BAILIA, J. - (1.) A short point is raised in this petition. The petitioner was initially appointed as Khalasi in Northern Railway, Jodhpur in the year 1981. Vide Advertisement No. 1/84, applications were invited by the Railway Recruitment Board, Ajmer for a number of posts which included the posts of Clerks Gr. I and Senior Clerks. The petitioner submitted an application for selection to the post of Clerk Gr. I as well as Senior Clerk. He was called for selection and after undergoing the entire process of selection, a panel was issued on 27. 8. 1985 which contained the name of the petitioner at Serial No. 27. Vide letter dated 13. 9. 1985, the petitioner was intimated that he has been selected for appointment to the post of Clerk Gr. I and has been allotted the office of the Divisional Accounts Officer, Northern Railway, Jodhpur and the appointment will be given to him by that office. This letter is Annx. 2 which is reproduced hereinbelow:- RAILWAY RECRUITMENT BOARd 41/32, Majo College Road Ajmer 305 001. No. RRB/rect/84-85 (1/84) Employment Notice No. 1184 Roll No. 108275 108092 To, Avinash Kant Gaur s/o Shri Krishna Kant Gaur, 14, Sangidas Thanvi Building, Inside Pole, Mahatma Gandhi Hospital Road, Jodhpur. With reference to your application for the post of Clerk Gr. I notified in Employment Notice No. 1184 Category No. 3 you are informed that:- You have qualified in the written Examination/interview, but your final appointment will be made by the office of the Divisional Accounts Office, Northern Railway, who will in due course send you an offer of appointment provided you are otherwise suitable. NOTE ; NO FURTHER CORRESPONDENCE WILL BE ENTERTAINEd Sd/- for Chairman, Railway Recruitment Board, Ajmer.
(2.) IN pursuance of this letter, the petitioner was given appointment vide order dated 4. 8. 1987. Subsequent to that, the petitioner was transferred from the office of Accounts Officer, Traffic Accounts, Northern Railway to office of Divisional Accounts Officer, Northern Railway, Jodhpur on 24. 05. 1988. The petitioner in due course passed the Appendix II-A Test and was consequently promoted to the post of Accounts Assistant. IN the year 1990, Appendix III-A Test was held for appointment/promotion to the post of Section Officer (Accounts) in which the petitioner was declared successful on 31. 07. 1991 and a panel was prepared on 11. 5. 92. IN this panel Annx. 6, the petitioner was shown at Serial No. 17 on the basis of the placement of his name in the panel for clerks Gr. I dated 27. 8. 1985. This panel was subsequently changed vide communication dated 2. 12. 1992. IN the panels dated 2. 12. 1992 and 15. 2. 1993 the petitioner has been assigned the position on the basis of his name in the panel of Clerks Gr. I issued by the Railway Recruitment Board, Ajmer on 27. 5. 87. The petitioner made representations to the superior authorities and ultimately filed Original Application No. 56/93 before the Central Administrative Tribunal. The petitioner's case was that as per Paragraph 306 regulating seniority of non-gazetted railway servants, a candidate for appointment at an earlier selection shall be senior to those selected later irrespective of the date of posting. The petitioner having been selected for appointment on the grade of Clerk Grade I and informed of such selection for appointment vide Annx. 2 dated 13. 9. 1985, his date of selection remains 27. 8. 1985 and it could not have been changed to the date of panel issued in year 1987 when actual posting orders were issued to him. The placement in the panel of selection for Accounts Assistant dated 19. 5. 92 was rightly made on the basis of his empanelment dated 27. 8. 1985. Therefore, his placement ought to have been made in the panel of 2. 12. 92 also as per his name in the panel of Clerks Gr. I dated 27. 8. 1985 and placement as disclosed in the panel dated 19. 5. 92 could not have been altered in the panel dated 2. 12. 92 and panels prepared subsequent thereto. The Original Application was dismissed by the Central Administrative Tribunal on 21. 5. 1997. Aggrieved with the order of the Central Administrative Tribunal, this writ petition has been filed. The petitioner's case is that the petitioner underwent the regular selection process in pursuance of advertisement No. 1/1984 in the year 1985 and result of his submission to such test was also declared on 27. 8. 85 by declaring him successful. He was informed vide letter dated 13. 9. 1985 that he has been selected for appointment as a result of the aforesaid selection held in pursuance of aforesaid advertisement issued by the Railway Recruitment Board, Ajmer. Said information to the petitioner dated 13. 9. 1985 has never been withdrawn. Thus, the petitioner was duly selected and informed of his selection for appointment as Clerk Gr. I in the year 1985. Thereafter, when the appointment/posting orders are issued, it is the act of the respondents on which the petitioner has no control. As per Paragraph 306, the petitioner's seniority inter se between the persons selected in 1985 and later selected has to be as per the date of selection and not as per the date of appointment. It was also contended by the learned counsel that notwithstanding delay in issuing appointment orders and notwithstanding holding of an enquiry in the alleged irregularities in the selection process of 1985, the selection of the petitioner made in 1985 was never cancelled. The fact that certain persons who were earlier left out to be called for selection but ought to have been called were also interviewed later on and as per their result their names were also included in the panel of selected candidates in order of their merit, it would not detract from the fact that the petitioner was in fact selected as per result of selection test taken by him on 27. 5. 85 and his result as a successful candidate was never recalled and was not selected for appointment on a later date. Mere alteration in order of merit in empanelment will not result in shifting the date of selection for appointment from 27. 5. 85 to 1987. It can at best be said that who were not called for selection due to fault of the respondents who ought to have been called for selection, when such error was brought to the notice of the recruiting authority they corrected the error by calling those persons only who were left out for interview, and were also successfully selected for appointment, they too became part of the existing panel. Since because of their inclusion, there was change in merit position, the select list was issued to reflect their placement amongst the selected candidates, prepared the result and according to their result made the placement in the existing select list. Those persons, who had been subjected to selection process of the very same year later than the petitioner because of the fault of the administration, can claim to be the members of class of persons selected for appointment as per selection held in 1985 but on that account the year of selection of the petitioner cannot be shifted from 1985 to that of 1987 when actual posting orders were issued. Merely departmental communication by the Chairman, Recruitment Board, without subjecting the persons who had underwent selection process in the year 1985 and empanelled for appointment on 27. 8. 85 which remained unaffected, could not be altered without holding a fresh selection on by cancelling the earlier selections in accordance with law. The mere alternation in the select list as a result of supplemental selections made in 1987 would not make any difference. It was also contended by the learned counsel for the petitioner that at any rate the respondents have acted in breach of principles of natural justice in affecting the rights of the petitioner adversely, he has been informed of his selection in the year 1985, that information was never withdrawn and he has been given appointment only in pursuance of that selection. Thereafter in the panel prepared on 19. 5. 92, for appointment on the post of Accounts Asstt. also he was assigned his place as per his empanelment dt. 27. 8. 85. The respondents cannot change the year of selection of appointment made in 1985 to 1987 without affording an opportunity of hearing and to explain the rules in proper perspective to the authorities, the Tribunal has patently erred in not considering the aforesaid position of law. The respondents, while do not dispute that Paragraph 306 governs the case of inter se seniority of those persons who have been selected earlier in past of time to be considered senior to those who have been selected later but has urged that because of some error crept in the selection made in 1985, the panel prepared in 1985 was never given effect to and the fresh panel was prepared by the recruitment Board in 1987 and the petitioner was given appointment only in the panel sent by the Recruitment Board in the 1987, therefore, his year of appointment and year of selection remains the same and therefore, he has rightly been placed in the panel of 12th Feb. , 1992 as the person selected for appointment in the year 1987. A perusal of the rules regulating seniority of non-gazetted railway servants reveal that seniority of an incumbent is required to be considered in multifold aspects. Chapter III governs the principle of which seniority of an incumbent of non- gazetted cadre is to be determined. Paragraph 302 envisages that unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. It further reveals that it also lays down the criterion for fixing seniority inter-se amongst the promotees and direct recruits where the posts are partially filled by direct recruitment and partially by promotion. While laying the principle operating roster system for determining seniority inter-se between the direct recruits and promotees, it further envisages that in each group promotee shall maintain their inter- se seniority which is already existing. Obviously, this rule lays down the general criterion for fixing individual seniority as well as the date from which the seniority of the incumbent is to be computed which ordinarily shall be the date of the appointment to the grade. However, this principle is not absolute in term and is subject to other provisions of the rules. That is to say if other specific provisions are there to determine the seniority of an incumbent in given circumstances rule under Paragraph 302 gives way to special provision in other Regulations. Paragraphs following paragraph 302 contain such specific rules.
(3.) PARAGRAPH 303 operates on the field where the recruitment is by Railway Recruitment Board or by any other recruitment authority. It provides that in case candidates who are sent for initial training to a training school, their inter-se seniority shall be determined in order of merit obtained in the examination held at the end of the relevant training period before being posted against working post and where a candidates is not required to undergo training to the training schools, his inter- se seniority is required to be determined in order of merit assigned at selection by the recruiting authority. PARAGRAPH 304 is in the form of explanation to PARAGRAPH 303 by providing that when two or more persons share the same place in merit at one and the same examination, their inter-se seniority is to be determined by the date of birth, the older candidate being the senior. PARAGRAPH 305 is rider to PARAGRAPHs 303 and 304. It provides that where a person whose seniority is to be governed under PARAGRAPHs 303 and 304, is unable to join his duty within a reasonable time, he looses his seniority in accordance with merit and is placed at the bottom below all the candidates selected at the same examination who have joined within the time allowed for reporting duty or even below candidates of later selection who have joined earlier than him. Before examining Paragraph 306, the focal point of the contentions raised in this case, the salient character of the scheme of determining seniority under the regulations may be noticed in the context of plea. While Paragraph 302 provides for starting date for assignment of seniority of any individual, Paragraph 303 and 304 refer to the principle giving inter-se seniority that amongst candidates selected at the very same examination/selection for appointment and offered appointments simultaneously. Such inter-se seniority is to be computed on the basis of merit at the same examination/selection, the older candidate being the senior subject to that a person who fails to join within the time allowed for joining as per the appointment order, he looses his seniority in order of merit but relegated to the assignment of seniority with effect from the date of joining only. It may further be noticed that Paragraph 302 is not absolute in terms but is subject to specific provisions of other paragraphs. In contract with the aforesaid Paragraphs 302 to 305, Paragraph 306 refers to seniority of number of persons as a class and not seniority of an individual. Paragraph 306 speaks of seniority of persons selected for appointment at one and the same selection vis a vis persons so selected at a later selection. Paragraph 306 reads as under:- " 306. Candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case covered by paragraph 305 above. " It is abundantly clear that this talks of seniority of a group of persons in plural and lays down the principle that candidates selected for appointment at an earlier selection shall as a class be senior to those selected later irrespective of the date of posting except in the case governed by Paragraph 305. As explained above, Paragraph 305 operates where a person fails to join within a reasonable time after receipt of the orders of appointment. Paragraph 305 does not come in operation where the appointment orders itself has been issued after lapse of long time. Therefore, where a person fails to join within a reasonable time or the time allowed for joining under the orders of appointment, he looses his seniority in terms of Paragraph 303/304 and relegated to determination of seniority under Paragraph 302 with reference to date of actual joining and that principle remains unaffected under Paragraph 306. However, where Paragraph 305 does not operate while inter-se seniority of individual amongst the persons, selected for appointment at the same examination/selection, is determined in order of merit, those candidates as a class with their inter-se seniority rank senior to persons selected at a later selection/examination. Paragraph 306 has nothing to do with inter-se seniority of the persons appointed at the same examination/selection. The same principle applies even in a case of determining seniority of persons selected for promotional vacancies by dint of Paragraph 309. ;