Central Administrative Tribunal - Ahmedabad
Paschim Railway Karmachari Parisad vs M/O Railways on 11 March, 2022
(CAT/AHMEDABAD BENCH OA NO.493/2012) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.493/2012.
Dated this the day of March, 2022.
Reserved on: 15.09.2021
Pronounced on: 11.03.2022
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Dr. A.K. Dubey, Member (A)
1. Paschim Railway Karmachari Parishad
Ahmedabad Division
(Through its Divisional Secretary Shri Daya Shankar Ojha
Address for Communication: C/o Shri Sunil Kant, Joint Secretary,
(PRKP), AT Sanand Railway Station, Post: Nidhrad 382 110,
District: Ahmedabad, Pin Code: 382 110.
2. Sunil Kant,
Age: 41 years (DoB being 01.03.1977)
Son of Shri Lal Das Singh
Address for Communication: Sanand Railway Station
Post: Nidhard, Ahmedabad, Pin-382 110.
...Applicants
(By Advocate Mr. M. S. Rao)
Vs
1. Union of India,
(to be represented through the Special Secretary
to the Gov. of India & the Ex Officio Chairman, Railway Board,
Ministry of Railways, Rail Bhavan, New Delhi- 110 001.
2. Western Railway
(to be represented through its General Manager, W.Rly, Zone,
Office of the General Manager, W. Rly. Hqrs. Office,
Church Gate, Mumbai 400 020.
3. The Divisional Railway Manager,
Ahmedabad Division, Western Railway Zone, O/o. DRM, ADI,
Near Chamunda Mata Bridge, Naroda Road, Post: Saijpur Bogha,
Ahmedabad - 382 345.
4. Shri Shivdutt Singh
(presently serving as Senior Permanent Way Supervisor
(CAT/AHMEDABAD BENCH OA NO.493/2012) 2
Unit-2, KKF Yard, under Senior Section Supervisor (P.Way)
5. Shri Ranjeet Kumar Das
(Presently serving as Senior Permanent Way Supervisor
Unit-I, Sabarmati, under Senior Section Supervisor (P.Way),
(Board Gauge), Sabarmati)
6. Shri Suresh Chand Meena
Presently serving as Senior Permanent Way Supervisor (W/C)
Sabarmati (W/C), under Senior Section Supervisor (P.Way),
(Broad Gauge), Sabarmati).
7. Shri Indrajeet Kumar Singh
(Presently serving as Senior Permanent Way supervisor, JKS,
Under Senior Section Supervisor (P.Way), KTRO)
8. Shri Wibek Anand Kumar
(Presently serving as Senior Permanent Way Supervisor,
Unit-6 (metre Gauge), KHD, under Senior Section Supervisor
(P.Way), (Broad Gauge), SBI,)
9. Shri Giriraj Prasad Meena
(Presently serving as Senior Permanent Way Supervisor,
Unit-6 (metre Gauge, KHD, under Senior Section Supervisor
(P.Way), (Broad Gauge), Sabarmati)
10. Shri Budhsingh Koli
(Presently serving as Senior Permanent Way Supervisor,
Unit-10/11, DKW, under Senior Section Supervisor (P.Way), RDHP)
11. Shri Lokesh Kumar JEF
(Presently serving as Senior Permanent Way Supervisor,
AAR, under Senior Section Supervisor (P.Way), AAR)
12. Shri Danwar Ram B.,
(Presently serving as Senior Permanent Way Supervisor,
KUDA, under Senior Section Supervisor (P.Way), DHG)
13. Shri Shasikan Ranjan S.,
(Presently serving as Senior Permanent Way Supervisor,
DHG, under Senior Section Supervisor (P.Way),DHG)
14. Shri Alikana Ramarao T.,
(Presently serving as Senior Permanent Way Supervisor,
(CAT/AHMEDABAD BENCH OA NO.493/2012) 3
ADI, under Senior Section Supervisor (P.Way), ADI)
15. Shri Vikash Kumar
(Presently serving as Senior Permanent Way Supervisor,
SBI, W/C., under Senior Section Supervisor (P.Way),
(Broad Gauge) SBI)
16. Shri Virendra Kumar B.,
(Presently serving as Senior Permanent Way Supervisor,
VG) Unit-6, (Metre Gauge), KHD,
under Senior Section Supervisor (P.Way), VG)
17. Shri Bal Krishna Paswan
(Presently serving as Senior Permanent Way Supervisor,
VDN, under Senior Section Supervisor (P.Way), M-MSH)
18. Shri Rajesh Choudhary,
(Presently serving as Senior Permanent Way Supervisor,
ADI, W/C, under Senior Section Supervisor (P.Way), ADI.
19. Shri Raghu Nath Das B.,
(Presently serving as Senior Permanent Way Supervisor, Unit-23/24
GM., under Senior Section Supervisor (P.Way), AAR)
20. Shri Anil Kumar Sarkar
(Presently serving as Senior Permanent Way Supervisor, Unit34/35,
SIA, under Senior Section Supervisor (P.Way), BCO)
21. Shri Madan Lal
(Presently serving as Senior Permanent Way Supervisor,
VJF, under Senior Section Supervisor (P.Way), KLL)
22. Shri Santosh Kumar S.,
(Presently serving as Senior Permanent Way Supervisor,
UMN, under Senior Section Supervisor (P.Way), KLL)
23. Shri Ram Surendra R.,
(Presently serving as Senior Permanent Way Supervisor,
LNO, under Senior Section Supervisor (P.Way), KLL)
24. Shri Vikram Singh K
(Presently serving as Senior Permanent Way Supervisor, Unit-8/9
JSI, under Senior Section Supervisor (P.Way), PNU)
(CAT/AHMEDABAD BENCH OA NO.493/2012) 4
25. Shri Jai Prakash Ram
(Presently serving as Senior Permanent Way Supervisor,
SIO (HO), under Senior Section Supervisor (P.Way), BCD)
26. Sanjay Kumar D
(Presently serving as Senior Permanent Way Supervisor,
KHD (BG), under Senior Section Supervisor (P.Way), (Broad Gauge), SBI)
27. Avinash Kumar Sharma
(Presently serving as Senior Permanent Way Supervisor,
ADI, under Senior Section Supervisor (P.Way), ADI)
28. Mubarak Alam Mohiuddin,
(Presently serving as Senior Permanent Way Supervisor,W/C,
under Senior Section Supervisor (P.Way), TR, ADI)
29. Jadav Sudhir Kumar Piyushbhai
(Presently serving as Senior Permanent Way Supervisor,
ADI, W/C, under Senior Section Supervisor (P.Way), ADI)
All C/o. The Divisional Railway Manager,
Ahmedabad Division, Western Railway zone, O/o.DRM, ADI,
Near Chamunda Bridge, Opp. New Swadeshi Mills, Naroda Road,
Post: Saijpur Bogha, Ahmedabad 382 345.
...Respondents
(By Advocate Mr. M J Patel R1 to R3,
Mr. M. S. Trivedi R- 7, 8, 21, 24, 26
Mr. R. N. Singh 1 to 3
Mr. Bhaskar Tanna R-4 to 6, 9 to 20, 22, 23, 25, 27 to 29)
ORDER
PER: Hon'ble Shri Jayesh V Bhairavia, Member (J)
1. Aggrieved and dissatisfied by the selection and appointment of private respondents herein to the promotional post of Sr. PWS under 25% LDCE quota vide order dated 19.07.2010, the Applicant no.1, i.e., Paschim Railway Karmachari Parishad, Ahmedabad Division through its secretary along with one Shri Sunil Kant who is working as Gangman in ADI Division, Ahmedabad, jointly filed the present OA u/s 19 of AT Act, seeking following reliefs:-
"A. hold and declare, as arbitrary, unreasonable, illegal, fraudulent and malicious, that decision of the official respondents herein to (CAT/AHMEDABAD BENCH OA NO.493/2012) 5
(i) permit the private respondents no.4 to 29 herein to appear in the selection, (ii) declare them as qualified in the selection test &place them in the provisional panel and (iii) promote & post the aforesaid private respondents herein as Senior Permanent Way Supervisor in Ahmedabad Division in pursuance of a selection process initiated by the Ahmedabad Divisional Authorities with the issuance of a Notification bearing No. EE/839/(I)/(P.W.Mistry) dated 09.09.2008, in as much as the aforesaid private respondents herein were not eligible at all as on the date of the issuance of the said notification dated 09.09.2008 on the ground that they were not satisfying the eligibility criteria as prescribed in the recruitment rules for the post of Sr. Permanent Way Supervisor;
B. quash and set aside, as arbitrary, unreasonable, illegal, fraudulent and malicious, the impugned the (i) Notification bearing EE/839/1(PWS) dated 29.04.2009 (ANNEXURE-A/1),
(ii) Notification dated 05.06.2009, (ANNEXURE-A/2)(iii) Notification No.EE/839/1(PWS) dated 14.07.2009(ANNEXURE- A/3) (iv) Office Order No.EE/165/09 dated 28.08.2009 (ANNEXURE-A/4)and (v)Memorandum bearing No. O.O.No.EEE/212/10 dated 19.7.2010 (ANNEXURE-A/5), in so faras the aforesaid 3 documents seek to (i) permit to appear the private respondents herein in the selection, (ii) select and (ii) promote & post the private respondents herein as Senior Permanent Way Supervisors in Ahmedabad Division in pursuance of a selection process initiated by the Ahmedabad Divisional Authorities with the issuance of a Notification bearing No.EE/839/(I)/(P.W.Mistry) dated 9.9.2008;
C. issue appropriate directions to the official respondents no.1 to herein commanding them to forthwith initiate and hold selection under 25% LDCE quota, strictly in accordance with the recruitment rules, to fill up those posts in the cadre of Senior Permanent Way Supervisor that would be caused vacant in pursuance of the execution and implementation of the order of this Hon'ble Tribunal granting the aforesaid reliefs (A) & (B) hereinabove;
D. Grant such other and further reliefs as may be deemed fit and proper;
2. It emerges from the records that earlier this Tribunal vide order dated 10.02.2015 had allowed the present OA. Aggrieved by the said order, the private respondents approached the Hon'ble High Court of Gujarat by way of filing Writ Petition bearing SCA No.3171/2015, wherein vide interim order dated 25.02.2015, the Hon'ble High Court stayed the impugned order dated 10.02.2015, passed by this Tribunal. Thereafter, the said interim relief was vacated by the Hon'ble High Court vide order dated 07.05.2015. Aggrieved by the said order dated 07.05.2015, the petitioner (i.e., private (CAT/AHMEDABAD BENCH OA NO.493/2012) 6 respondents herein) approached the Hon'ble Apex Court by way of filing SLP (C) No. 17331/2015 and the Hon'ble Apex Court vide order dated 10.07.2015 issued notice and in the interim directed the parties to maintain status quo as it existed on that day. Thereafter, the said SLP came to be dismissed by order dated 25.08.2017. Subsequently, the Hon'ble High Court had disposed of the said pending SCA by quashing and setting aside the impugned order dated 10.02.2015 and remanded the matter back to this Tribunal with a direction to consider the said OA No.493/2012 afresh in accordance with law and on its own merit vide order dated 17.04.2018.
It is appropriate to reproduce the operative portion of the observations of Hon'ble High Court as contained in Para 4 of its order dated 17.04.2018, which reads as under:-
Para 4:
"In view of the above broad consensus between the learned Counsel appearing on behalf of the respective parties, recorded hereinabove, and without further entering into the merits of the case and/or without expressing anything on merits in favour of either parties, impugned judgment and order dated 10.02.2015 passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in O.A.No.493/2012 is hereby quashed and set aside so far as quashing and setting aside the selection of the original respondent Nos.4 to 26 is concerned and the matter is remanded to the learned Tribunal to consider the O.A.No.493/ 2012 afresh in accordance with law and on its own merits. However, it is specifically observed and clarified that the remand shall be with respect to challenging the selection of the original private respondent Nos.4 to 26 only. As the matter is very old and the question is with respect to recruitment, it is hoped that the learned Tribunal shall give priority to the present application on remand and the learned Tribunal to decide and dispose of the O.A. No.493/2012 afresh in accordance with law and on its own merits as early as possible and preferably on or before 31.12.2018. It is further observed and directed that till the O.A.No.493/2012 is finally decided and disposed of by the learned Tribunal, further show-cause notices issued by the Railway Department to the original private respondent nos.4 to 26 shall be stayed, even as per the earlier statement made by the learned Counsel appearing on behalf of the Railway Administration. Even it will be in the fitness of things to not to proceed further with the show-cause notices as the result of O.A. No.493/2012 would have a direct bearing on the decision of show- cause notices which issued. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs."
3. In view of aforesaid direction, the OA was taken up for hearing afresh on 06.06.2018. In the mean time, the applicants had filed MA No. 284/2018 for (CAT/AHMEDABAD BENCH OA NO.493/2012) 7 amendment in the OA. The respondents have filed their reply in the said MA and objected the proposed amendment as also raised objection with respect to delay caused in filing such amendment. Subsequently, considering the submission of the parties in the MA No. 284/2018 for proposed amendment along with MA No. 285/2018 (for condonation of delay) were disposed of by this Tribunal as the said MAs became infructuous vide order dated 25.07.2019.
Thereafter, the case was adjourned from time to time on the request of counsel for the parties. In the mean time the registry of this Tribunal received letter dated 27.08.2019 written by Shri Sunil Kamliwal, Divisional Secretary of Paschim Railway Karmachari Parishad i.e., applicant no.1 union/Association whereby it was informed that the applicant no.1 union members had decided not to proceed/pursue further the present OA and requested this Tribunal to allow them to withdraw their name as applicant no.1 from the OA. Thereafter, on 30.06.2020 while matter was taken up for final hearing through video conferencing, Mr. M. S. Rao, counsel for the applicants placed on record another letter dated 28.02.2020, written by the same office bearer of applicant no.1 union addressing to this Tribunal and thereby, it was requested for allowing them to withdraw their earlier letter dated 27.08.2019. Since there was no clarity about the stand of applicant no.1, directions were issued by this Tribunal vide order dated 30.06.2020 to applicant no. 1 union to file their affidavit and clear their stand whether they intended to pursue this OA? Thereafter, the applicant no.1 filed an additional affidavit on 15.07.2020, wherein it was reiterated that applicant no.1 union was keen to pursue the OA. Subsequently, the case was adjourned time and again due to Covid-19 pandemic and finally taken up for final hearing on 22.09.2021.
4. The applicant no.1 (i.e., unrecognized Railway Employees Union) contended that their union/association is duly registered under the Trade Unions Act and the present OA had been filed in their representative capacity challenging the legality of the decisions of the official respondents more particularly the decision whereby, the private respondents were allowed to participate in the Limited Departmental Competitive Examination (herein (CAT/AHMEDABAD BENCH OA NO.493/2012) 8 after referred as LDCE) for filling up the vacancies of Sr. PWS under 25% LDCE quota. Further, on declaration of the result of said written test (LDCE) and placed the names of successful candidates (i.e., private respondents herein) in the select panel though said private respondents did not possess the requisite qualification/eligibility of 3 years of regular service for their promotion from Group-D to Group-C post. Hence, this OA.
5. The brief facts of the case on hand are as under:-
5.1 The respondent no.3 i.e., the O/o DRM (E) ADI vide notification dated 09.09.2008, invited applications from the working Gangman, key man, Gatekeeper, Trollyman and Mate having qualification of Matriculation/High School with three years of regular service for the process to fill up the post of Sr. PWS in the scale Rs. 5000/- 8000/-
(RSRP) by way of Limited Departmental Competitive Examination (25% LDCE quota). Further, it was stated therein that vacancies were to be filled up by candidates having qualification 10+2 with Science and Maths first, and shortfall, if any, against this quota existed then the candidates having minimum qualification of Matriculation/High Scholl would be called for further test and thereafter, the remaining shortfall if any, would be diverted to direct recruitment. It was directed in the said notification that wide publicity be given so that maximum number of employees could apply for the LDCE (Annexure A/8).
5.2 The respondent no. 3 i.e., O/o. the DRM (E) ADI, issued notification No. EE/839/1(PWS) dated 29.04.2009 whereby total 58 vacancies (UR-43, SC-10, & ST-5) for the post of Sr. PWS were declared and the list of eligible candidates for written test for LDCE quota was also notified which included the names of private respondents herein (Annexure A/1).
5.3 In the mean time, the respondent no. 3 had issued corrigendum dated 07.05.2009, whereby all those reserve category candidates working in feeder cadre having 1 year regular service were allowed to apply for the post Sr. PWS.
(CAT/AHMEDABAD BENCH OA NO.493/2012) 95.4 Vide notification dated 05.06.2009 (Annexure A/2), the respondent no.3 in continuation of notification dated 09.09.2008, 29.04.2009, 07.05.2009and 27.05.2009 notified final eligibility list of total 64 employees including some additional names of employees for LDCE quota (Annexure A/2).
5.5 The respondent no. 3 published the list of total 59 candidates who had qualified the written test vide result dated 14.07.2009 (Annexure A/3). Thereafter, on 28.08.2009, the respondent no. 3 notified list of 49 candidates who were considered suitable and placed them on provisional panel for promotion to the post Sr. PWS (Annexure A/4). 5.6 Thereafter, vide notification dated 19.07.2010 total 61 persons (including 49 persons recommended by DPC (LDC quota) and 12 Direct Recruits) were promoted / appointed to the post of Sr. PWS (Annexure A/5).
5.7 The Members of Applicant No.1's union in the month of September 2010, came to know that the private respondent no.4 to 26 had joined the Railway Service as Gangmen only in the year 2007 as like the members of the applicant No.1's union employee. However, said private respondents were allowed to participate in LDCE quota for the post of Sr. PWS. Therefore, the members of applicant No.1's union sought information under RTI about the eligibility of private respondent no.4 to 26. On receipt of information supplied vide letter dated 23.02.2012 under RTI, the applicant no.1 came to know that the private respondents had not completed requisite three years of experience to be eligible for the post of Sr. PWS (Annexure A/10). 5.8 Therefore, the applicant no.1 Parishad (Employees Union) vide letter dated 15.07.2012 submitted their demand under Industrial Dispute Act before the General Manager, WR, whereby it was claimed that applicant no.2 i.e., Shri Sunil Kant working as Track-Man at Sanand had applied under LDCE quota for the post of Sr. PWS, but his application was not considered, since he did not possess experience of 3 years of regular service whereas other employees who had not completed 3 years of regular service were considered for LDCE (CAT/AHMEDABAD BENCH OA NO.493/2012) 10 quota and therefore, said Shri Sunil Kant also be promoted as Sr. PWS. Further, it was disputed that said Shri Sunil Kant was not paid his IOD payment. It was also demanded that the appeal filed by said Shri Sunil Kant against the penalty imposed upon him (NIP) had not been forwarded before the Appellate Authority and therefore, the said Appeal be forwarded immediately and action may be taken against the earring Officer (Annexure A/11).
5.9 In response to the notice issued by Assistant Labour Commissioner (Central), Ahmedabad (ALC), the O/o respondent No.3 vide letter dated 15.10.2012 replied that except SC/ST candidates, the employees who had completed three years of regular service were declared as eligible for LDCE quota. Further, it was stated by the respondents that payment for IOD of said Shri Sunil Kant, had already been made in his regular salary of August 2012 and his departmental appeal was already disposed of by the Appellate authority vide order dated 07.09.2012, which was acknowledged by the employee (i.e., Shri Sunil Kant) on 13.09.2012. Therefore, it was requested by the respondents to treat the case as closed since all the demands had been complied with.
5.10 It is contended that the applicant no.1 union came to know that the respondent no.3 vide its RTI reply dated 26.10.2012 (Annexure A/13) had supplied the information to some employees that in the case of SC/ST candidates who had rendered one year or more regular service were allowed to participate in the said LDCE. It is further contended that in the month of November 2012, the applicant no.1 Union also came to know that in the matter of recruitment of Vehicle Drivers, the O/o. Railway / ADI had issued show cause notice dated 27.09.2012 to SC/ST candidates as to why their names should not be deleted from the select panel of Vehicle Driver since they had not completed eligibility criteria of three years of regular service in Group-D. On challenge to the said show cause notice by the affected employees before this Tribunal, the said applications (OAs) were disposed of by this Tribunal vide order dated 10.09.2012, with a direction to the (CAT/AHMEDABAD BENCH OA NO.493/2012) 11 effect that before deleting their names, the said official required to be given due opportunity of hearing. Subsequently, the said show cause notice and case were closed by the respondents.
5.11 Further, in Para 6.09 of the OA, it is contended that in the aforesaid facts the Applicant Union/Association has no other efficacious alternate remedy, and hence, the applicant no.1's union has filed the present OA on 05.11.2012 along with MA No. 338/2012 for joint application whereby one Shri Sunil Kant has been sought to be joined as applicant no.2. The applicants in the present OA, mainly challenged the (i) notification dated 29.04.2009 (Annexure A/1), (ii) notification dated 05.06.2009 (Annexure A/2), (iii) notification dated 14.07.2009 (Annexure A/3), (iv) office order dated 28.08.2009 (Annexure A/4) and (v) Memorandum dated 19.07.2010 (Annexure A/5) and has sought relief to quash and set aside the aforesaid notification issued by the official respondents.
6. Mr. M. S. Rao learned counsel for the applicants mainly submitted as under:-
6.1 Chapter I of IREM, Vol.I stipulates the Rules for recruitment and training of Group C and D and Workshop staff, para 143 (i) relates to recruitment of erstwhile post of Permanent Way Mistry, which was later re-designated as Permanent Way Supervisors. The recruitment rules specify that 25% vacancies will be filled up through LDCE from amongst Working Gangman and Keyman who have qualification of 10 + 2 with science and maths and have put in a minimum of three years regular service. Further, referring to circular dated 1.1.2003 he submits that along with the requisite educational qualification of 10 + 2 with science and maths a minimum of three years regular service was also required and same had been again reiterated in the said circular. Thereafter, vide circular RBE 45/07 dated 22.3.2007, the category of Sr. Permanent Way Supervisor (referred herein as Sr.PWS) in the scale of 5000-8000 was introduced and by the subsequent circular No. RBE 94/2007 dated 3.7.2007, it (CAT/AHMEDABAD BENCH OA NO.493/2012) 12 was informed that the existing qualification for recruitment and promotion as were applicable to the erstwhile category of supervisors would continue to apply for the newly created category of Sr. P.W. Supervisor. Accordingly, vide notification dated 9.9.2008 (Annexure A-8) applications were invited for the LDCE to fill up the post of Sr. Permanent Way Supervisor. Pursuant to the said notification some of members of the applicants union had submitted their application but their applications were returned by the office of respondent No.3 to respective units with an observation that they were not eligible since they did not possess the requisite regular experience of three years in the cadre in which they were serving, whereas, the official respondents had allowed other candidates who had not completed three years of regular service.
6.2 The applicants had also placed reliance on the seniority list of Group-
D staff, who were declared qualified in the written test and submitted that the persons from serial no.38 to 60 were appointed only after 23.4.2007 and therefore did not have required eligibility. In-spite of the same they were declared qualified to appear for the written test. They also figured in the list of eligible candidates at Annexure A-1 and A-3. The final panel following selection procedure at Annexure A-4 also contains name of some of these candidates who did not have the minimum prescribed experience. Therefore, the selection of these candidates cannot be sustained and is required to be quashed. 6.3 The applicants further submitted that a close scrutiny of the minutes of the DPC held on 18.08.2009 revealed that the DPC did not take into account any of the eligibility criteria while recommending the case of the private respondents for their promotion as Sr. PW Supervisor. Therefore, the entire selection process could have been influenced by external considerations. Therefore, the official respondents should initiate fresh selection under the 25% LDCE quota strictly in accordance with the Recruitment Rules, the applicants claim.
(CAT/AHMEDABAD BENCH OA NO.493/2012) 137. On the other hand, official respondents No.1 to 3 herein filed their counter reply dated 08.04.2013 and denied the contentions of the applicants. Wherein, it was contended that for filling up the vacancies under 25% LDCE quota for the post of Sr. PWS, applications were initially invited vide notification dated 09.09.2008. Further, it has been stated that as per HQ letter No. P.S. No.89/90 dated 15/28.05.1990 if suitable staff with 3 years' service were not available then such promotion to semi-skilled category could be made even from staff who had put in less than 3 years of service, subject to minimum regular service of one year (Annexure-R/1) and as per the letter dated 22.11.2004 issued by GM (E) CCG, only the SC/ST employees who had rendered 1 year and above service as Gangman, Keyman, trollyman, Gate Keeper, Mate were allowed to submit their application to participate in the said proposed LDCE. In this regard, the O/o. respondent no.3 had issued corrigendum dated 07.05.2009 before the said LDCE. The said corrigendum was circulated to all the concerned units.
7.1 Thereafter, the final eligibility list of 64 eligible candidates was notified for written test vide notification dated 05.06.2009 and same was circulated in all the concerned units as well as to the O/o recognized Railway Employees Union. Accordingly, the LDCE was held on 27.06.2009 and the result of the said written examination was notified on 14.07.2009 wherein total 59 candidates were found qualified the said test.
7.2 In the said LDCE, no relaxation was offered or given to anyone including the SC/ST candidates in the marks to be awarded in professional ability and in the aggregate marks i.e., 60% marks applicable to the selection post. Thereafter, on scrutiny of the service sheet/DAR/B&C total 49 employees/candidates were found suitable in the selection procedure and their names were placed on provisional panel dated 28.08.2009 which includes the name of private respondents herein.
7.3 It is contended by the official respondents that on successful completion of departmental training the competent authority sanctioned the appointment of all the successful candidates i.e., (CAT/AHMEDABAD BENCH OA NO.493/2012) 14 LDCE candidates as well the direct recruits and by way of common appointment order dated 19.07.2010 appointments/posting were given to said candidates including the private respondents herein. 7.4 Learned counsel for the respondents submits that the official respondents have followed the just and proper selection procedure for the 25% LDCE quota and appointed the qualified and suitable candidates.
7.5 Further, by referring the averments made in Para 6.03 of the present OA, the learned counsel for the official respondents submits that infact, the applicants had contended in the said Para that "......the members of the union including the applicant no.2 had applied for the said LDCE pursuant to communication dated 09.09.2008. It was not clear to the members of the union as to whether even those candidates having 10+2 with science and maths qualification but without 3 years of regular experience could also take part in aforesaid selection process and therefore, they had submitted their application." Further, in the said para, it was also admitted by the applicants that "their application were returned by the O/o respondent no.3 to the respective units with an observation that they were not eligible since they did not possess the requisite 3 years regular experience in the cadre in which they were serving." 7.6 In this regard, it is further submitted that applications of the candidates who did not fall under the category for whom the relaxation in eligibility was prescribed, accordingly the application of no.2 was not considered as eligible for the LDCE. It is also contended by the official respondents that neither any objections nor any application in this regard was filed by the applicants at the relevant time. The applicants failed to place on record any details about left out SC/ST candidates in the said selection process. Therefore, the applicants are not entitled for any relief as sought for in this OA.
8. Ld. Counsel for the official respondents fairly submits that during the pendency of this OA, additionally it has been stated by the office of (CAT/AHMEDABAD BENCH OA NO.493/2012) 15 respondent no.3 that the corrigendum dated 07.05.2009 was issued by the O/o DRM but without the approval of the DRM. However, at the same time, the official respondents had not rebutted the fact that the eligibility list, the select panel lists as well the appointment letters were issued with the due approval of the competent authority.
9. Further, it is stated that by accepting the submission of counsel for the applicants, this Tribunal vide order dated 25.07.2019 disposed of the MA No. 284/2018 for amendment of the OA (for their challenge to corrigendum dated 07.05.2009) filed along with MA No.285/2018 for condonation of delay as it had become infructuous.
9.1 It is submitted that so far as the applicant no.2 herein is concerned, his application for taking part in LDCE was not accepted by the official respondents long back i.e., in the year 2008. Thereafter, through applicant no.1-Union, he had raised industrial dispute for non inclusion of his name in the eligibility list for the LDCE in question. After the reply filed by the official respondents before the ALC the said dispute of the applicant no.1 union was further not entertained by the ALC. Therefore, it is not correct on the part of the applicants to contend that they were not aware about the eligibility criteria prescribed for the SC/ST in the said LDCE. Even otherwise, the applicant no.2 does not possess requisite eligibility. Hence, he is not entitled for any relief as sought in this OA, argued the counsel for the respondents.
10. Private respondent no. 16 to 26 filed their reply and denied the contentions of the applicants. Learned counsel Shri Bhaskar Tanna, for the private respondents herein primarily raised the issue of maintainability of this OA on the ground that the applicant no.1 i.e., Paschim Railway Karmachari Parishad (the Union) which is not recognized by the Railways, cannot file the present OA as the affected party and as such, on the point of locus standi, the present application was liable to be rejected. The notification which was sought to be quashed cannot be challenged by someone who is not at all affected by it and even otherwise the applicant no. 2 is not eligible under the Rules to participate in 25% LDCE. Therefore, on the ground of locus standi, the present application and the challenge cannot be sustained and the reliefs (CAT/AHMEDABAD BENCH OA NO.493/2012) 16 prayed for in the application require to be rejected in limine. In this regard, the private respondents have relied upon the judgment of the Honble Supreme Court in the case of Bengal Immunity Co. Vs. State of Bihar (1995) 2 SCR 603 and Kochunni Vs. State of Madras (I) AIR 1959 SC 725 to support their contention.
11. They have also raised the issue of delay saying that the notification dated 29.04.2009, has been challenged after 3 years of its issue and therefore, on the ground of limitation also, the application deserves to be rejected. Learned Counsel, vehemently submits that the selection process for filling up the post of Sr. PWS, under 25% LDCE quota was started in the year 2008 i.e., notification dated 09.09.2008. Thereafter, the corrigendum to the said notification was issued by the O/o the DRM (E) ADI on 07.05.2009 whereby, SC/ST candidates having one year and more regular service were allowed to participate in LDCE for 25% LDCE quota. The copy of said notification and corrigendum was send to Sr. DEN (HQ) ADI, (W) ADI (NW) ADI, all ADENs, all SSE/SE (P.Way) ADI Division Divi. Secy,. WREU/WRMS/SC/ST/OBC Association-ADI. Accordingly, the eligible Railway employees such as Gangman, Keyman, Trolleyman, Mate etc. belonging to the said category were allowed to participate in the said LDCE.
Neither the applicant no.1 nor the applicant no.2 raised any grievance against the said corrigendum dated 07.05.2009. Therefore it is submitted that the contentions of the applicants that they were not aware about the said notification was a myth and afterthought.
It is submitted that once the Railway authorities have granted relaxation and concession to the SC/ST candidates and allowed to participate in selection process that too by way of LDCE, the said decision of the official respondents was just and proper and in consonance with the existing policy of the Railway Authorities. Under the circumstances, in absence of any infringement of rights of the applicants, the claim of applicants is not tenable. The private respondents herein successfully passed the LDCE and only after the requisite training, they have been appointed as Sr. PWS under 25% LDCE quota. Therefore, applicants are not entitled for any relief as sought in this OA.
(CAT/AHMEDABAD BENCH OA NO.493/2012) 1712. Learned Senior Counsel further submits that there is no question of malpractice on the part of private respondents nor any objections had been taken with regard to their qualification and as such there was no fault of the private respondents in participating in LDCE. It is submitted that the private respondents had passed the LDCE without there being any relaxation in minimum requirement of passing aggregate 60 % marks and the professional ability. The entire selection process attained finality with due approval of the competent authority. Therefore, the settled position cannot be unsettled at this belated stage.
He further argued that as such on the ground of lack of locus of applicants and delay in filing the OA, the applicants are not entitled for any relief. Even otherwise the applicant no.2 is not eligible to claim any concession as provided to the private respondents by the competent authority.
In support of aforesaid submission Ld. Counsel placed reliance on the following judgments (i) judgment dated 20.12.2017 passed by Hon'ble High Court of Gujarat in the case of Reema Munshi Vs State of Gujarat LPA 727/2017. (ii) (2008) 14 SCC 306 B.C.Mylarappa Vs. Venkatasubbaiah (iii) (2011) 5 SCC 464 Bholanath Mukherjee Vs Ramkrishna Mission (iv) RamranvijSinh Vs State of UP in Civil Appeal No. 367/20117 decided on 11.11.2017 and further submits that the applicants are not entitled for any relief as prayed in this OA.
13. The private respondent No.27 has filed his reply and contended that his date of appointment being 10.09.2004, he had put in more than 3 years of regular service in the feeder cadre. He possesses degree in B.Sc with Physics, Chemistry and Mathematics. Therefore, he has a higher qualification than 10th/10+2 which is a minimum qualification notified for the post of Sr. PWS vide notification dated 09.09.2008. He fulfils all the terms and conditions for selection and he was found qualified and suitable by the selection committee. Accordingly, his name was placed in the final panel and was appointed as Sr. PWS on the basis of his merit and performance.
14. Mr. M. S. Trivedi Learned Counsel for some of the private respondents appears and submits that the applicants herein were very much aware about (CAT/AHMEDABAD BENCH OA NO.493/2012) 18 the declaration of the eligibility list of the Group-D employees and at that time, neither the employees union i.e., applicant no. 1 herein nor the applicant no.2 had submitted any objection against the eligibility list dated 29.04.2009 as also the eligibility list dated 05.06.2009. On the contrary, the applicants kept silent after their application was not accepted and same was return by the respective Railway units. The members of applicant Union as well as the applicant no.2, who belongs to general category were aware that they could not have claimed any concession granted to the SC/ST candidates. Since, they themselves did not possess three years of regular service in the cadre of Group-D, they were not eligible to participate in the LDCE. Even otherwise, the eligibility list was published in the month of April, 2009, the corrigendum was issued in the month of May, 2009, the final eligibility list was published in the month of June, 2009, the result of successful candidate in the written test held for 25% LDCE quota was published on 14.07.2009 and the DPC recommended the case of 49 candidates for grant of promotion to the Sr.PWS. The competent authority finally declared the provisional panel list on 28.08.2009 for pre-induction training and subsequently vide order dated 19.07.2012, the private respondents were appointed. The applicants did not raise any grievance all this while. Therefore, the belated feeble grievance raised by the applicants herein against the selection process and the appointment thereon cannot be entertained. The Ld. Counsel submits that no prejudice is caused to the applicants; hence not entertain for any relief.
15. Separate reply has been filed on behalf of respondents No.10 to 15 in which submission has been made on exactly the same line as that taken by respondents No.16 to 26.
16. The applicants have filed their rejoinder in response to the aforesaid four replies and submitted that the applicant No.2 as well as a large number of members of the applicant No.1 Union ought to have been declared eligible to take part in the LDCE held in the year 2009. It is submitted that the Railway Board issued the guidelines with regard to the newly introduced category of Sr. PWS in the year 2007 by issuing RBE No.94/2007 dated 05.7.2007, (CAT/AHMEDABAD BENCH OA NO.493/2012) 19 therefore instructions issued by the Western Railway HQ way back in 1990 cannot be pressed into service in the impugned selection process.
17. On the issue of maintainability raised by the private respondents, the applicants have submitted that the recognition of a Trade Union is not an essential requirement to decide the locus of a registered trade union to espouse the cause of its members before a Court of Law. In the Railway administration, even a non-recognized trade union is entitled to and eligible to participate in the trade union elections. Further, the applicants have produced a copy of the resolution No.4 dated 11.04.2012 of the applicant no.1 association and submitted that the same meets with requirement under Rule 4 (5) (b) of C.A.T procedural Rules 1987, accordingly, the OA filed by the association is maintainable.
18. Thereafter, private respondents No.4 and 5 had filed their counter reply, in which they have primarily highlighted the issue of delay and submitted that there is no proper justification for the inordinate delay in filing the OA hence, the OA is liable to be dismissed on this account. They have relied on the judgment of the Hon'ble Apex Court in the case of Tilokchand Motichand Vs. H.B. Munshi 1969 (1) SCC 110 to support their contention.
19. Shri Bhaskar Tanna, Ld. Senior Counsel for some of the private respondents additionally submits that during the pendency of this OA the official respondents took U-turn in their stand and had issued show cause notice dated 21.11.2014 to majority of the private respondents herein stating therein that at the time of issuance of notification dated 09.09.2008, they were not eligible for the said selection and hence their names were to be deleted from the notified panel. Aggrieved by the said action they approached this Tribunal by filing separate OAs in the year 2014 i.e., OA No. 480 & 481 of 2014. This Tribunal vide its order dated 10.02.2015 quashed and set aside the show cause notice issued to the private respondents by taking into consideration the averments stated by the official respondents in the written reply in OA No. 493/2012.
Further, it is submitted that the said order dated 10.02.2015 passed in OA No. 480/2014 & 481/2014 was not subjected to any further challenge (CAT/AHMEDABAD BENCH OA NO.493/2012) 20 and the private respondents continue in the service as Sr. PWS till date. It is stated that some of the private respondents were further considered to be eligible for promotional post of SSE. In view of this fact, now at this belated stage and more particularly when the private respondents have acquired extensive experience in the cadre of Sr. PWS and some of them working as SSE, there is no meaning to allow or entertain the meritless belated claim of the applicants or to acquiesce with the double standard conduct/stand of the official respondents as such same is not maintainable at all.
20. We have carefully gone through the material on record and also considered the submissions made by the counsel for the respective parties.
21. It is noticed that the official respondent no. 3 herein i.e., the O/o. DRM (E) ADI, Western Railway proposed to hold a selection to fill up the post of Sr. PWS Scale 5000-8000/- (RSRP) through Limited Departmental Competitive Examination (LDCE). Accordingly, the applications were invited from amongst Gangman/Keyman and Mates having qualification of 10+2 with Science and Mathematics and also having minimum qualification of matriculation/High School with 3 years of regular service through proper channel. Further, it was also mentioned in the said notice dated 09.09.2008, that as per the extant policies and directives by Railway Board vide letter dated 01.01.2003 (i.e., RBE No.2/2003), firstly, the vacancies would be filled up by candidates having qualification of 10+2 with Science and Mathematics and if any shortfall against this quota (i.e., 25% LDCE quota) still existed then the candidates having minimum qualification of Matriculation/High School would be called for further test and thereafter, if any short fall still remained, it would be diverted to direct recruitment.
Further, as pleaded in the OA, there was doubt in the minds of the members of the applicant no. 1 Union/ association as to whether the candidates having 10+2 educational qualification with Science and Maths subject, but not having 3 years of regular experience could take part in the said selection process. However, under the bona fide belief that members of applicants union could also take part in the said selection process, they offered their candidature pursuant to the communication dated 09.09.2008 issued by the O/o. DRM. According to the applicants, the said applications (CAT/AHMEDABAD BENCH OA NO.493/2012) 21 were returned by the office of the respondent no.3 to the respective units with an observation that they were not eligible since they did not possess the requisite regular experience of 3 years in the cadre in which they were serving. Therefore, it cannot be said that the applicants were not aware about non-consideration of their applications for want of requisite eligibility.
22. The record further reveals that:-
(22.1) The official respondent no.3 with the due approval of the competent authority, had issued notification dated 29.04.2009, whereby, the eligibility list of 68 Group-D employees for filling up total 58 vacancies (43-Gen, 10-SC and 05-ST) for the post of Sr.PWS under 25% LDCE quota was published and representation was also called for from the employees who had any grievance with regard to the said notification through proper channel within one week from the date of issue of the said notification. It can be seen that copy of the said notification was circulated to all concerned for wide publicity. (22.2) Thereafter, the respondent no.3 in continuation of the said notification issued corrigendum dated 07.05.2009 by referring the notification dated 09.09.2008 and letter dated 22.11.2004 issued by the GM (E) CCG, whereby the SC/ST employees who had rendered one year and above service were allowed to apply against the LDCE quota. The said corrigendum was also circulated to all the concerned including to the recognized union / employee associations. (22.3) Thereafter, duly approved final eligibility list dated 05.06.2009 of 64 candidates working in Group-D posts belonging to all the categories was issued / published by the respondent no.3. In the said eligibility list the names of the private respondents were placed along with other eligible candidates. The said eligibility list dated 05.06.2009 was also circulated by respondent no.3 to all the concerned units as well as to the recognized Union / SC-ST-OBC Association / ADI. Undisputedly, neither the applicant no.1-Union nor the applicant no.2 herein had raised any objection to the said eligibility list dated 05.06.2009.(CAT/AHMEDABAD BENCH OA NO.493/2012) 22
(22.4) After publication of the aforesaid eligibility list, the written test was held on 27.06.2009 (LDCE). The result of the said written test including the name of the successful candidates, who qualified the said LDCE, was published on 14.07.2009 and same was circulated to all concerned units of ADI Division. Thereafter, on the basis of the result dated 14.07.2009 and the service record of said qualified candidates, the respondent no.3 on 28.08.2009 published the provisional panel of suitable candidates with the approval of competent authority. After completion of institutional training and with due sanction accorded by the competent authority, the respondent no.3 herein issued appointment letters dated 19.10.2010 in favour of the private respondents alongwith others whereby, the private respondents herein were appointed to the post of Sr. PWS and since then the private respondents have been working as Sr.PWS. (22.5) It is noticed that the applicant no.1-Union in the month of May 2012, submitted their demand under the provision of Industrial Labour Act 1947 before the respondent no.2 and 3 whereby it was claimed that one Shri Sunil Kant working as Trackman (i.e., applicant no. 2 herein) had applied under LDCE quota, but his application was returned on the ground that he had not rendered 3 years of regular service whereas promotions were granted in the case of other employees who had not completed 3 years of service. Therefore, it was demanded that promotion be granted to said Shri Sunil Kant under LDCE quota. Further, demand was raised with respect to due payment of salary and correction of attendance record. It was also requested therein that the pending departmental appeal filed by the applicant no.2 herein with respect to NIP be expeditiously forwarded before the Appellate Authority.
(22.6) It emerges from the record that Applicant no. 1 union had approached the Assistant Labour Commissioner (C) Ahmedabad and raised the industrial dispute over the demand of promotion to said Shri Sunil Kant in LDCE quota.
(CAT/AHMEDABAD BENCH OA NO.493/2012) 23(22.7) In response to notice dated 30.05.2012 issued by Assistant Labour Commissioner, the official respondent no.3 herein submitted their reply/remarks before the ALC vide letter dated 15.10.2012 wherein it was categorically stated by the respondent no.3 that as per the notification the employees who had completed 3 years of regular service were eligible except SC/ST employees for LDC Examination. Since Shri Sunil Kant had not completed 3 years of regular service, he was not eligible for appearing in LDCE for promotion as Sr. PWS and as such, he was not considered for selection. Further, it was stated in the said reply that the other demand had already been considered. Accordingly, it was stated therein that the case to be treated as closed (Annexure A/12 referred).
23. The aforesaid undisputed facts, amply demonstrate that at every stage of the selection process (publication of eligibility list, corrigendum, final eligibility, Result of written test, provisional panel list, appointment orders etc.) for its wide publicity it was circulated to the concerned Railway units as also to recognized Railway employees union. Undisputedly, the applicant no.2 had never raised any grievance against the eligibility list notified in the month of April 2009 and the corrigendum dated 07.05.2009. There is no material on record to indicate that the applicant no.2 had submitted any representation before the competent authority against the publication of eligibility list dated 05.06.2009. It is evident that applicant no.2 remained silent till the selection process was over and the private respondents were declared successful in the LDCE and were appointed as Sr. PWS. Therefore the submission of the applicants that they were not aware about the publication/corrigendum dated 07.05.2009 and the declaration of the eligibility list dated 05.06.2009 cannot be accepted since the same was notified and circulated by the official respondents to the concerned units as well as the O/o. recognized union as noted herein above.
24. Further, it can be seen that the applicant no.2 admitted that his application was returned due to lack of his eligibility in the year 2008. Further, only in the year 2012, the industrial dispute was raised by the applicant no. 1 union under the provision of Industrial Dispute Act before the Assistant Labour (CAT/AHMEDABAD BENCH OA NO.493/2012) 24 Commissioner (C) Ahmedabad on behalf of applicant no.2 herein demanding promotion to the post of Sr. PWS as it was given to some of the employees who had not rendered 3 years of regular service. In this regard, it is apt to mention that the record reveals that the official respondents in their reply before ALC, Ahmedabad had submitted their explanation to the effect that except SC/ST candidate, the employees who had rendered 3 years of regular service were allowed to participate in the LDCE. Further, it is evident that the applicant no.2 had never submitted any specific representation before the competent authority objecting the eligibility list as also the corrigendum notified by the official respondents. It can be seen that straightaway the applicant no.2 along with applicant no.1 had filed the present OA; in Para IX of the present OA, it has been pleaded by the applicants that "the applicant states and submits that, the applicants union herein has not filed any other application in any other court including the Hon'ble Supreme Court of India with regard to the subject matter of this application, excepting the endorsement of their communication dated 30.05.2012 to the Assistant Labour Commissioner (Central), Ahmedabad which stood disposed of with the issuance of the communication dated 15.10.2012 by the respondent no.3 herein contending the case may be treated as closed. As a matter of fact, the applicant union has no intention to proceed any further before any other authority in pursuance of the aforesaid stand of the Railway Administration. The applicant has no other efficacious alternate remedy available except to approach this Tribunal with the present application."
The aforesaid pleading of the applicants also indicates that without there being any specific representation of the so called affected employees for redressal of their grievance and without there being any decision of the competent authority thereon, the applicants had filed the present OA under Section 19 of the Administrative Tribunal Act. Therefore, in our considered view, it cannot be said that affected applicants had exhausted all the alternative remedies available to them under the service Rules as also to meet with the requirement under the provision of AT ACT to sustain the OA. It also emerges from the records that the applicant had never objected the (CAT/AHMEDABAD BENCH OA NO.493/2012) 25 selection process till it was concluded. As noted herein above, the only reason stated by the applicants that they were not aware about the declaration of the corrigendum and the eligibility list and they came to know about it only after some of the employees received information under RTI. The said submission/explanation of the applicants is also not acceptable for the reason, as noted herein above at every stage of the selection process was made known to all the concerned units in the Railway Department including the offices of recognized Railway employees union.
25. On perusal of the material on record, we find that neither the applicant no.2 nor the applicant no.1 has placed any material entitling them to the benefit of relaxation as granted to the SC/ST candidates. It is also not the case of the applicants herein that they were amongst the eligible candidates in general pool. If the applicants were entitled to avail the benefit of the said relaxation, they could have objected at the first instance itself but they did not opt to do so. The material on record indicates that the applicants were not entitled for such benefits and as such no rights accrued to dispute or object the appointment of private respondents. The selection and appointment of the private respondents were approved by the competent authority in the year 2010. Therefore, the reason stated by the applicant about their ignorance to various notifications issued during the selection process cannot be accepted at this belated stage. Even otherwise after a yawning gap of more than 5 years, this tribunal is of considered opinion that there is no valid reason to unsettle the long standing appointment of private respondents which was approved by the competent authority.
At this stage, we would like to refer the three Judge Bench judgment of the Hon'ble Apex Court passed in the case of Pankjeshwar Sharma &ors. Vs. State of Jammu and Kashmir &ors., Civil Appeal Nos.3904-905/2020 decided on 03/12/2020 reported in (2021) 2 SCC 188, in the said case, while dealing with the challenge against the appointment of certain employees as well the selection process by the unsuccessful candidates, the Hon'ble Apex Court by referring the observations in the case of Arup Das Vs State of Assam (2012) 2 SCC (L&S) 24 that "....even if in some cases appointments had been made by mistake or wrongly, that did not (CAT/AHMEDABAD BENCH OA NO.493/2012) 26 confer any right of appointment to any other person, as article 14 of the Constitution does not envisages negative equality and if the state had committed a mistake, it cannot be forced to perpetuate the said mistake" and also considering the long length of service even in the case of irregular appointment which are not in conformity with the Recruitment Rules held as under:
"[37] It is indisputed that by the time we are called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the learned Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on- going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals.
[38] In Gujarat State Dy. Executive Engineers' Assn. vs. State of Gujarat (Gujarat State Dy. Executive Engineers Assn. vs. State of Gujarat,1994 Supp2 SCC 591), this Court recorded a finding that appointments given under the "wait list" were not in accordance with law. It, however, refused to set aside such appointments in view of length of service (five years and more).
[39] In BuddhiNath Chaudhary vs. Abahi Kumar (BuddhiNath Chaudhary vs. Abahi Kumar, 2001 3 SCC 328), this Court has observed that appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. "We have extended equitable considerations to such selected candidates who have worked on the post for a long period".
[40] We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 (CAT/AHMEDABAD BENCH OA NO.493/2012) 27 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India.
[41] To conclude, we do not approve the reasoning of the High Court that appointments of these 22 candidates have been made under Article 142 of the Constitution to do complete justice but after the matter has been dilated by us, we are not inclined to disturb the appointment of these 22 candidates against whom a grievance has been raised by the appellants in the present batch of appeals."
26. In the case at hand, at the cost of repetition, we reiterate that it is evident that the eligibility list dated 29.04.2009, the second eligibility list dated 05.06.2009 of the candidates for the LDCE including the private respondents herein were notified by the O/o. respondent no.3 with due approval of the competent authority. It is also not in dispute that the private respondents herein had passed the written test without any concession or relaxation of minimum aggregate passing marks i.e., 60% marks in the said LDCE as also passed the professional eligibility. It is noticed that on 14.07.2009, the respondent no.3 had declared the result of written test wherein total 59 employees were found qualified in the said written test of Sr.PWS. After following the selection procedure including considering there service sheet/DAR/B&C, the O/o. respondent no.3, i.e., DRM (E) ADI with the approval of competent authority placed 49 candidates / employees (including the private respondents) in provisional panel for the post of Sr.PWS vide communication/notification dated 28.08.2009. After completion of successful departmental training and on receipt of sanction for the appointment of the 61 candidates (which includes LDC quota + direct recruit), the DRM (E) ADI, Western Railway issued Memorandum/appointment order dated 19.07.2010. Undisputedly, since 2010, the private respondents have been working as Sr.PWS and some of them have even been found suitable for further promotion to the post of SSE.
(CAT/AHMEDABAD BENCH OA NO.493/2012) 28The applicants have miserably failed to point out any illegality much less irregularity in the selection process for 25% LDCE quota & appointment/promotion of the private respondents herein to the post of Sr. PWS vide order dated 19.07.2010.
27. It can be seen that the official respondents by filing their first written statement had categorically denied the claim of applicants and justified their action with regard to selection and appointment of private respondents under LDCE quota. However, after some time, the said official respondent, i.e., respondent no.3 changed / shifted its stand in additional reply. In our considered view the said changed stand on the part of official respondents appears to be an afterthought as the same is contrary to the material on record. It is evident that the competent authority has approved the eligibility list and the subsequent selection process. In the facts and circumstances of the present case as noted herein above the judgments relied upon by the counsel for the applicants are not of much helpful to them. Thus, the lis raised by the applicants is not tenable. Even otherwise in absence of any mis-representation or any fault on the part of private respondents herein with respect to their selection and appointment to the promotional post long back in the year 2010, we do not find any reasonable ground to interfere with their settled position in respective cadre at this belated stage in light of the law laid down by Hon'ble Apex Court in Pankjeshwar Sharma & Ors. (supra).
28. In view of what has been discussed hereinabove, we do not find any substance in the claim put forth by the applicants. The OA fails. The OA accordingly stands dismissed. MA, if any pending also stands disposed of. There shall be no orders as to costs.
(A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
PA
(CAT/AHMEDABAD BENCH OA NO.493/2012) 29