligible candidates who were required to take part in the selection process for promotion to the post of ASTE (70% LSG quota) issued vide notification dated 15.01.2015 (Annexure A-4). The short question arising for consideration in the present matter is whether an employee, who did not participate in the prescribed selection process for promotion and, despite being afforded an opportunity by the respondents to appear in a supplementary written examination and has failed to avail such opportunity, can thereafter claim promotion on the ground that his name was initially not reflected in the list of eligible candidates.

There can be no quarrel with the legal proposition that where promotion is to a selection post and the applicable rules prescribe a written examination/selection process, an employee does not acquire an automatic or vested right to promotion merely because he possesses the requisite eligibility. The right of an eligible employee is ordinarily a right to be considered in accordance with the applicable rules, and not a right to promotion irrespective of the outcome or completion of the prescribed selection process. The Hon’ble Supreme Court has consistently held that the State/employer is required to assess the candidates in accordance with the prescribed selection criteria and their comparative merit. The process of selection cannot be bypassed merely to confer promotion upon a person who has not undergone the prescribed procedure. In the case of Union of India vs. Mohan Lal Capoor, (1973) 2 SCC 836, the Hon’ble Supreme Court held that “where selection is contemplated, eligible candidates have to be considered comparatively on the basis of the criteria prescribed by the applicable rules.”

In the present case, the applicant has not been left without a remedy as the respondents had subsequently afforded him an opportunity to participate in the written examination. Thus, the alleged initial omission in the eligibility list, even if assumed to be an administrative lapse, was subsequently rectified by permitting him to participate in the supplementary examination. Once the Department had provided the applicant an opportunity to participate in the supplementary examination, it was incumbent upon him to avail the opportunity if he was keen for his candidature to be considered for promotion. He cannot claim the benefit of a selection process without undergoing the due process prescribed for all similarly situated candidates. Therefore there is no basis for holding that the applicant has ultimately been deprived of an opportunity to be considered. His non-selection is not attributable to any decision of the respondents but due to his own failure to appear in the supplementary examination.

In view of the foregoing discussions, we find no merit in the claim of the applicant. Accordingly, this Original Application is dismissed. No order as to costs.