Calcutta High Court (Appellete Side)
Nirmal Kumar Rawani & Ors vs Union Of India & Ors on 14 December, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
-And-
The Hon'ble Justice Shukla Kabir (Sinha)
W.P.C.T. 207 of 2011
Nirmal Kumar Rawani & Ors.
-Versus-
Union of India & Ors.
For Petitioners : Mr. Prakash Chandra Mondal
Mr. Dinesh Chandra Mondal
For Respondents : Mr. Mahendra Prasad Gupta
Heard on :- December 13 & 14, 2011 Judgment on :- December 14, 2011
The petitioners participated in a selection process held by Adra Division of the South Eastern Railway for the Post of 'Gangman' in 2003. The petitioners became unsuccessful. They submitted a representation after about five months on September 05, 2003 that they became successful in physical endurance test as also written examination. However, at the time of viva-voce, the then Divisional Personnel Officer demanded Rs. 80,000/- per candidate as illegal gratification for being successful in the selection process. The petitioners could not meet the demand and as such they were unsuccessful. The Authority ignored such vague complaint that resulted in filing of a Tribunal application, when the Tribunal directed the Authority to consider and dispose of such representation. Accordingly, the General Manager, South Eastern Railway, passed the reasoned order dated January 03, 2008 appearing at pages 67 to 69 of the petition. The General Manager passed a detailed order giving details of the selection process. The General Manager observed that no illegality was committed in the selection process. The selection process was conducted for a long span and ultimately the provisional panel consisting of 1170 2 candidates, was prepared based on marks obtained in both written as well as viva- voce tests combined, giving due weightage to extant rules regarding reservation for SC/ST and OBC. The panel was prepared strictly in accordance with the merit. The General Manager also observed that similar type of cases filed by the unsuccessful candidates, were dismissed by the other Benches of the Tribunal. The General Manager rejected the representation vide order dated January 03, 2011 that became the subject matter of challenge by a second round of litigation filed in 2008 being O.A. 524 of 2008. The Tribunal considered the issue including the prayer for interim injunction made through M.A. 25 of 2011. The Tribunal observed that the petitioners did not make the erring official a party respondent in the petition. In his absence, the allegations of illegal gratification could not be considered. The Tribunal also considered the reasoned order passed by the Authority. The Tribunal held that the allegation was vague and devoid of merit. The Tribunal dismissed the application with costs of Rs. 14,000/- payable to the Prime Minister Welfare Fund.
Being aggrieved by the said judgment and order of the Tribunal dated April 21, 2011, the petitioners have approached us by filing the instant application.
The learned Counsel appearing for the petitioners submits that the petitioner became unsuccessful in the selection process as they could not meet the demand of illegal gratification of the then Divisional Personnel Officer hence, a proper investigation must be carried out. As we find from the Tribunal application that the petitioners prayed for setting aside of the reasoned order as also direction upon the respondents to issue letters of appointment to the petitioners. We also find that in the application before us, the petitioners prayed for setting aside of the reasoned order as also direction for investigation through "Higher Police Authority". The learned 3 Counsel, however, submits that he would be happy if an investigation is only directed.
Opposing the application Mr. Mahendra Prasad Gupta, learned Counsel appearing for the South Eastern Railway contended that the petitioners participated in the selection process and after becoming unsuccessful, lodged appropriate complaint, that too, after about five months. It was nothing but an afterthought. He also submits that in absence of the erring official, who had allegedly demanded bribe, the allegation could not be considered by the Court. To support his contention he has relied upon the decision in the matter of Public Service Commission, Uttaranchal Vs. Mamta Bisht & Ors. with State of Uttaranchal Vs. Mamta Bisht and Ors., reported in (2010) 12 SCC 204. He has relied upon paragraph 9 of the said decision, wherein the Apex Court observed that the principle analogous to the provisions of Order 1, Rule 9 of the Code of Civil Procedure would be applicable if a person, who is likely to suffer from the order of the Court has not been impleaded as a party. He has a right to ignore the said order as it has been passed in violation of the principles of natural justice. Reliance has also been placed by Mr. Gupta to contend that the order, if any, passed by this Court in absence of the erring official would be of no consequence as it would be violative of the principles of natural justice.
On the issue that the grievance of the petitioner was belated and an afterthought, he has relied upon the decision of the Apex Court in the matter of Trivedi Himanshu Ghanshyambhai Vs. Ahmedabad Municipal Corpn. & Ors. reported in (2007) 8 SCC 644. He has relied upon paragraphs 17 and 19, wherein the Apex Court observed that after participating in the selection process, unsuccessful candidates should not be allowed to make grievance against the selection process in which they were party.
4We have carefully perused the petition. The allegation is so vague that the Tribunal should not have directed consideration of their representation. The petitioners in their complaint said that the Divisional Personnel Officer demanded money. It is not clear whether the same Divisional Personnel Officer continues to remain in such post even till today when he is made a party by designation before us. No definite allegation fixing the responsibility on the erring official was ever made by the petitioners.
Pertinent to note, that the selection process continued upto March 2003. It continued for a long span of time, ultimately the result was published on April 03, 2003, whereas the petitioners lodged their complaint on September 05, 2003 after about five months. The Tribunal very rightly rejected the application that does not deserve any interference. We, however, feel that the petitioners, being unemployed youth, should not be foisted with the liability of costs. We hope and trust that the petitioners should be cautious enough in future before making such omnibus complaint. Costs as awarded by the Tribunal should be made easy.
The application is, thus, disposed of without any order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Shukla Kabir (Sinha), J.) akb