Central Administrative Tribunal - Allahabad
Ram Autar Aged About 46 Years vs Union Of India Through General Manager on 18 February, 2009
OPEN COURT CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH : ALLAHABAD ORIGINAL APPLICATION NO.267 OF 2005 ALLAHABAD THIS THE 18TH DAY OF FEBRUARY, 2009 HON'BLE MR. JUSTICE A. K. YOG, MEMBER-J HON'BLE MR. S. N. SHUKLA, MEMBER-A 1. Ram Autar aged about 46 years, son of Shri Sita Ram, Resident of Qr. NO. B-9-A, South Colony, Bareilly Jn. 2. Ram Lal, aged about 47 years, son of Shri Chheda, Resident of 89-C, Loco Shed, Bareilly, North Colony, Bareilly Jn. 3. Mohammad Aiyub Khan, aged about 48 years, son of Shri Mohd Sayeed Khan, resident of Qr. NO. G-13-A/C, Railway Colony, Northern Railway, Sitapur City. 4. Naresh Kumar, aged about 45 years, son of Shri Sharda Charan, resident of C/o Shri B.K. Sharma, Nunsir Marg, Chandausi, Moradabad. 5. Maatbar Singh, aged about 38 years, son of Shri Guman Singh, resident of T-59-B, Railway Colony, Dehradun. 6. Yashveer Singh, aged about 41 years, son of Shri Jodha Singh, resident of Village Akka Raipur, P.O Akka Belari, Moradabad. 7. Yaad Ram Singh, aged about 40 years, son of Shri Beg Ram Singh, resident of Vaishali Colony, Near Gandhi Vihar, Ghaziabad. 8. Rikshpal Singh, aged about 52 years, son of Shri Kanhaiya Lal, resident of Qr. NO. E-9-A, Railway Colony, Moradabad. 9. Amar Singh Verma, aged about 50 years, son of Shri Jaipal Singh, Resident of New Transit Camp B/A Loco Colony, Northern Railway, Moradabad. 10. Suman, aged about 45 years, son of Shri Raghubar Dayal, resident of Village Kaithala, PO Sitapur, Bulandshahar. 11. Pradeep Kumar, aged about 47 years, son of Shri Mahesh Chandra, resident of T-3/C, Railway Colony, Court Dwar, District Pauri (Uttaranchal). 12. Tika Ram, aged about 48 years, son of Shri Jhajhan lal, resident of Qr. NO. T-25-C, West Railway Colony, Jwala Nagar, Civil Lines, Rampur. 13. Jagdish aged about 47 years, son of Shri Sukhi Ram, resident of Mohalla Gaushala, Nai Basti, Munsif Road, Chandausi, Moradabad. 14. Pooran Mal, aged about 45 years, son of Shri Phool Chandra resident of Phoolwati Bhawan, House NO. 212, Mohalla Kot, District Jaypee nagar. 15. Khacharu Singh, aged about 46 years, son of Shri Bansi Singh, resident of Ganghat Railway Colony, Bahjoi, District Moradabad. 16. Hari Ram, aged about 43 years, son of Shri Bulaki Ram, resident of Vishnu Vihar, Bahjoi Road, Chandausi, Moradabad. 17. Ram Manorath aged about 48 years, son of Ram Bharose, resident of Village Lambhua, Post Fatehpur Chaurasi, District Unnao. 18. Ganga Ram, aged about 50 years, son of Shri Chheda, Resident of Village Tarwa, Post Barva Sarsand, District Hardoi. 19. Ramesh Chand Yadav, aged about 50 years, son of Shri Babu Lal Yadav, resident of Qr. NO. OHE/G, Railway Colony, Sandila, District Hardoi. 20. Ram Kishor, aged about 52 years, son of Shri Ayodhya Prasad, resident of Qr. NO. T-32-A, Railway Colony, Bulandshahar. 21. Dharam Pal Singh, aged about 42 years, son of Shri Yaad Ram Singh, resident of Village Faridpur, Post Rajatpur, District Jaypee Nagar. 22. Pramod Kumar, aged about 45 years, son of Shiv Badan Lal, resident of Mohalla Aman Jaijal Nagar, District Shahjahanpur. 23. Daya Ram, aged about 54 years, son of Late Mathura Prasad, resident of Mohalla B.B Jai Hadfi Nagar, D.S. Printing Press, Shahjahanpur. 24. Sadanand, aged about 47 years, son of Shri Pardesh Lal, resident of Post Rudrapur Tilhar, District Shahjahanpur. 25. Yashpal Singh, aged about 44 years, son of Duli Singh, resident of Village Khandsal Jahardar, Post Hajipur Jamania, District Moradabad. 26. Manjrul Hasan, aged about 30 years, son of Nafisul Hasan, resident of Qr. NO. 8 Railway Training College, Chandausi. .............Applicants By Advocate: Shri T.S. Pandey. Versus 1. Union of India through General Manager, Northern Railway, Baroda House, New Delhi. 2. Divisional Railway Manager, North Railway, Moradabad Division, Moradabad. 3. Senior Divisional Personnel Officer, Northern Railway, Moradabad Division, Moradabad. 4. Superintending Engineer (Coordination), Northern Railway, Moradabad Division, Moradabad. By Advocate: Shri K.P Singh O R D E R
DELIVERED BY HON'BLE JUSTICE A.K. YOG,MEMBER-J
1. Twenty six applicants joined together in single OA under section 19, Administrative Tribunal Act, 1985 as per permission granted by this Tribunal vide order dated 18.03.2005. Necessary facts, for deciding this OA, are recapitulated hereinunder. The applicants claim to be working as Trackman, Gangman, Gateman, etc. and hence eligible for promotion under departmental quota for Permanent Way Mistry under Para 143 (i) (ii).
2. Respondents vide order dated 31.01.2002 issued notification for conducting suitability selection test for the post of Permanent Way Mistry including requisite qualification with three years regular service. The applicants along with others applied. Test was held on the postponed date on 05.02.2002. 229 candidates appeared and out of them only 34 candidates (including the applicant) qualified in the said examination vide order dated 17.1.2003, interview took place on 04.03.2003. The panel of successful candidates (eligible for promotion) was prepared but the same was declared cancelled later on by the respondent authorities. Candidates feeling aggrieved filed several OA's (including OA No.1044/03 (Dharmendra Pal Singh and Others Versus Union of India and Others). The said order canceling selection was cryptic and did not disclose reasons. Persons feeling aggrieved (including the applicants) filed OA No.1044/03. The said OA was finally decided vide order dated 21.04.2004 (Annexure-9 to the OA). Relevant portion para 18 of the said order of the Tribunal is reproduced below:-
"18.In the facts and circumstances and our aforesaid discussions we hold that order dated 30.07.2003 passed by respondents no.3 is cryptic, non-speaking and is without jurisdiction and, therefore, it is quashed. However, it is open for the respondent no.3 to refer the matter to the General Manager in terms of Para 219(K) of IREM. The present petitioners are allowed".
3. It appears, in pursuance of the aforesaid order of the Tribunal, respondent authorities passed order dated 23.12.2004/Annexure-1 to the OA (impugned in this OA). The relevant extract of the said impugned order reads:-
"I have gone through the complete selection proceedings of the above said selection and referred the rules and instructions made available.
1) Note of Para 143(3) of IREM-1 provides filling up 25% vacancies of the Direct Rectt. Quota from amongst serving Gangman, Keyman through Limited Departmental Competitive Examination (LDCE). Prescribed Direct Rectt. Quota is 50% of the vacancies.
2) The qualifications prescribed for eligible candidates for the post of Supervisor/P.Way under 25% LDCE quota is 10.2 with Science and Mathematics having minimum of three years regular service after regularization Railway Board's letter No.E(NG)II-80 RC-235 reiterated the same qualification and eligibility conditions Railway Board's letter No.E(NG)I-97/PM5/5 dated 7.11.97 circulated under P.S. No.11502/97 further reiterated the same qualification and eligibility conditions with a specific condition that shortfall if any will be filled from amongst Gangman/Keyman/Mates having the qualification of matriculation/HSLC with three years regular service. Further shortfall if any may be added to the direct Rectt. Vacancies as hitherto.
3) From the record it is revealed that A)Notification was issued before preparing the top sheet, which is incorrect. No reassessment of vacancies is permitted during the process of selection therefore assessment of vacancies in May 2002 after notification in January 2002 is irregular.
B)Notification does not indicate number of vacancies and to that extent whole process is incorrect.
C)DRM has no power to cancel the selection if ADRM is the Competent Authority for approving the panel.
As per Para 219(K) of IREM-I 1989 the issue should have been referred to GM who is the only Competent Authority.
D)The assessment of vacancies is not in order. A close scrutiny of top-sheet prepared by the Division indicates that vacancies and total number of posts in the cadre have not been indicated correctly. As per Para 143(3) IREM-I, LDCE vacancies are to be 25% of Direct Rectt. Quota vacancies. Obviously, the method in calculation of 37 posts to determine the quota for 16 LDCE vacancies in top-sheet is beyond comprehensive. In fact, total vacancies should have been worked out to find out the direct rectt. Quota vacancies, in order to determine the 25% vacancies of the quota for LDCE pattern. This method is altogether lacking in the calculation of the vacancies by the Division and thus cannot be accepted as correct assessment of the vacancies. The said exercise cannot be cured at this stage and thus renders the whole process wrong ab-initio. However, the then rules have now been modified by Advance Correction Slip No.134 of IREM-I issued by Railway Board effective from 23.07.2002 circulated under P.S.No.12476/02 which must be adhered to for future assessment.
E)The prescribed qualification as provided under the rules cited above is 10+2 with Science and Mathematics, which has not been adhered to while issuing notification. Only in case of shortfall the eligibility can be extended to Mates and lower educational qualification of matriculates. The applications should not have been called from Matriculates/HSLC at the first instance. This is a blatant mistake which goes to the very root of the selection process and this mistake cannot be cured at this stage.
F)The applications should not have been called from Mate. Mate is not ipso facto eligible under LDCE pattern. A reading of all the instructions shows that they have been expressly excluded under the rules in the first instance. However, they can be included in the field of eligibility only to fill up the shortfall under P.S. No.11502/97. The field of eligibility is therefore altogether illegal and this mistake cannot be ignored.
G)The applications received in response to notification were not properly scrutinized and therefore some of the candidates who were yet not screened were included in the field of eligibility and were considered in the selection process. Sh. Kkacherru Singh S/o Sh. Bansi Singh and Sh. Ganga Ram S/o Sh. Cheda are such of the candidates. Apparently, these candidates were not eligible and should not have been considered. This is an irregularity and their names should have been excluded after proper notice to them of screening process should have been completed before further processing the selection.
In view of the above findings, the selection proceedings of the Supervisor/P.Way known as PWM previously, are ab-initio void initiated in flagrant violation of rules, consists of anomalies of not following proper procedure and therefore is cancelled. DRM/MB is directed to process a fresh selection at proper level. The negligent staff and officers responsible for the above anomalies should be taken up under DAR."
4. Respondents were issued notice parties exchanged pleadings. The Division Bench of the Tribunal dismissed the OA vide order dated 31.05.2006. Relevant extract of the aforesaid order is also reproduced below:-
"Thus we find that impugned order of cancellation of selection process by the General Manager, North Zone, New Delhi is clearly in accordance with the provisions of law and the instructions laid down In the subject. The General manager, has clearly exercised his lawful authority as per provisions contained in para 219 (K) of Indian Railway Establishment Manual, Volume 1, which reads as under:-
"219 (K) The list will be put to the competent authority for approval where the competent Authority does not accept the recommendations of a selection Board, the case could be referred to the General Manager, who may constitute a fresh selection Board at a Higher level, or issue such other orders as he considers appropriate".
As the order in question gives detailed reasons for the findings as aforesaid, and the same is also not vitiated by any malafides, bias or prejudice Tribunal's interference with the aforesaid decision is not at all warranted by the facts and circumstances of this case.
The OA, in question, is therefore, devoid of any merits and deserves to be dismissed. Accordingly, we dismiss the same. No costs".
5. Feeling aggrieved applicant challenged afore quoted order of the Tribunal dated 31.05.2006 by filing Writ petition No.43249 of 2006 (Naresh Kumar and 21 Others Versus Union of India and Others). The writ petition was dismissed as withdrawn with liberty to file a Review applicant Application No.55/06. The said review application is allowed vide order dated 13.01.2009. Relevant para 5 to 7 are reproduced below:-
"5.Apart from the fact that the counsel for the respondents Shri Govind Saran, Advocate conceded that the argument raised on behalf of aggrieved person constituted "an error apparent on the face of the record' and argument raised on behalf of applicants through their counsel Sri T.S. Pandey was accepted by the High Court, we have on our own, perused the pleadings in O.A. and the relevant provisions in IREM (referred to above) and find that the Tribunal while deciding O.A. by means of order dated 31.5.2006 acted some misconception inadvertently inasmuch as the Tribunal while passing he said order dated 31.5.2006(dismissing the OA in question) acted on the basis affirming the impugned order of General Manager, Northern Railway, Baroda House, New Delhi dated 23.12.2004. In para 12 of the Tribunal's order, we have, with the assistance of learned counsel for the parties, gone through and find that none of those objections could justify the cancellation of selection process which was with respect to promotional quota under para 143 (1) (2) and (3) read with para 143 (3). For convenience the aforesaid relevant portion of para 143 fo IREM is being reproduced:-
143.(1)The vacancies in the category of Permanent Way Mistry in scale Rs.1400-2300/- will be filed as under:-
(i)50% by direct recruitment through Railway Recruitment Boards : and
(ii)50% by promotion by seniority cum suitability through written suitability test".
2.)...............
3.)Channel of Promotion/Higher grades:They are eligible for promotion by selection to the post of PWI scale Rs.1400-2300/- and further as per para 143.
NOTE: Outlay direct recruitment quota of 50% of the Vacancies 25% will be filled through a limited Deptt. Examination from amongst Gangman and Keyman who have the Qualification of 10+2 with Science and Maths and have put in a minimum of three years regular service Shortfall, if any, against the limited Departmental Examination will be added to direct Recruitment quota. This will be on experimental basis up to 30.09.1990".
6. Order of the Tribunal dated 30.5.200 (subject matter of present Review Aplication) failed to take notice of the fact that the entire select list for the purpose of filling up 50% promotional quota could not be cancelled if two ineligible candidates had participated in the selection and number of vacancies were altered during process of selection. Since eligible candidates who had successful in the said selection to the extent of correctly determined promotional quota under para 143 should not have been rescinded as the list to that extent was not affected by the irregularity noted by General Manager in his order. Order of the Tribunal suffers from manifest error and clearly appears to be misconstrued. Order of the Tribunal dated 31.5.2006 in OA No.267 of 2005 is hereby recalled.
7. Review Application stands allowed and the OA is restored to its original number."
6. This OA has now been again listed for hearing and we have, accordingly heard Shri T.S. Pandey learned counsel for the applicant and Shri K.P. Singh learned Counsel for the respondents as well as perused the documents on record.
7. For convenience relevant para 143 of India Railway Establishment Manual Vol I (in question) is reproduced:-
"143.(1)The vacancies in the category of Permanent Way Mistry in scale Rs.1400-2300/- will be filed as under:-
(i)50% by direct recruitment through Railway Recruitment Boards : and
(ii)50% by promotion by seniority cum suitability through written suitability test".
2.)Qualification etc. for direct recruitment are as under:-
(i)Educational: (10+2) with science and Maths. Diploma Holders in Civil/Mechanical/Electrical Engineering also be eligible.
(ii)Age: Between 18 to 20 Years.
(iii) Training & Stipend:They will be on training for a period upto one year on a stipend Rs.1400/-.
3.)Channel of Promotion/Higher grades:They are eligible for promotion by selection to the post of PWI scale Rs.1400-2300/- and further as per para 143.
NOTE:Outlay direct recruitment quota of 50% of the Vacancies 25% will be filled through a limited Deptt. Examination from amongst Gangman and Keyman who have the Qualification of 10+2 with Science and Maths and have put in a minimum of three years regular service Shortfall, if any, against the limited Departmental Examination will be added to direct Recruitment quota. This will be on experimental basis up to 30.09.1990".
8. Perusal of impugned order (relevant para quoted above) show that the reasons given in support of the order canceling selection panel are not relevant to the suitability test being held for the purposes of promotion in Para 143 (1) (ii) of IREM Vol I. As far as the ground for incorrect calculation of posts is concerned, the authorities appears to have completely failed to apply its mind because of its acting under misapprehension by referring to promotion relating to Direct Recruitment. The notification under department, suitability test was held itself shows that it was a case of promotion and not that of Direct Recruitment. Further it is to be appreciated that even if vacancies were wrongly calculated the selection panel cannot be set aside and respondent authorities should have recalculated correct facts and may appointed accordingly from the select list.
9. Shri K.P. Singh learned counsel for the respondents refers to Note attached to para 143 (3) of IREM. The opening sentence of the 'Note' itself refers to 'Direct Recruitment'. From the documents on record (particularly Notification) it is not in doubt that it, was a case of 'promotion' and hence the provisions of para 143 (3) of IREM does not apply to the process of 'Promotion'. It is note the case of the respondent-authorities that persons not eligible for appearing in the examination were allowed to seek departmental test, viz-lack of minimum academic qualification, etc.
10. Respondents Authorities are expected to avoid unnecessary exercise which otherwise exposed the concerned to unnecessary in certainty. The object is a public interest and action of respondents should not be arbitrary without logic. The action must be sound appearing to good in consonance. Candidates who fulfilled all requisite qualification and have also cleared the departmental suitability test, and their names found place in the select panel, must be given advantage of the same, subject, however, to the conditions this benefit will be limited to availability of promotional quota.
11. Learned counsel for the applicant place reliance upon order dated 27.11.2008 in OA No.1076/08 (YPS Rana and others Versus Union of India and Others; Relevant para 12 and 13 of the aforesaid order of Tribunal are reproduced below:-
"12. Shri Shyamal Narain learned counsel for the applicant relies upon the case of-Union of India and Others Versus Rajesh P.U.-Puthuvalnikathu and Another, 2003 SCC (L&S) 1048 (Pr.6).
13. We find that the case in hand is on a much better footing as compared to the facts of the case-U.O.I. + Ors. (Supra) decided by the Apex court. Ratio Dexendi-laid down by the Apex Court in the said reported decision is-'in a recruitment/selection process, Cancellation of examination en-bloc is not justified in a case where it is possible to weed out the beneficiaries of irregularities or illegalities out of the total selectees and there is no justification to deny appointment to those selected candidates whose selection was not vitiated in any manner'.
14. In the instant case, we find that ineligible candidates can be segregated/weeded out and selection of all other eligible candidates (which includes the applicant and like others) can be protected. In view of it, cancellation of the entire examination on the alleged ground that it was held on the basis of one notification, has no nexus or relevance to the issue in hand.
15. In view of the above, we have no option but to set aside the impugned order dated 26.9.2008 (Annexure A-1 to the OA) with direction to give effect to the Notification/select list dated 23.05.2008 (Annexure A-6 to the OA) excluding disqualified/in-eligible candidates, to prepare and declare the select panel accordingly in accordance with relevant rules/circulars and make promotion accordingly at the earliest-but not beyond 2 months of receipt of certified copy of this order. We clarify and also provide that notification-dated 04.11.2008 (Annexure-1 with MA No.4952/08) shall not be given effect to and be treated non-est.
16. OA stands allowed subject to above directions. No Costs.
12. Selection process initiated and select panel (for Promotional Quota) finalized, the respondents are expected to carry their action to the logical end, subject to correct Calculation/ascertainment of vacancies by the Department.
13. In view of the above, we set aside the impugned order dated 23.12.2004, direct the Respondents to give effect to the select panel to the extent of available vacancies at relevant time against promotional Quota. We further provide that the Applicants shall be entitled to all consequential benefits viz. notional Seniority and Pensionary benefits, etc., except arrears of emoluments/pecuniary benefit (as also conceded on their behalf by their counsel before us.
14. OA is allowed subject the observations/directions made. No Costs.
Member-A Member-J
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