ACHARYA, J. - (1.) -Both these writ petitions arise out of the judgment passed by the Central Administrative Tribunal, Jodhpur dated 14. 11. 2002, therefore, the same are being decided by a common judgment.
(2.) BOTH these writ petitions have been filed by the petitioners against the order dated 14. 11. 2002 (Annexure-1) passed by Central Administrative Tribunal, Jodhpur in Original Application No. 42/2002 in the case of Kailash Vasandani vs. Union of India and Ors. (1), whereby the Original Application filed by the respondent-applicant No. 2 was allowed and the petitioners were directed to interpolate the name of the applicant in the selection panel dated 4. 11. 1996 on the post of Junior Chemist and Metallurgical Assistant (for short "jcma" ). The brief facts giving rise to above writ petitions are as follows :- That Kailash Vasandani - respondent No. 2 was initially appointed as Khallasi on 31. 1. 1975 and was promoted as JCMA on ad hoc basis vide order dated 6. 2. 1980. Thereafter, he was reverted from the post of JCMA to the post of Lab Assistant on 26. 12. 1992. Against this order, he preferred an original application before the Central Administrative Tribunal, Jodhpur, which was registered as O. A. No. 426/1992. The said Original Application was partly allowed by the Tribunal vide its order dated 7. 2. 2000. The Tribunal held that Kailash Vasandani was senior to Rishi Raj Kalla - respondent No. 5, therefore, the reversion order dated 26. 12. 1992 was set aside w. e. f. 1996. The selection test was held for regular promotion to the post of JCMA and Kailash Vasandani appeared in the said test but was not found qualified for appearing in the Viva-voce test. Thereafter, he challenged this selection before the Tribunal by filing another Original Application No. 303/1996 but the same was dismissed by the Tribunal vide order dated 19. 7. 2000. The respondent No. 2 preferred a writ petition against the order dated 19. 7. 2000 before this Court and this Court vide its judgment dated 5. 11. 2001 allowed the writ petition and set aside the order dated 19. 7. 2000, passed by the Tribunal. It was held that the respondent No. 2 was eligible to be called for interview/viva- voce test on the basis of marks allotted for his seniority. Thus, the respondent No. 2 was permitted to appear in the viva-voce test on the basis of marks obtained by him for his seniority but the respondent No. 2 was not found successful and he was declared failed in the interview. It has been submitted in the writ petition that the respondent No. 2 not only failed in the viva-voce test but also failed in the written test and got only 29. 15% marks, which was much less than 60% marks and which is pre-requisite criteria for being selected to the post of JCMA. According to the record, respondent No. 2-applicant secured 15. 4 marks out of 35 marks in the written test and 8 marks out of 15 marks in viva-voce. It has also been pleaded by the petitioners that for the selection to the post of JCMA, Para-219 (g) and (h) of the Indian Railway Establishment Manual Vol-I provides the procedure to be adopted by the selection board, which reads as follows:- " 219. g "selection should be made primarily on the basis of overall merit, but for the guidance of Selection Board the factors to be taken into account and their relative weight are laid down below :- E (NG) I-69/pm 1-126 dt. 18. 9. 1969 Maximum Marks Qualifying Marks (i) Professional ability 50 30 (ii) Personality, address, Leadership and academic qualification 20 -- (iii) A record of service 15 -- (iv) Seniority 15 -- Note (i) The item `record of service' should also take into consideration the performances of the employee in essential Training Schools/institutes apart from the examining CRs and other relevant record. E (NG) I. 72/pm 1/92 dtd. 27. 6. 73 (ii) Candidates must obtain a minimum of 30 marks in professional ability and 60% marks of the aggregate for being placed on the panel. Where both written and oral tests are held for adjudging the professional ability, the written test should not be of less than 35 marks and the candidates must secure 60% marks in written test for the purpose of being called in viva- voce test. This procedure is also applicable for filling up the general posts. Provided that 60% of the total of the marks prescribed for written examination and for seniority will also be the basis for calling candidates for viva-voce test instead of 60% of the marks for the written examination. 1/65 dt. 5. 12. 1984 (h) The importance of an adequate standard of professional ability and capacity to do the job must be kept in mind and a candidate who does not secure 60% marks in professional ability shall not be placed on the panel even if on the total marks secured, he qualifies for a place. Good work and a sense of public duty among the consciousness staff should be recognised by a warding mere marks both for record of service and for professional ability. " Therefore, as per the criteria, it is clear that to maintain an adequate standard of professional ability and capacity to do a particular job, it must be kept in mind that a person who does not secure at least 60% of marks in professional ability, shall not be placed on the panel even if on the total marks secured, he qualifies for a place. In the instant case, the respondent No. 2 neither passed written test nor was successful in the viva-voce test. Hence, merely on the basis of seniority marks, he cannot be empanelled for the post of JCMA. Since, the respondent No. 2 was not found suitable by the selection board, his empanelment was rejected vide order dated 29. 10. 2001.
(3.) AGAINST the order dated 29. 10. 2001, the respondent No. 2 preferred an Original Application before the Tribunal, which was registered as O. A. No. 42/2002. The Tribunal after hearing both the parties, passed the order dated 14. 11. 2002 whereby the Original application of the respondent No. 2 was allowed and it has been held that the object of making the provisions as 219 (h) was to enable the empanelment of the candidates who have put in long satisfactory service. The Tribunal has also observed that rule making authority omitted to make the necessary amendment in sub-para (h) and that has resulted in consistency between para 219 (g) and (h ). In such circumstances, the learned Tribunal relied upon note to in sub-para (g) of para-219 and held that the respondent No. 2 shall be entitled for empanelment on account of his marks obtained by him as per the seniority despite the fact that he has not got 60% marks in aggregate. Against this order dated 14. 11. 2002, these writ petitions have been filed by the petitioners praying that the order passed by the Tribunal may be declared illegal and be set aside and it was further prayed that the respondent No. 2 may not be empanelled for the selection post of JCMA. Respondent No. 2-Kailash Vasandani is main contesting respondent, who has filed reply to the writ petition, wherein he has averred firstly in the preliminary objections that in D. B. Civil Writ Petition No. 2743/2000 decided by this Court on 5. 11. 2001, it has been held by this Court that the petitioner was fully entitled to appear in the viva-voce test conducted by the petitioner-Union of India. Para 219 of the Indian Railway Establishment Manual Vol. I, Sub-paras (g) and (h) have been discussed in detail by this Court. therefore, the petitioner- Union of India is disentitled from getting any relief from this Court. He has further alleged that the Union of India has suppressed the material facts and not produced the material documents before this Court. ;