S. C. AGRAWAL, J. - (1.) HARBANS Singh, the petitioner in this writ petition, is employed in the Railway Protection Force (RPF ). After his selection for the post of Sub Inspector Cr. II he joined for initial training on 1st April, 1965 and after completion of the training he was appointed as Sub Inspector Cr. II in the Armed Wing Branch by the order of the Chief Security Officer dated 30tb April, 1966. He was promoted as Sub-Inspector cr. I with effect from 11th March, 1974 by the order of the Chief Security Officer, Western Railway, Bombay dated 29th November, 1975. The next post higher to the post of Sub-Inspector Gr. I is that of Inspector Gr. III. The promotion to the aforesaid post is made on the basis of Seniority-cum-Suitability by a Selection Board. The Selection Board was constituted in 1975 to draw the panel of Sub-Inspector Gr. I and II who were suitable for promotion as Inspector Gr. II to fill up 17 vacancies of Inspectors Gr. III. Out of these 17 vacancies 4 were reserved for Scheduled Castes and 1 was reserved for Scheduled Tribes The Selection Board met on January 20, 30 and 31, 1976 and on the basis of the recommendations of the Selection Board, the panel of Sub-Inspectors who had been selected for promotion as Inspector Gr. II were notified by the Chief Security Officer in May, 6/10 1976. The petitioner was amongst persons who had appeared before the Selection Board but his name was not included in the said penal. On 5th April, 1978 the Chief Security Officer Western Railway, notified that it was proposed to convene the Selection Board to draw the panel of Sub-Inspectors Gr. II in the Executive Branch, Fire Service Branch and Prosecution Branch suitable for promotion as Inspectors Grade II It was also notified that in the Exceptive Branch, the selection would be convened for filling up six posts of Inspectors out of which three posts were reserved for Scheduled Castes, one post was reserved for Scheduled Tribes and two posts were vacant for general community. The lists of Sub-Inspectors who were eligible to appear for selection in the respective Branches were also circulated. In the list of Sub-Inspectors of the Executive Branch the names of 24 Sub-Inspectors were included, but the name of the petitioner was not included. The petitioner thereupon filed this writ petition. In the writ petition, the petitioner has challenged the selection made by the Selection Board which met on January 29, 30 and 31, 1976 and the panel (Annex. 5) dated May, 6/10, 1976 prepared by the said Selection Board. The petitioner has also prayed that the notification (Annex. 6) dated 15th April, 1978 with regard to selection fixed on 19th May, 1978 for the post of Inspector Grade II be quashed.
(2.) AS regards the panel (Ex. 5) dated May 6/10,1976 which was prepared by the Selection Board which met on January, 29, 30 and 31, 1976, the case of the petitioner is that the said selection was made in violation of Regulation 5 of Chapter XII of the Railway Protection Force Regulations 1966 (hereinafter referred to as the "regulations") which prescribes the mode for assessment of the merit of the candidates for the purpose of promotion to the post of Inspector Gr. III. The case of the petitioner is further that in the said panel 25 candidates from general community, 5 candidates from Scheduled Castes, and 2 candidates from Scheduled Tribes have been selected which is in excess of the total number of vacancies that were notified. The petitioner has submitted that by the selection of 33 candidates i. e. 16 candidates in excess of notified vacancies, the petitioner was deprived of his future chances of selection. With regard to the selection which was notified by notification dated 15th April, 1978, the case of the petitioner is that the sanctioned strength of the posts of Inspectors Gr. II and Inspectors Gr. Ill after the merger of the two cadres of Inspector Gr. II and III was 68 and that 10 persons belonging to Scheduled Castes were already working as Inspector Grade II and 6 persons belonging to Scheduled Tribes were already working as Inspector Grade II. The petitioner has submitted that under the circular of the Railway Board, dated 27th August, 1968 and 20th April, 1970. the reservation for Scheduled Castes in the whole cadre has to be 15% and that for Scheduled Tribes has to be 7-1/2% in the cadre and that in view of the aforesaid circulars the representation of the Scheduled Tribes in the cadre was more than 7-1/2% and no posts could be reserved for Scheduled Tribes and that in so far as the Scheduled Castes were concerned, only one post could be reserved for Scheduled Castes to maintain their 15% quota in the cadre. The petitioner has submitted that if the reservation for Scheduled Castes was confirmed to one post and no reservation was made for Scheduled Tribes. 5 posts whould have been available for general community and 24 candidates belonging to the general community would have been eligible on the basis of seniority and the petitioner would have been among the persons who would have been called for selection. The writ petition has been contested by the Railway Administration and a reply has been filed on their behalf. In the said reply it has been submitted that in so far as the challenge to the selection made in 1976 is concerned, the petitioner is guilty of laches in as much as he is seeking to challenge the selection which had been finalised more than two years before the filing of the writ petition. It has also been submitted that the aforesaid selection was made in accordance with the Regulations and that there is nothing in the Regulations to restrict the number of persons who could be put on the panel, and that the selection and placing on the panel of 33 persons although 17 vacancies were notified is not violative of the Regulations. In the said reply it has also been stated that Regulation 5 of Chapter XII of the Regulations has been amended by the Railway Board and that out of total 100 marks 50 marks are allotted for professional ability which includes written test for which 30 marks are reserved and oral test on professional knowledge for which 20 marks are reserved. Out of the remaining 50 marks 20 marks are reserved for personality leadership and academical qualifications, 15 marks were for record of service and the remaining 15 marks for seniority. In the reply it has been submitted that the assessment of merit was made in accordance with the aforesaid instructions. As regards, the selection which was to be made on the basis of the notification dated 15th April, 1978 and the reservation of vacancies for Scheduled Castes and Scheduled Tribes, it has been submitted in the said reply that the restriction for Scheduled Castes and Scheduled Tribes is done not on the basis of the total strength but on the basis of the 40 point communal roster prescribed by the Railway Board vide their letter dated 29th April, 1978 and that under the said 40 point communal roster certain specific points have been reserved either for Scheduled Castes or Scheduled Tribes and where ever that point occurs the same is required to be filled in by the candidate belonging to the respective community and in pursuance of the said instructions one post had to be reserved for Scheduled Castes and Scheduled Tribes and since there was an existing deficiency of two posts for Scheduled Castes, three posts were reserved for Scheduled Castes and one post was reserved for Scheduled Tribes out of the six vacancies. I will first deal with the challenge to the selection that was made by the Board in 1976 and the panel (Annex. 5) dated May, 6/10, 1976. In this regard it may be mentioned that even though the said panel was notified in May, 1976, the petitioner did not take any steps to challenge the said selection till 3rd May, 1978 when he filed this writ petition. There is thus, a delay of two years in the filing of the writ petition in so far as the challenge to the said selection is concerned. In the writ petition, the petitioner has stated that Shri K. K. Goyal, M. P. had placed the view point of the petitioner among other before the Railway Minister regarding the aforesaid selection and that several Sub-Inspectors had also filed representations to the higher authorities but without any results and that Shri V. C. Verma Sub Inspector (RPF) had also addressed a telegraphic notice demanding justice to the General Manager, Western Railway but nothing was done in the matter. The particulars about the aforesaid representations have, however, not been mentioned in the writ petition. In my opinion, there is no plausible explanation for this inordinate delay in the filing of the writ petition in so far as the challenge to the panel (Annex. 5) dated May, 6/10, 1976 is concerned. Even on the merits the petitioner has not been able to make out a case for striking down the said selection. The principal argument that was advanced by Shri Pathak, the learned counsel for the petitioner, to challenge the aforesaid selection was that under Regulation 5 of Chapter XII of the Regulations 25 marks have been prescribed for personality address, leadership and academic, technical qualifications and 25 marks have been prescribed for record of service but is making the impugned selection, the Board allotted 20 marks for personality, leadership and academic qualifications, 15 marks for record of service and 15 marks for seniority which was in contravention of Regulation 5. Shri Pathak has submitted that the letter of the Railway Board dated 29th June, 1973 (Annex. R-1) to the reply, is only a administrative order and it does not have the effect of amending Regulation 5 of Chapter XII of the Regulations and on the basis of the said letter it was not permissible for the Selection Board to depart from the marking system laid down in Regulation 5, It is no doubt, true that the letter (Annex. R-1) dated 29th June, 1973 of the Railway Board is in the nature of administrative instructions and it could not have the effect of amending Regulation 5 of Chapter XIl of the Regulations because the Regulations are statutory in nature having been framed in exercise of the powers conferred under Rule 33 of the Railway Protection Force Rules, 1959. The said letter (Annex. R-l) also stated that and amendment of the relevant provision of the Regulations would be issued in due course. The amendment in Regulation 5 in pursuance of the aforesaid letter (Annex. R-l) dated 29th June, 1973 has not been brought to my notice and it is not possible to any as to whether regulation 5 of the Chapter XII of the Regulation had been amended in accordance with the directions contained in the letter (Annex. R. l) dated 29th June, 1973 before the impugned selection. But even if it be assumed that Regulation 5 remained unamended on the date of impugned selection a perusal of the said Regulation shows that the system of marking laid down in Regulation 5 was only for the guidance of the Departmental Selection Committee and the same cannot be held to be mandatory as to preclude the Selection Board from departing from the said system. Clause (i) of Regulation 5 provided as under:- " (i) Promotion to the posts of Inspectors Grade III shall be made by the Chief Security Officer of each Railway. For this purpose, a Departmental Selection Committee consisting of the Chief Security Officer of the Railway concerned and two other Chief Security Officers to be nominated by the Inspector General shall be constituted on the request of the Chief Security Officer of the Railway on which the selection is to be made. This Selection Committee will examine the service records and confidential reports of the eligible Sub-Inspectors and will hold a written and viva-voce test. Selection shall be made primarily on the basis of overall merit, but for the guidance of Departmental Selection Committee, the factors to be taken into account and their relative weight are laid down below:- Maximum Marks Qualifying Marks Professional ability 50 30 Personality, address, leadership and academic technical qualifications 25 - Record of Service. 25 - Note: 1. The item "record of Service" should also take into consideration "seniority" of the employees but no separate allotment of marks need be made on this account. Note 2. Candidates must obtain a minimum of marks in professional ability and 60% marks on the aggregate for being placed on the panel. "professional ability will be assessed by holding a practical test, in addition to a written one. for selection up to the rank of Sub-Inspector. The practical test will be in the out-door duties such I. T. P. T. & W. T. For this purpose 50 marks will be divided into 30 for written and 20 for practical test. " 7. In the aforesaid clause it is clearly laid down that the selection shall be made primarily on the basis of overall merit and that the factors to be taken into account and marks that have been laid down 5 were only for the guidance of the Departmental Selection Committee. The said system of marks laid down in c!ause (i)of Regulation 5 cannot, therefore, be held to be mandatory in nature and was only directory in nature and it was open to the Selection Com. to depent from it and adopt another formula for assessment of overall merits. If the marking system as laid down in cl. (i)of Regulation 5 and the marking system followed by the Selection Committee are compared it will be noticed that in addition to the factors mentioned in Clause (i) of Regulation 5 the Selection Committee has also taken into account seniority and has allotted 15 marks for it by reducing the marks reserved for personality, address, leadership and academic technical qualifications from 25 to 20 and the marks reserved for Record of Service from 25 to 15. Under clause{l) of Regulation 5 seniority was to be taken into consideration while considering the record of service for which 25 marks were allotted. Under the marking system followed by the Selection Committee 30 marks were allotted for Record of Service and seniority. This means that under the marking system followed by the Selection Committee the combined marks allotted for Record of Service and Seniority were increased by 5 marks and the marks allotted for personality, address, leadership and academic technical qualification were reduced by 5 marks. In my view this departure from the marking system laid down in clause (i) of Regulation 5 is non on such a magnitude as to vitiate the selection Moreover in the reply filed on behalf of the Railway Administration it is stated that in proforma for allotment of marks where staff of two grades are made to appear for the selection has been prescribed by Railway Administration and the same is applied to all the candidates. This shows that the system of marking that has been followed by the Selection Committee is being applied uniformity to all the candidates The petitioner can therefore, have no cause for grievance. In these circumstances, I am of the opinion that the impugned selection of the person mentioned in the panel dated May, 6/10, 1976 does not suffer from any legal infirmity. The contentions that have been urged by Shri Pathak to challenge the said selection are therefore, rejected.
(3.) I may now take up the challenge to the selection made in pursuance of the circular (Annex. 6) dated 16th April, 1978. The said selection has been challenged on the ground that it has been made in violation of the circulars of the Railway Board dated 27th August, 1968 and 20th April, 1970 which make provision for reservation of posts for employees belonging to Scheduled Castes and Scheduled Tribes. The submission of Shri Pathak was that under the said circulars provision has been made for reservation of 15% of the posts in the whole cadre for Scheduled Castes and 7-1/2% of the posts in the whole cadre for Scheduled Tribes. It has been pointed out that the total strength of the Cadre of Inspectors Grade II was 68 and on the basis of the reservation of the 15% of the post only 10 posts could be reserved for persons belonging to Scheduled Castes and on the basis of reservation of the 1\ % posts, 5 posts could be reserved for persons belonging to Scheduled Tribes. It has been submitted that 10 selected candidates belonging to Scheduled Castes were already working as Inspector Gr. II, and 6 selected candidates belonging to Scheduled Tribes were already working as Inspector Gr. II and that only vacancy could reserved for persons belonging to Scheduled Castes and no vacancy could be reserved for persons belonging to Scheduled Tribes. Shri Pathak has, therefore, submitted that out of the 6 vacancies which were notified by the circular dated 15th April. 1978 only one post could reserved for Scheduled Castes and the remaining 5 posts should have been kept for the general community. In support of his aforesaid submission Shri Pathak has placed reliance on the unreported decision of a Division Bench of the Allahabad High Court in J. C. Malik vs. Union of India (Civil Misc. Writ No. 1809/1972 decided on 9th December, 1977) (l ). Shri Bapna, the learned counsel for the Railway Administration, has on the other hand, submitted that the circular dated 15th April, 1978, rightly provides for reservation of three posts for Scheduled Castes and one post for Scheduled Tribes and two posts for general community and that it has been done in accordance with the 40 point roster that has been prescribed by the Railway Board under circular dated 20th April, 1970 Shri Bapna has submitted that in accordance with the said roster the reservation of 15% posts for Scheduled Castes and 7-1/2% posts for Scheduled Tribes has to be done by taking into account all the posts in the service and the said reservation is not to be determined on the basis of the total number of posts in a particular cadre. Shri Bapna has also pointed out that the 40 point roster has been upheld by the Supreme Court in Akhil Bharatiya Soshit Karmchari Sangh Vs. Union of India (2 ). In my view, the aforesaid contention urged by Shri Bapna must be accepted. With great respect to the learned Judges who decided J. C. Malik Vs. Union of India (supra), I am unable to agree with the view expressed in the said judgment. In J. C. Malik Vs. Union of India, the Allahabad High Court was dealing with promotion to the post of Guards grade 'a' Persons who were working as Guards grade 'c were promoted as Guards grade 'a' against the posts reserved for Scheduled Caste candidates and the said selection was challenged by persons who were working as Guards Gr. 'b' and Guards Gr. 'c on the ground that the posts against which the Scheduled Caste candidates were selected were wrongly reserved for them. The Allahabad High Court accepted the said contention and set-aside the said promotion of the Scheduled Caste candidates. In that context, the learned Judges have held that under the circular of the Railway Board dated 20th April, 1970, the reservation of 15% of posts for Scheduled Castes has been made for appointment to the posts and not to the vacancies occurring in the posts from time to time. The learned Judges have pointed out that if it was held that the percentage of reservation relates to the vacancies and not to the posts serious consequences would ensure which would certainly result in discrimination against the employees not belonging to Scheduled Castes in as such as if 15% of the vacancies occurring in a particular year are filed by promotion of Scheduled Castes, the result would be that after some time the percentage of Scheduled Caste candidate in the 'a' Grade would reach upto 60% which would obviously be to the detriment of other persons who may be senior or meritorious but who cannot be promoted on account of reservation made in favour of Scheduled Castes. ;