V.G. Arun, J.
1. Petitioners are respondents 6 to 8 in O.A.No.411 of 2017 filed before the Central Administrative Tribunal, Ernakulam Bench, by the 6th respondent herein. For the sake of convenience, the parties and the exhibits are referred to as in the original application.
2. The applicant, a Deputy General Manager in the Naval Armament Depot, had approached the Tribunal alleging refusal by the authorities to correct his seniority and to place him above respondents 6 to 8 in the seniority list, in accordance with the marks obtained by him in the combined competitive Engineering Services Examination (ESE) conducted by the UPSC in the year 2003. Based on their performance in the ESE and the interview, the applicant and respondents 6 to 8 were offered Group-A post of Deputy Armament Supply Officer (DASO)-II in the Indian Navy/Ministry of Defence (Navy). Even though the applicant had obtained 673 marks out of 1200 in the Electrical Engineering Stream, he was placed in the reserve list consequent to an amendment to Rule No.13 of the ESE Rules, 2003. The applicant joined service on 8.9.2005. Respondents 6 to 8 had also qualified in the same examination, but in the Electronics and Mechanical Streams. The grievance of the applicant is that though the relative seniority among officers in the same batch selected through a common examination, ought to have been fixed on the basis of marks and consolidated ranking by the UPSC, the procedure was given a go by, resulting in the applicant being placed junior to respondents 6 to 8.
3. The applicant's request for correction of seniority list was consistently rejected by the Department and thereupon, the original application was filed, seeking to set aside the orders of rejection and to declare that the applicant is entitled to get his seniority reckoned vis-a-vis respondents 6 to 8, based on the marks obtained by him in the ESE, 2003 and to direct the official respondents to revise and re-fix his seniority and to place him at serial No.8, above the 5th respondent, in Annexure A2 seniority list.
4. The Tribunal, after consideration of the rival contentions, filtered down the issue to the question as to whether relative seniority amongst colleagues should be fixed on the basis of merit alone or stream wise or otherwise. The Tribunal found that the applicant had obtained 673 marks, whereas respondents 6 to 8 had secured only 652, 647 and 492 marks respectively. It was held that the main list and the reserve list had no relevance in view of the clarification in the additional reply statement filed by the respondents, wherein it was admitted that seniority had to be fixed on the basis of aggregate marks obtained by the applicant. On the question of delay, the Tribunal relied on the decision of the Apex Court in Collector, Land Acquisition, Anantnang and another v. M.S.T Katiji and others [AIR 1987 SC 1353], to hold that when there is merit, technicalities such as limitation should not come in the way of justice. It was held that no prejudice will be caused to respondents 6 to 8 by revising the seniority list, since their seniority had to be fixed after the applicant, as the relative marks obtained them was less than the applicant. Based on the said findings, the original application was allowed and the official respondents were directed to fix the applicant's seniority at the appropriate place by taking into account the aggregate marks obtained by the applicant and in terms of the clarification given by the UPSC.
5. In this original petition, the petitioners who were respondents 6 to 8 before the Tribunal, impugn the order of the Tribunal on the ground of delay, acquiescence, theory of sit back and also on the ground that the finding on merits rendered by the Tribunal is against the stipulations of the ESE, 2003.
6. Heard Sri.S.Radhakrishnan, learned Counsel for the petitioners (respondents 6 to 8), Sri.M.A.Shafik, learned Counsel for the 6th respondent (applicant), Sri.P.Vijayakumar, learned ASG and Sri.Thomas Mathew Nellimoottil, learned Standing Counsel for the UPSC.
7. The learned Counsel for respondents 6 to 8 contended that the Tribunal committed gross illegality in having entertained the original application, in spite of the inordinate delay and that the seniority of the respondents 6 to 8 stood settled by efflux of time. Precedents were cited to contend that settled seniority should not ordinarily be interfered with. It was pointed out that as far as the instant case is concerned, there was no extraordinary circumstance warranting interference at the behest of a person who had acquiesced to the seniority position by accepting his promotion. It was submitted that the first promotion of the applicant to the Senior Time Scale post of Manager, Naval Armament Depot, was on 1.04.2010 and his second promotion to Junior Administrative Grade (Non-functional) post of Deputy General Manager/Joint Director, was in April, 2015. The applicant had submitted objection against his seniority position only on 4th November, 2010 and in spite of the objection, had accepted his second promotion. In support of the contention that no relief could be granted to the applicant in view of the delay in agitating his grievance before the authorities and taking legal recourse and that settled seniority could not be upset at the behest of such an applicant, the learned Counsel for respondents 6 to 8 placed reliance on the following decisions:
Rajendra Prathap Singh Yadav and others v. State of Uttar Pradesh and others [(2011) 7 SCC 743], H.S.Vankani and others v. State of Gujarat and others [(2010) 4 SCC 301], Rabindra Nath v. Union of India [(1970) 1 SCC 84], Pavithran v. State of Kerala and others [2009 (4) KLT 20 (F.B.)], B.S. Bajwa and another v. State of Punjab [(1998) 2 SCC 523] and Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745].
8. The learned Counsel for the applicant contended that delay was not attributable to the applicant and on the other hand, was due to the lackadaisical manner in which his repeated representations were dealt with by the superior authorities. It was submitted that till 2010, the applicant was not aware of the fact that the seniority had not been drawn up in accordance with the marks obtained in the ESE, 2003. That on being alerted about the mistake in the seniority list, the applicant had submitted Annexure A6 representation dated 4.11.2010 seeking recasting of seniority and had followed up that representation with reminders dated 13.07.2011 and 18.01.2012. It was submitted that the manner in which the appointments were to be effected based on ESE, 2003 was evident from Ext.P2 Corrigendum dated 22.01.2004, in which it was stipulated that after interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks awarded to each candidate. It was submitted that a similar provision in the Civil Services Examination Rules, 2005 was the subject matter of challenge before the Honourable Supreme Court and final judgment upholding the provision was rendered by the Apex Court only on 7.5.2010 as per the decision in Union of India v. Ramesh Ram and others [(2010) 7 SCC 234]. According to the learned Counsel, Annexure A6 representation having been submitted immediately thereafter, the applicant cannot be held guilty of delay. On merits, it was contended that, Annexure A6, as well as the clarifications issued by the UPSC as per Annexures A10 and A12 and the reply submitted before the Tribunal, unequivocally supported the contention of the applicant that seniority ought to have been fixed on the basis of the marks obtained in ESE, 2003, in which event, the applicant ought to be placed senior to respondents 6 to 8. Reliance is placed on the decision of the Apex Court in Collector, Land Acquisition, Anantnang (supra) cited in the impugned order, in support of the contention that a meritorious matter shall not be thrown out on the technical reason of delay, thereby denying justice to a deserving person.
9. The Union of India and respondents 6 to 8 refuted the contentions and opposed the prayers, mainly alleging gross delay and laches on the part of the applicant in agitating his grievance, as also acquiescence to the seniority position, by accepting the promotions granted to him based on the disputed seniority list. In elaboration of this contention, it was submitted that the seniority list of officers circulated by the Cadre Controlling Authority every year from 2005 to 2010 had been confirmed and accepted by all the officers, including the applicant. The first promotion to the Senior Time Scale post of Manager of Naval Armament Depot was offered to the applicant on 1.04.2010 and readily accepted by him. Even after submission of representation in November, 2010 seeking re-fixation of seniority, the applicant accepted his second promotion to Junior Administrative Grade (Non-functional) post of Deputy General Manager/Joint Director. It was therefore contended that by not objecting to the seniority list from 2005 to 2010 and having accepted the promotions without demur, in spite of having raised objection against his seniority position, the applicant had acquiesced to his seniority and was therefore estopped from raising a challenge.
10. It was contended that settled seniority cannot be disturbed at the instance of a person who had been sleeping over his rights. It was contended that seniority of the applicant had been fixed in the Direct Entry Grade (Junior Time Scale) in accordance with the procedure prescribed under Rule 13 of the ESE Rules 2003, as amended by Ext. P2 Corrigendum Notification dated 22.1.2004. As regards the contention of the applicant that he had secured superior marks than respondents 6 to 8 in the ESE, 2003, it was contended that the all India rank/merit list is prepared based on the performance in various streams/categories. That, respondents 6 and 7 belonged to the Electronics and Communications stream and 8th respondent to the Mechanical stream, whereas the applicant belonged to the Electrical Engineering stream. All India rank obtained by respondents 6 and 7 was 22 and 26 in the Electronics and Communications stream and that of the 8th respondent, 39 in the Mechanical stream, whereas the applicant was not even assigned an all India rank for reason of his marks being below the qualifying standard prescribed for the Electrical Engineering stream. It was pointed out that candidates securing higher marks than the general qualifying standard fixed for their respective streams were placed in the combined main merit list and those with lesser marks in their respective streams were placed in the reserve list. The applicant having failed to acquire the qualifying standard stipulated for the Electrical Engineering stream was not included in the combined merit list, but was placed in the consolidated reserve list. It was contended that candidates in the merit list are placed above those appointed from the reserve list. It was further contended that inter se seniority of the candidates from the main and reserve lists was on the basis of the date of selection for appointment and that respondents 6 to 8 were selected in April, 2004 and appointment letters issued on 15.02.2005, whereas the applicant was selected for appointment from the reserve list only on 28.02.2005, almost one year after respondents 6 to 8 were selected, and the offer of appointment issued to him only on 10.08.2005.
11. In the reply statement filed on behalf of the Union of India, it was stated that the applicant had accepted the seniority list prepared at the time of the DPC's for promotion to Senior Time Scale and Junior Administrative Grade (Non Functional) and that the representation regarding recasting of his seniority was submitted by the applicant belatedly. That, the representation was considered and disposed of by Annexure A1 dated 23.05.2016. It was submitted that since the UPSC did not provide a consolidated seniority list of all engineering disciplines of ESE, 2003 the candidates from the reserve list was placed en bloc junior to the candidates from the main list.
12. In the reply statement submitted on behalf of the UPSC, it was pointed out that the Commission decides/fixes the inter se seniority of candidates on the basis of the principles laid down by the Department of Personnel and Training as per O.M.No.9/11/55-RPS dated 22.12.1959 and DOP&T's OM No.22011/7/86-Estt. (D) dated 03.07.1986, which stipulates that the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment on the recommendation of the UPSC or other selecting authorities. According to the UPSC, candidates are placed in the merit list based on their aggregate marks in the examination. It was submitted that the Commission, while publishing the result of ESE, 2003 had also maintained a consolidated reserve list of candidates of each category, in accordance with Rule (iv) and (v) of the ESE Rules and that, subsequent to the selection of candidates from the main list, the reserve list was operated on the basis of a proposal received from the Ministry of Railways, which was the Nodal Ministry for ESE. That, the candidates so recommended through the reserve list were allocated to various Ministries/Departments by the Nodal Ministriy ie, Ministry of Railways, in accordance with the preferences exercised by the candidates concerned. It was pointed out that the Commission had not received any proposal from INAS/Ministry of Defence on fixation of inter se seniority of the candidates recommended through ESE, 2003.
13. An additional reply was filed on behalf of the Ministry of Defence, stating that while forwarding the allocation of candidates selected through the ESE, 2003, the Railway Board, which was the Nodal Agency, had intimated only the all India rank secured by the candidates in the main list. All India rank secured by the candidates in the supplementary list was not intimated and the aggregate marks obtained by the candidates also was not intimated. That, in the absence of the aggregate marks secured by the candidates, those in the supplementary list were placed en-bloc junior to all the candidates from the main list. That, the same seniority position has been continuing unaltered for the last ten years and had been accepted by the applicant also. It was also submitted that the applicant's case was taken up with the Ministry of Defence, Department of Postal and Training and UPSC in the year 2016, and that the UPSC had furnished the rule position vide communication dated 7.09.2017 and the seniority list was not revised, since the original application was pending consideration before the Tribunal.
14. Before considering the issue on merits, the contention that the original application was liable to be dismissed on the ground of delay, sit back theory and acquiescence is to be dealt with, for which, the following dates assume relevance:
(i) The Engineering Service Examination was notified on 18.1.2003.
(ii) The written test of ESE 2003 was conducted in June,2003
(iii) The interview was held during March, 2004.
(iv) Ext. P2 Corrigendum was issued on 22.1.2004.
(v) The common main list of candidates from different categories, who had acquired the qualifying standard was published on 28.4.2004.
(vi) The notification of allotment of candidates from the main list was issued on 2.12.2004.
(vii) The consolidated reserve list of candidates in accordance with Ext.P2 was published on 28.2.2005
(viii) The allotment notification of consolidated reserve list candidates was issued on 19.4.2005.
(ix) Offer letter was issued to the applicant on 10.8.2005.
(x) Applicant joined service on 8.9.2005. (xi) Applicant promoted to Senior Time Scale post of Manger on 01.4.2010.
(xii) Initial objection against seniority and request for redetermination submitted on 4.11.2010.
(xiii) Applicant promoted to Junior administrative Grade (Non Functional ) post of Deputy General Manager on 1.4.2015.
(xiv) Rejection of applicant's representation under Annexure A1 dated 23.5.2016.
(xv) Original Application was filed in May, 2017.
15. A diligent candidate, confident about his performance in the selection process, would have made enquiries and raised objection, on finding that his name was not included in the main list. The applicant admits of having obtained Annexure A9, the merit order result of ESE,2003 containing the total mark scored by each candidate, under the RTI Act. If so, the applicant could have obtained also the information earlier and hence the contention that the applicant was kept in the dark regarding the marks secured by the candidates is liable to be rejected. It is an undisputed fact that the seniority list of officers of INAS was circulated every year between 2005; the year in which the applicant joined service, and 2010; the year in which objection against seniority was raised for the first time. Added to this is the fact that the applicant had accepted his promotion to the STS post of Manager on 1.4.2010, based on the unchallenged seniority and had even after objecting to the fixation of his seniority, accepted the second promotion to the JAG post of Deputy General Manager on 1.4.2015, without demur. The above acts of the applicant spells out culpable delay, patent laches and acquiescence, resulting in the applicant losing his entitlement for promotion based on revised seniority, especially since the right to be promoted is not a fundamental right, but only a civil right.
16. The decisions cited by the Counsel are to be analysed in the back drop of the aforementioned facts. In Rajendra Prathap Singh, the dispute was with regard to seniority granted to an officer in the Uttar Pradesh Police, reckoning his Short Service Commission in the Indian Army. By reckoning such service after a considerable period of fixation of seniority based on the date of joining in service, acceding to a belated request made, the settled seniority was overturned. The Supreme Court deprecated the practice of upsetting settled seniority based on belated claims and held seniority to be sacrosanct, which could be upset only if compelling circumstances warrant such action. The opinion of the Apex Court as contained in paragraph 45 of the judgment is as under:-
“45. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of a person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services.”
17. Vankani, dealt with an issue regarding inter se seniority between two batches of direct recruit Range Forest Officers belonging to the Subordinate Forest Services of the State of Gujarat. One batch consisted of graduates, who had to undergo training for only one year before appointment, whereas the other batch consisted of non- graduates, who had to undergo two years training. This resulted in the graduates selected later to the non-graduates completing their training earlier and being appointed to the service prior to the nongraduates. The issue was taken up by the non-graduates with the superior authorities, when the first batch of graduates were appointed in the year 1981. Their representations in this regard were repeatedly rejected until 1989, when acceding to the request of the non-graduates, the gradation list, which had attained finality, was recast by giving seniority to the non-graduates. This resulted in the graduates raising objection and later approaching the High Court, but without success. The matter was taken up before the Supreme Court and after detailed consideration, the Apex Court allowed the appeal finding reversal of the settled seniority to be illegal. Paragraph 38 of the Apex Court judgment which is contextually relevant is as follows:-
“38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority, etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instils confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money-making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further, it also consumes a lot of judicial time from the lowest court to the highest resulting in constant bitterness among the parties at the cost of sound administration affecting public interest.”
18. Bajwa was yet another case in which claim for seniority was belatedly raised again, based on short service commission in the Army. B.S.Bajwa and B.D.Gupta had joined the PWD (B&R) in the year 1971, prior to which they had a stint of short service commission. All throughout their position in the gradation list was shown with reference to their joining the department. It was only in the year 1984 that the claim for seniority was raised and writ petition filed for redressal of their grievance. The writ petition was allowed, upon which the officers whose seniority was at stake filed writ appeal. Though the writ appeal was allowed, certain benefits were granted to the writ petitioners. Both writ petitioners as well as the party respondents approached the Supreme Court and the Apex Court allowed the appeal filed by the respondent holding that the question of seniority should not be reopened after the lapse of a reasonable period, since it would result in disturbing the settled position, which is not justifiable.
19. In Rabindranath, the Honourable Supreme Court dilated on the sit back theory at paragraphs 33 and 34, in the following words:
“33. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. It was on this ground that this Court in Jaisinghani case observed that the order in that case would not affect Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income Tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone.
34. Learned counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time. But there is limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961 when the Government mentioned these facts in their letter, dated December 28, 1961.”
20. The Full Bench of this Court had occasion to consider the effect of the sit back theory in Pavithran. Reference to the Full Bench was necessitated in view of the apparent conflict between the decisions of this Court in W.A.No.423 of 1989 and Usha Devi v. State of Kerala [2002 (1) KLT 615], on the question as to whether a claim relating to seniority in the case of promotion to the post of Headmaster in an aided high school would become relevant only at the time of consideration of the claim for promotion, even if the incumbent had suffered adverse seniority position for several years. Answering the reference, the Full Bench, at paragraph 8 of the judgment, held as follows:-
“8. …......We notice that Exts.P2 and P3 orders were passed by competent statutory authorities. They could have granted the reliefs sought by the sixth respondent, but, they have declined to do that. The sixth respondent has not chosen to challenge those orders before the higher forum or this Court and as mentioned earlier, he allowed them to become final. Therefore, those orders are to be treated as valid. They cannot be ignored or treated as void ab initio and therefore, of no effect now. It is a well settled principle in service jurisprudence that, a person who enjoyed a seniority position for quite some time is entitled to sit back. The seniority position shall not, normally, be disturbed lightly. The said position is covered by several decisions of this Court and also the Apex Court, cited by the learned counsel for the appellant. It is not in the interest of administration or public interest to allow a person, who slept over his right, to rake up a stale claim, tinker with the seniority list and demoralise other members of the service.”
21. From the authoritative pronouncements of the Apex Court and the Full Bench of this Court, it is absolutely clear that settled seniority shall not be revised, except under exceptional circumstances and even in such cases, seniority shall not be upset at the instance of a person who had been sleeping over his rights. In the case of the applicant, he did not challenge the non-inclusion of his name in the consolidated main list and even after his appointment, the applicant did not challenge the seniority position for five years, in spite of the list being circulated every year and, on the other hand, had accepted his promotion based on the unchallenged seniority. Moreover, even after raising objection against the seniority position, the applicant had accepted his second promotion without demur. It can therefore be unequivocally held that the applicant stood dis-entitled for any relief due to delay, laches and acquiescence. Therefore, the Tribunal had erred in allowing the original application with a direction to revise the seniority list.
22. In his attempt to explain the delay, the applicant had set up a case that provisions similar to Ext.P2 contained in the Civil Services Examination Rules, 2005 was under challenge before the Honourable Supreme Court and that a final decision was rendered upholding the Rules as per decision dated 7.05.2010 in Union of India v. Ramesh Ram (supra). That, the applicant had waited for the final pronouncement on the challenge and had immediately thereafter submitted his objection to the seniority list. We are unable to accept this explanation, for the simple reason that the challenge in Ramesh Ram was not with respect to the ESE Rules, 2003 and the decision therein had nothing to do with the applicant's claim for seniority. What we find is that on the decision coming to the notice of the applicant, he experimented with the OA, to see if it could also be applied in his case.
23. The decision of the Apex Court in Collector, Land Acquisition, Anantnang (supra), cited by the learned Counsel for the applicant and relied on by the Tribunal, was rendered in the context of an appeal preferred by the State of Jammu and Kashmir from a judgment enhancing compensation in respect of acquisition of lands. The appeal preferred before the High Court had been dismissed as time barred, being four days beyond the time prescribed. It was challenging the said decision that the appeal was preferred before the Honourable Supreme Court. The question considered in the appeal was as to whether the same standard in applying “sufficient cause” test, under Section 5 of the Limitation Act should be adopted with respect to all the litigants, including the State. Answering the question, it was held that the fact that it was the “State” which was seeking condonation and not a private party was irrelevant. Based on the facts of that case, it was held that sufficient cause existed for condoning the delay. In that context, it was observed that in the course of interpretation of the expression “sufficient cause”, the court should strive to do even handed justice on merits in preference to the approach which scuttles a decision on merits. In our considered opinion, the decision in Collector, Land Acquisition, Anantnang (supra) cannot be relied on to get over the inordinate delay on the part of the applicant in agitating his grievance.
24. The other question to be considered is whether the Tribunal could have entertained the original application in view of the limitation prescribed under Section 21 of the Administrative Tribunals Act. Even according to the applicant he had submitted the first representation, requesting for assigning him the correct seniority on 4.11.2010. Section 21 (1)(b) of the Administrative Tribunals Act prevent the Tribunal from admitting an application when it is filed after a period of 18 months (6+12) from the date of submission of the representation. Of course, sub-section (3) of Section 21 empowers the Tribunal to admit an application preferred after the prescribed period if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within time. But as far as the instant case is concerned, no such exercise seems to have been undertaken by the applicant, in spite of the original application having been filed more than six years after submission of the representation. The Tribunal therefore definitely erred in admitting and entertaining the belated original application and rendering a decision on merits. For this reason also, the impugned order is unsustainable.
25. Coming to the contention on merits, it is the specific case of the applicant that after amendment of the ESE Rules, 2003 by the Corrigendum dated 22.01.2004, appointments could have been effected only on the basis of merit as disclosed by the aggregate marks finally awarded to each candidate. On the other hand, the learned Counsel for the petitioner would submit that Ext.P2 Corrigendum specifically provided for fixing a qualifying mark (general qualifying standard) and for declaration of a consolidated reserve list of candidates, which would include candidates from the general and reserve category, ranking in order of merit below the last recommended candidate under each category. The applicant not having acquired the general qualifying standard prescribed for his category, was placed in the consolidated reserve list of candidates and was selected and appointed to a vacancy which remained unfilled after the petitioners and other candidates in the merit list were selected and appointed. The relevant portion of the Corrigendum is extracted hereunder:-
“No. 2002/E(GR)1/18/2.-In the Ministry of Railways (Railway Board) notification dated 18th January, 2003 published in the Gazette of India, Extraordinary, notifying the rules for the Engineering Services Examination, 2003, Rule 13 and Rule 14 may be substituted by the following:-
13 (i) After interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate. Thereafter, the Commission shall, for the purpose of recommending candidates against unreserved vacancies, fix a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up on the basis of the examination. For the purpose of recommending reserved category candidates belonging to the Scheduled Castes the Scheduled Tribes and the Other Backward Classes against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the examination:
Provided that the candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission shall not be recommended against the vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes.
(ii) While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Govt. if by this process they get a service of higher choice in the order of their preference.
(iii) The Commission may further lower the qualifying standards to take care of any shortfall of candidates for appointment against unreserved vacancies and any surplus of candidates against reserved vacancies arising out of the provisions of this rule, the Commission may make the recommendation in the manner prescribed in sub-rule (iv) and (v).
(iv) While recommending the candidates, the Commission shall, in the first instance, take into account the total number of vacancies in all categories. This total number of recommended candidates shall be reduced by the number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes who acquire the merit at or above the fixed general qualifying standard without availing themselves of any concession or relaxation in the eligibility or selection criteria in terms of the proviso to sub-rule (i). Along with this list of recommended candidates, the Commission shall also declare a consolidated reserve list of candidates which will include candidates from general and reserved categories ranking in order of merit b
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elow the last recommended candidate under each category. The number of candidates in each of these categories will be equal to the number of reserved category candidates who were included in the first list without availing of any relaxation or concession in eligibility or selection criteria as per proviso to sub-rule (i). Amongst the reserved categories, the number of candidates from each of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes categories in the reserve list will be equal to the respective number of vacancies reduced initially in each category. (v) The candidates recommended in terms of the provisions of sub-rule (iv), shall be allocated by the Government to the services and where certain vacancies still remain to be filled up, the Government may forward a requisition to the Commission requiring it to recommend, in order of merit, from the reserve list, the same number of candidates as requisitioned for the purpose of filling up the unfilled vacancies in each category.” 26. A careful perusal of the provisions indicate that Rule 13(i) provides for fixation of the qualifying mark for the purpose of recommending candidates against unreserved vacancies, with reference to the number of unreserved vacancies to be filled up on the basis of the examination. The rule also provides for relaxation of the general qualifying standard for the purpose of recommending reserve category candidates, with reference to the number of reserved vacancies to be filled up in each of the categories on the basis of the examination. The proviso to Rule 13(i) stipulates that the Commission shall not recommend reserved category candidates, who have not availed any of the concessions or relaxations in the eligibility or the selection criteria and who, after taking into account the general qualifying standard, are found fit for recommendation against reserved category vacancies. Rule 13(iii) empowers the Commission to lower the qualifying standards to take care of shortfall of candidates for appointment against unreserved vacancies. The recommendation in this regard is to be made by the Commission in the manner prescribed in Sub-rule (iv) and (v). Rule 13(iv) provides for declaration of a consolidated reserve list of candidates, including candidates for general and reserve categories, ranking in order of merit below the last recommended candidates under each category. The number of candidates in each of those categories was to be equal to the number of reserved category candidates who were included in the first list. As per Rule 13(v), candidates from the consolidated reserve list provided under sub-rule (iv) shall be allocated by the Government to the services and where certain vacancies still remained to be filled up, the Government may forward a requisition to the Commission to recommend from the reserve list for the purpose of filling up the unfilled vacancies in each category. Therefore, having been placed in the consolidated reserve list pertaining to his category, the applicant cannot contend that, based on aggregate marks, he ought to be placed senior to respondents 6 to 8. As rightly pointed out by the learned Counsel for the petitioners, in the absence of a consolidated reserve list constituted in terms of Ext.P2, the applicant would not have been considered for selection and appointment. We find that, in the face of the specific provisions contained in Rule 13 of the ESE, Rules, 2003, even the subsequent clarification by the UPSC that persons obtaining more aggregate marks in the ESE are ranked senior, as also the belated acceptance of that clarification by the Union of India, as stated in its additional reply statement filed before the Tribunal, will not lend credence to the contention of the applicant. In the result, for the reasons above, on all grounds raised the original petition is allowed, by setting aside the impugned order of the Tribunal. No order as to costs.