Central Administrative Tribunal - Ernakulam
S Karthikeyan vs The General Manager Southern Railway Hq ... on 16 February, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00156/2020
Thursday, this the 16th day of February, 2023
CO RAM:
Hon'ble Mr. Justice K. Haripal, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
1. S.Karthikeyan, aged 39 years,
S/o. C.Subbiah, Apprentice Junior Engrineer
(Electrical G.S), O/o Senior Section Engineer/
HQ/Electrical, Trivandrum Central,
Trivandrum Division, Southern Railway,
residing at 50, Mookambika Nagar,
Maharaja Nagar Post, Tirunelveli.
2. Sunil Kumar M.S., age 34 years,
S/o. K.Madhavan Pillai, Apprentice Junior Engineer
(Electrical G.S), O/o. Senior Section Engineer/
HQ/Electrical, Trivandrum Central, Trivandrum Division,
Souther Railway, residing at K.K. Nivas, Meenadu,
Nedumagolam P.O., Kollam. - Applicants
(By Advocate: Mr. Martin G. Thottan)
VERSUS
1. The General Manager, Southern Railway, Park Town,
Chennai - 600003.
2. The Chief Engineer (Electrical), Southern Railway, Park Town,
Chennai - 600003.
3. The Divisional Electrical Engineer (G), Southern Railway,
Trivandrum Division, Trivandrum - 695014.
4. The Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum - 695014. - Respondents
(By Advocate: Mrs. O. M. Shalina, SCGSC)
This application having been heard on 3 rd February 2023, the Tribunal
on 16th February 2023 delivered the following :
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ORDER
Per: K. V. Eapen, Administrative Member This Original Application had been filed by two Apprentice Junior Engineers (Electrical/General Service) (substantially in the Technician I grade) of the Trivandrum Division, Southern Railways as they were aggrieved by the Order produced at Annexure A6 issued by the respondents on 28.02.2020 by which the selection conducted and training initiated for the post of Junior Engineer/Electrical/General Service (JE/EL/GS) in the Electrical Department of Trivandrum Division of Southern Railway in Pay Matrix Level - 6 against the 25% Limited Departmental Competitive Examination (LDCE) Quota had been cancelled due to administrative reasons. The relief which was sought by the applicants was to call for the records leading to the issuance of the impugned order at Annexure A6 dated 28.02.2020 and to quash the same.
2. The application was heard by this Tribunal on 09.11.2021. The Tribunal had disposed of the matter on 24.11.2021 by dismissing the O.A with a direction to the respondents that, as a measure of consideration, the respondents could consider promoting the applicants to the post of Senior Technicians with effect from the date their immediate juniors in grade of Technician I were promoted to the post, so that they did not lose any seniority vis-a-vis their juniors. This was subject to the conditions that they were eligible for the promotion if they had remained as Technician - I and also if such promotions of their juniors had actually taken place. It was -3- stated in the Order that this would enable them to to considered at the level of Senior Technicians, for the benefit of any future promotions later, from the date that the juniors got the benefit. It was further directed that any salary drawn by the applicants in the Pay Matrix Level - VI from the date of provisional promotion as Apprentice Junior Engineers, vide Annexure A3 of the O.A, should not be recovered from them, as this provisional promotion was done by the Railways through an error committed by them and, as such, it would fall under the ambit of the law laid down by the Hon'ble Apex Court's ruling as well as Government Circulars on the subject.
3. The two applicants filed an OP(CAT), No.11/2022 against the above Order of this Tribunal dated 24.11.2021. The OP(CAT) was heard and disposed by the Hon'ble High Court of Kerala by its judgment dated 18.02.2022. It was recorded therein that, after hearing both sides, the Hon'ble Division Bench of the High Court was of the firm view that, prima- facie, strong grounds have been made out by the petitioners in the case. It was stated that none of the crucial and relevant aspects which had been brought out were seen duly adverted to by the Tribunal. Hence, it was held by the said Division Bench that it was inclined to take the view that the matter would require serious reconsideration in the hands of the Tribunal in as much the Tribunal has gone wrong in not considering certain crucial and relevant aspects of the matter. It was held that the matter would warrant a remit in the facts and circumstances of the case. The following directions were given in the judgment:-
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"13. For effectuating such a remit, it is ordered that the impugned Ext.P4 final order dated 24.11.2021 rendered by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.156 of 2020, will stand set aside. Consequently, it is ordered that Ext.P1, OA No.156 of 2021, will stand restored to the file of the Tribunal for consideration and decision afresh. Both sides will be at liberty to file any additional pleadings in the matter on the points mentioned herein above. The said process of submission of additional pleadings may be completed within one month or so. Thereafter, the Tribunal may take all reasonable endeavors possible under the circumstances to ensure the early consideration and final disposal of the instant OA No.156 of 2021, after hearing both sides, without much delay and within a time limit that may be found as appropriate and reasonable by the Tribunal, taking note of the interest of administration of justice. While doing so, the Tribunal will meticulously take into account the above said crucial and relevant aspects pointed out herein above, and a final verdict in the matter may be rendered in the OA.
14. The Registry will forward a copy of this judgment to the Registry of the Central Administrative Tribunal, Ernakulam Bench, who is dealing with OA No.156 of 2020, for necessary information and further action. With these observations and directions, the above Original Petition will stand finally disposed of. "
It is as per the above directions of the Hon'ble High Court that this matter has been once again taken up by this Tribunal for consideration.
4. A background of the case would be in order before the issues are taken up for consideration. The two applicants had been working in the post of Technician - I in the Trivandrum Division. They had applied against the notification issued, vide Annexure A1 dated 25.10.2017, to appear in the 25% Limited Departmental Competitive Examination (LDCE) Quota to fill up the vacancies in the category of Junior Engineer (Electrical/General -5- Services) (JE/EL/GS). The vacancies for the post of JE (EL/GS) were:
Unreserved (UR) - 2 and Scheduled Tribe (ST) - 1 under their quota. All Employees of the General Service working at the level of Technician - III and above could apply for the post, subject to their fulfilling certain conditions. After the LDCE was conducted, the applicants in the O.A were ranked at positions No.1 & 2 respectively. They were then provisionally placed in a panel for the post of JE/E/GS and were deputed to undergo a training for a period of 13 weeks vide Annexure A3. It was also indicated that, after they completed the apprentice training, they would be absorbed as regular JE/EL/GS in the Pay Matrix of 35400-112400 in Level 6 against a working post. After the initial training was concluded, they were deputed for further training for a period of 52 weeks vide Annexure A4 dated 21.05.2019. Later, vide Annexure A5 dated 13.01.2020, they were nominated to attend practical (field) training at Depots under the Trivandrum Division from 14.01.2020 to 31.03.2020. It was while they were undertaking this training that the impugned order at Annexure A6 was passed on 28.02.2020. This order abruptly cancelled the selection and the training initiated "due to Administrative reasons". Aggrieved by the Order they approached this Tribunal in this O.A. It was contended that the Order had been passed arbitrarily and unilaterally, without awarding any opportunity to be heard. They had already successfully completed the various training programmes conducted and had also almost completed the practical line of training in the Depot when the said cancellation order was passed. In addition, no reasons had been given in the impugned order for -6- cancellation.
5. On the date of the first hearing of the O.A on 09.03.2020, this Tribunal issued a status quo order. Later the respondents submitted a reply statement. They pointed out, at the outset in the reply statement, that the notification at Annexure A1 inviting applications for the LDCE specifically had a provision that "A pass in the examination will not confer on the candidate any right for absorption as JE/TRD". Thus having accepted and participated in the selection process, the applicants were now estopped from challenging the same. The applicants had only qualified in the written exam and, as per Service Rules and Conditions stipulated in the notification, they had to undergo 12 months training which comprised of both a school course open line and shop training. They would also have to be tested in the same. The respondents submitted that the applicants, along with 20 other candidates, had appeared for selection in written examination conducted on 24.11.2018. It was accepted that after the results were published, the applicants were deputed for training as per Annexure A3. Meanwhile, one of the candidates one Shri Ravindra Kumar, AC/Technician/Gr.I/Trivandrum had represented to them that the selection was not conducted as per Railway Board's Policy as the question paper was not bilingual, i.e., it was not set in Hindi, apart from the English language. This representation was considered by the competent authority after going through the Railway Board's policy on the subject framed by letter No. Hindi-87/OL-1/10/3 dated 03.11.1988. The competent authority then took a decision to cancel the Panel and it was -7- cancelled on 28.02.2020. The respondents have annexed the said Railway Board letter dated 03.11.1988 at Annexure R1. It is their submission that the question papers having not been set bilingually as per the said policy, which covers also departmental tests, whether technical or non-technical, the examination would have to be treated as being conducted against the Rules. It could thus be cancelled by the competent authority. It is further submitted that the said Railway Board policy is binding on the respondents. Hence, as per the policy, the Selection Panel was cancelled by the competent authority.
6. The applicants then filed a rejoinder in which they submitted that the only reason that the respondents have given in their reply statement is that the selection was not conducted properly since the question paper was not set in Hindi, as per Railway Board letter dated 03.11.1988. This has been given as the sole cause for cancelling the entire examination, even though the applicants have completed almost 2 years' training after selection. It is submitted that the Annexure A1 notification was silent regarding the option of candidates to write answers to all questions, except in the General English paper, in Hindi. They submit that when the notification was issued on 25.10.2017, no one, including the said Shri Ravindra Kumar one of the candidates, had raised any objection on the ground that it didn't contain the said provision/option. The said examination was held after conducting pre- promotion training for Reserve Category candidates, including Shri Ravindra Kumar. Even after the said examination was conducted, no request was made by anyone to cancel the selection, nor was there any complaint to -8- the effect that the notification or the question paper had not specified the option to write the examination in the Hindi medium. Thus, this omission has not caused prejudice to anyone. The applicants submit that it was only much after the publication of the Panel and almost at the fag end of the training that the representation was preferred by Shri Ravindra Kumar. Thus the complaint which is said to have been received from Shri Ravindra Kumar appears to be only an after thought as he was not included in the Panel. It is submitted that Shri Ravindra Kumar is estopped from raising that contention and the entire impugned action is vitiated on this score alone.
7. The applicants have also submitted in the rejoinder that the judgment which was referred to in Para 2 of the reply statement, viz., Union of India v S. Vinod Kumar [(2007) 8 SCC 100] in fact supports their point of view. The Hon'ble Supreme Court had held therein that once candidates take part in the selection process, knowing fully well the procedure they are not entitled to question the same. In this case all the candidates had participated in the selection and are thus estopped from questioning the procedure. Further, apart from this point the applicants submit that in the syllabus for selection of Junior Engineer (EL/GS), proficiency in English for carrying out day to day correspondence, preparation of Technical reports and knowledge of Departmental rules including "Indian Electricity Act and Regulation" etc is also required. It is submitted that a working knowledge of English is thus essential for satisfactory performance as a Junior Engineer. -9- Shri Ravindra Kumar had scored only 50 marks out of 100 in the LDCE and thus had failed to secure even the minimum marks to be considered against the reserved point (which it has been clarified later was 60 marks out of
100). In any case as no one else had also qualified from the reserved category one reserved post was being kept vacant for want of suitable candidates. Thus, it may be seen that no prejudice had been caused to anyone even if option of answering in Hindi was not mentioned. It is submitted that the omission of the same is to be taken as a mere irregularity and will not vitiate the entire selection. Hence, the impugned action against the cancellation is discriminatory and against the applicants, who had come out successful in the selection and had undergone almost two years' training. This has caused substantial prejudice to them. The action taken fails to satisfy the test of reasonableness and should be, therefore, set aside.
8. After hearing all the above contentions from the applicants and the respondents this Tribunal had elaborately considered the issue in its order dated 24.11.2021. It was noted therein that the Board's letter No. Hindi- 87/OL-1/10/3 dated 03.11.1988 (produced at Annexure R1) contained various provisions at points 1, 2, 3 & 12. Together these provisions were to the effect that the option of Hindi medium should be allowed in all qualifying and competitive Departmental tests, which includes technical and non-technical departmental examinations conducted by the Railway offices located in all regions, "A, B & C", irrespective of the fact whether translation of the concerned Rule books was available or not. It was also -10- indicated, in the said Circular at Annexure R1, that it should invariably be made clear that the candidates in the beginning itself, i.e., while calling for applications for these examination, that the option of Hindi medium will be allowed in the said examination. However in Departmental examinations conducted for technical posts the knowledge of English, wherever necessary, could also be ascertained. Further, in the qualifying and competitive Departmental tests for technical and non-technical posts, the candidates would have the option to write answers to all question papers, except the General English paper, in Hindi. It was also clearly specified that question papers of all Departmental tests, whether technical or non- technical, should invariably be prepared in bilingual form and that each question paper, should contain clear mentions about the option of appearing in the Hindi medium. Finally, in paragraph 12 of the said circular also indicated the following:-
"In case, option of Hindi medium is not allowed or question papers are not made bilingual in any departmental test, whether technical or non- technical, such an examinaiton will be treated against the rules and could be cancelled by the competent authority."
In addition to these issues this Tribunal also considered the Master Circular 31 No.E(NG)57/PM-1/24 dated 08.10.1958, which at point 6, indicated that question papers are required to be prepared in bilingual form for all departmental tests. These instructions were also reiterated in the "Guidelines for Personnel Officers and Members of the Selection Boards"
constituted for conducting selection for promotion to posts classified as 'selection' in Railway Board Circular No.E(NG)1-98/PM1/17 dated -11- 20.10.1999 at paragraph 7 relating to "Selection process and official language"
9. Drawing from the above Circulars this Tribunal stated in its Order of 24.11.2021 that it was clear from these instructions that the option of Hindi medium should be allowed in all written tests conducted as part of selection process. Further, while calling options from candidates or alerting them to be in readiness for the Examination, all candidates had to be informed that they will have an option to write the answer paper in Hindi. Further, all question papers for written test had to be both in Hindi and English. Any violation of these instructions was deemed to be a procedural irregularity and liable to be cancelled. However the Tribunal also noted that the learned Counsel for the applicant had submitted that the fact that a bilingual option was not given to the candidates is, at best, a small procedural irregularity that can be waived. Learned Counsel had submitted that it was not legally sustainable to cancel the examination and the training as it is affected by the doctrine of estoppel. The candidate Shri Ravindra Kumar who had written the examination but could not qualify having lower marks had never protested about the lack of the option to answer in the Hindi medium either at the time of the notification being issued or just after the examination was conducted. He appears to have objected only much later almost when the applicants were completing the training which is, therefore, only on account of the fact that he had not been successfully included in the panel. This action by Shri Ravindra Kumar was thus an afterthought and had affected -12- the rights of the applicants by causing them substantial prejudice.
10. Learned Counsel for the respondents however submitted that it is only to be adjudicated by this Tribunal as to whether the cancellation was justified or not even if the action had been taken at a later stage. Learned Counsel for the respondents also submitted that once it was brought to the notice of the competent authority that the examination was not being conducted as per proper procedure and rules there was no option for them but to cancel the entire selection and training. The circular of 03.11.1988, produced at Annexure R1 had clearly indicated that the option of answering in Hindi should be allowed in all qualifying and competitive Departmental tests, including Technical and Non-technical Departmental examinations conducted by Railway offices located in all A, B & C regions, irrespective of whether a translation of concerned Rule books were available or not. The instructions specified that it should be made clear to the candidates in the beginning itself that option of Hindi medium would be allowed in the examination. All the question papers of these tests whether technical or non- technical should be prepared in bilingual form. It was also indicated that if such an option of Hindi medium was not allowed or the question paper was not made bilingual in these tests, the examination may be treated as against the Rules and could be cancelled by the Competent Authority. Hence, in this matter, the competent authority took a decision to cancel the examination under the given circumstances.
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11. It was also noted in the Order dated 24.11.2021 by the Tribunal that the respondents had also clearly taken the position that the executive instructions of the Railway have the status of statutory rules and if these instructions are clear and unambiguous the officials in the Railways have to follow it. The applicants had not challenged these instructions, nor had they challenged the use of Hindi in these examinations. Thus the option of allowing candidates to answer in the Hindi medium being omitted to be specified by the respondents is bound to be corrected by cancellation of the selection and the promotion. It was also submitted by the respondents that, unlike what was stated in the O.A by the applicants, Shri Ravindra Kumar had written his answers in English. Thus clear prejudice had been establised that he had not been given the option of writing in Hindi even if he had wanted to do so. It was also submitted that once an irregularity was pointed out, it was incumbent upon the authorities to correct the same. After considering these diverse contentions, the Tribunal in its order dated 24.11.2021 declared as follows in paragraph 11:-
"We have carefully considered these points. On balance, we are in broad agreement with the position of the respondents in the matter. We agree that there has been no vested right which has devolved on the applicants for their promotion. Clearly, there was a mistake committed by the respondents by not specifying the bilingual option at the time of the notification or by allowing the applicants to reply to the questions in the Hindi medium. This has affected the rights of candidates to choose the language in which they wanted to answer the questions. We have also considered the issue that the applicants in the meantime had almost completed their entire training. While this is unfortunate, at the same time we cannot ignore that the circulars of the Railway Board mandate that the entire process has to be conducted in the bilingual form, -14- starting from the issue of the notification right up to the answers and evaluation. It is seen that these instructions have the force of statutory rules in the Railways. We therefore agree with the position of the respondents that the cancellation of the selection and the training is justified under the circular/executive instructions and are thus not able to allow the reliefs sought."
In light of the above findings the directions as brought out earlier in paragraph 2 above were then issued.
12. The matter then came up in OP(CAT) No.11/2022 where the Hon'ble High Court of Kerala noted as follows:-
"10. The main contention urged by Sri.Martin G. Thottan, learned counsel appearing for the petitioners, is to the effect that the Tribunal has not examined in any manner the crucial aspect that the very complaint given by the failed candidate was long after the issuance of the selection notification and that the commencement of the training, etc., and that the training was also almost over and the impugned decision to cancel the selection process was taken in terms of Annexure-A6 only as late as on 28.02.2020. Hence, it is urged that the exercise of power by the respondents, for cancelling the selection process in this case, is highly arbitrary and unreasonable and therefore is illegal. It is pointed out that, it is not as if in every case where the question paper of the selection examination is not set in Hindi, that the selection process should be cancelled, irrespective as to the delay on the part of the complainant, etc., in giving the complaint, but that a discretion is conferred on the competitive authority in terms of Annexure-A1 that the written examination could be cancelled and that the said power, conferred as per Clause 12 of Annexure-R1 guidelines, is a conferment of a power coupled with a duty to exercise it in a reasonable and proper manner and not in an arbitrary and capricious manner. That, in the facts of this case, it is clear that the complainant had accepted Annexure-A1 -15- selection notification and had participated in the selection process, including the written examination, and the results were published on 11.03.2019, by which it was clear that the said candidate had failed in securing the minimum qualifying marks and the training of successful candidates had also started in March, 2019 and it is long thereafter that the complainant had chosen to prefer a complaint as late as on 09.08.2019 and that only a single candidate, who had participated in the examination and failed, had given the said complaint, and in view of the highly belated nature of the complaint, the competent authority was obliged in law to apply their mind to decide as to whether the selection process itself is to be cancelled.
11. Further that, irrespective as to whether the selection process of the successful candidates is cancelled or not, the vacancy set apart for Scheduled Tribe Community has been kept unfilled for selection afresh of a qualified Scheduled Tribe Candidate and irrespective as to whether the present selection process is cancelled or not, the selection process for the unfilled vacancy of Scheduled Tribe would go on and therefore, the competent authority should have been aware of the crucial and elementary relevant aspect that no serious prejudice is thus caused to the complainant and that therefore, it is urged that in view of the highly belated nature of the complaint and also in the light of the crucial fact that no substantial serious prejudice has been caused to the said failed candidate, the competent authority should not have cancelled the selection process at that distance of time. Further that in cases of this nature, it is not as if the successful candidates should be penalised on account of the omission or mistake of the official respondent authorities concerned in setting up of the question paper and in a case of this nature, the interest of administration could have been properly subserved if proper remedial action had been taken by the respondents as against the officials responsible for the above said mistake, instead of cancelling the selection process, after a long distance of time.
12. Per contra, Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the -16- respondents would point out that a mere reading of Annexure-A1 would make it clear that the said guidelines therein are mandatory and that the exercise of discretion by the 4th respondent in issuing Annexure-A6 proceedings for cancelling the selection process cannot be said to be illegal, etc"
It was declared by the Hon'ble High Court that the above relevant aspects which have been brought out by the applicants had not properly adverted too by this Tribunal and thus the Original Application required serious re- consideration.
13. Accordingly, we have taken up remitted O.A for a fresh consideration. During the course of re-hearing the matter neither side filed any additional pleadings, except to the extent that the respondents drew our attention to certain authoritative pronouncements. From the directions of the Hon'ble High Court it is felt that two crucial relevant aspects have to be reconsidered (a) whether the highly belated nature of the complaint is relevant to the decision arrived at and (b) whether substantial and effective prejudice has been caused to the said failed candidate which can justify the decision to cancel at that distance of time. The same considerations were flagged by learned Counsel for the applicant, Shri Martin G. Thottan, in his oral submission before us during the re-hearing of the application. Shri Thottan's primary contention is that the circular produced by the respondents at Annexure R1 in paragraph 12 has clearly given a choice in the cases where the option of Hindi medium was not allowed or where question papers were not set bilingually. This choice is evident by the words -17- of the paragraph 12 that such an examination 'can' be treated as against the rules and 'could' be cancelled by competent authority. His contention is that this 'discretion' needed to have been exercised by the respondents reasonably. He also agreed that no other issues other than reasonableness due to the belated nature of the complaint and the issue of the doctrine of prejudice that needed to be considered.
14. During oral submissions, Shri Thottan pointed out that the Annexure A1 notification dated 25.10.2017 inviting applications for the LDCE did not contain any provision that the question paper would also be set in Hindi and that a provision would be made for answering bilingually. Normally such a provision is given in the question paper but it was not there. However, it is also to be noted that the said candidate Shri Ravindra Kumar did not object during any of these initial stages at all. Shri Thottan in addition raised the point of estoppel. He asked whether such a contention about bilinguality can be raised so much later when everything was over and the training was almost completed. It was submitted by him that, all through the process right from the submission of application to answering the examination, no issue of prejudice had been raised by the candidate Shri Ravindra Kumar. Further, he made the point that it has to be noted about the time when the complaint was received. It is pointed out that the examination was held on 24.11.2018 and the results were announced on 22.03.2019 vide Annexure A2. The results clearly showed that the two applicants had got 88 marks and 86.5 marks respectively whereas the said -18- Shri Ravindra Kumar had got only 50 marks. Hence, neither at the time of the examination on 24.11.2018 nor at the time of the declaration of results on 22.03.2019, was any complaint received. Shri Ravindra Kumar had participated in the pre-promotion training which is given to reserved candidates. After the declaration of results, the Panel was also published on the same day on 22.03.2019. There had been no objection made even at this stage. The applicants were then sent for training on 21.05.2019 and this training was continued and was about to get over in March 2020. From the particulars which have been filed by the respondents, the complaint from Shri Ravindra Kumar was received only on 09.08.2019, much after the training had already started and was more than half way complete. Even after that, the competent authority took a decision to cancel the examination only on 28.02.2020, i.e., just one month before the entire training process was to be completed.
15. In fact, Shri Thottan submitted that the cancellation has only created prejudice against the two applicants. To substantiate this, he pointed out that the syllabus had also called for proficiency in English as many of the technical reports and knowledge of rules required proficiency in English. Hence, if one applies the test of prejudice, there is no prejudice caused to Shri Ravindra Kumar who had got 50 marks only. Further by this cancellation what has happened is that the applicants were doubly discriminated against, because (a) the promotion/select list was cancelled on the last lap of the training on 28.03.2020, and (b) a subsequent -19- notification had been issued for filling up three vacancies of JE (Electrical) against 25% LDCE (similar to Annexure A1) on 30.12.2019, which, since the applicants were already apprentice Junior Engineers, they obviously did not apply for. This cancellation at a later stage had deprived the applicants from applying for the next notification of Junior Engineers. This was therefore an issue of double prejudice being caused against the applicants who had completed almost one year of training as apprentice Junior Engineer. Hence, it is submitted that the cancellation on 28.02.2020 just one month before the entire training was completed and they were to be appointed, is absolutely arbitrary and against the interest of natural justice.
16. Countering these points, learned SCGSC Smt. O. M. Shalina submitted that the Railway Board orders, produced at Annexure R1 and also which have been reflected in the reply statement as well as in the orders of the Tribunal earlier, have indeed the force of law. This fundamental question of law and the very fact of conduct of procedure had been well considered by the Hon'ble Supreme Court of India in Krishna Rai (dead) through LRs and Ors v Banaras Hindu University (BHU) through Registrar and Ors in Civil Appeal Nos.4578-4580 of 2022, arising out of SLP(C) Nos.31186-88 of 2016. She submitted that this judgment fairly covers the situation as well as the position taken by the respondents in this O.A. The Hon'ble Supreme Court had been called upon to decide in Krishna Rai (dead) (supra) whether the principle of estoppel and acquiescence can prevail over statutory service rules prescribing a certain -20- procedure in the case of promotion of Class-IV employees to Class-III Status in the Banaras Hindu University, (BHU). A Single Judge of the High Court was of the view that the statutory rules would prevail and must be strictly adhered to, whereas, the Division Bench of the High Court, although agreeing with the reasoning of the Single Judge that the procedure prescribed under the rules was violated, still proceeded to set aside the judgment of the learned Single Judge, applying the principle of estoppel and acquiescence over and above the eligibility conditions having statutory force laid down by the statutory rules. The Single Judge had allowed the writ petition filed by the appellants and after setting aside the promotion of the respondents 3 to 16, had directed the BHU to carry out the exercise for promotion afresh as per the law and the observations made in the said judgment. The petition had been filed by the said appellants mainly on the ground that the advertisement/notification which had been issued laying down the eligibility conditions did not provide for an interview. However, later on changing the rules of the game and in violation of the eligibility conditions which were in the manual, the Board of Examiners, which did not have any authority of power to amend the said relevant paragraph of the manual laying down the eligibility conditions introduced the interview. A criteria for preparing the merit list was then drawn up giving some marks for the interview. After considering all these issues, the Single Judge directed the BHU to hold a fresh selection for promotion strictly in accordance with the Rules as the Board of Examiners had conducted the proceedings against the particular paragraph of the manual governing such -21- procedure. However, this was later overruled by the Division Bench. The Hon'ble Supreme Court found that the Division Bench had fallen in error in applying the principle of estoppel, that the appellants having appeared in the interview and being unsuccessful proceeded to challenge the same and on that ground alone, allowed the appeals and set-aside the judgment of the learned Single Judge. It was held that the Division Bench, having approved the reasoning of the Single Judge ought not to have interfered in the judgment of the Single Judge on a technical plea. It was held that the Division Bench ought to have considered that the appellants were Class-IV employees working from 1977 onwards and expecting from them to have raised serious objection or protest at the stage of interview understanding the principles of changing the Rules of the game, was too far-fetched, unreasonable and unwarranted. Most relevant for the particular matter in consideration in this O.A, the Hon'ble Apex Court also said that it is a settled principle that the principle of estoppel cannot override the law. The manual duly approved by the Executive Council would prevail over any such principle of estoppel or acquiescence. The Hon'ble Apex Court also referred to the case of Dr. Krushna Chandra Sahu and others v State of Orissa and others [(1995) 6 SCC 1] which had held that the suitability criteria is to be laid down by the Rule making authority and selection criteria cannot be laid down by the Selection Board/Selection Committee unless specifically authorised. Further, even more relevant, the Hon'ble Supreme Court also relied on the case of Tata Chemicals Ltd. v Commissioner of Customs (preventive), Jamnagar [(2015) 11 SCC 628] -22- wherein, it had been laid down that there can be no estoppel against the law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law.
17. Learned SCGSC relied on the above judgments of the Hon'ble Supreme Court in submitting that the laws of estoppel and acquiescence and the accepted fact that the issue was brought to the notice of the respondents fairly late by Shri Ravindra Kumar a candidate for the same selection therefore should not apply in the matter. Nor was it relevant that Shri Ravindra Kumar had taken part in the entire selection process and after so taking part he had objected to the process. This had to be seen in light of the specific findings of the Hon'ble Supreme Court in Krishna Rai (dead) (supra) and the other authorities. Learned SCGSC's contention was that the relevant Railway Board order in the matter clearly provides that these question papers have to be set bilingually and candidates have to be given an option to answer the examination also either in English or Hindi. This was a mandatory provision. Further it can be considered that Shri Ravindra Kumar had almost got the required qualifying marks of 60 even while writing in English and so if he had been given the option of writing in Hindi he could possibly have cleared the LDCE with the required marks and could have well qualified against the relevant vacancy applicable to him. Further, the complaint had been received before the entire period of training was over. The Railway Board orders were absolutely clear on the subject and -23- have the force of law. In Prabhat Ranjan Singh & Anr v R. K. Kushwaha & Ors, in Civil Appeal No.9176 of 2018 arising out of SLP(C) No.22444 of 2017, in fact, the very issue of whether the Indian Railways Establishment Manual (IREM) has statutory force was considered. The Hon'ble Supreme Court had found that the IREM has statutory force and had been issued in exercise of powers vested under the proviso to Article 309 of the Constitution. It was also found that the Railways was not bound by any memorandum issued by the DoPT and is empowered to frame its own rules to lay down the service conditions of its employees. Hence it is to be also considered that the Circulars and O.Ms issued by the Railway Board also do have the force of law as such.
18. In light of the above contentions we now take the first issue as indicated earlier in paragraph 13 along with associated points for consideration. This issue arises out of the fact that the complaint had been given by Shri Ravindra Kumar long after completion of the selection process and the commencement of training; in fact, when the training was almost over. The Hon'ble High Court had noted the point made that the decision to cancel was taken as late as 28.02.2020. The argument of learned Counsel Shri Thottan was that the question paper not being set in Hindi need not rise to the cancellation of the entire selection process since a discretion was being conferred to the authority in terms of Annexure R1 guidelines clause 12. It was to be considered that the complainant had accepted the said selection notification and had fully participated in the -24- process and only when he had failed in securing the minimum qualifying marks that he had only chosen to prefer a complaint as late as on 09.08.2019. Therefore, in view of the highly belated nature, it was argued that the competent authority was obliged in law to apply its mind to decide as to whether the selection process itself is to be cancelled. However no such evidence regarding application of mind was preferred. Further, it had been recorded in paragraph 11 of the judgment of the Hon'ble High Court that, irrespective of whether the selection process of the successful candidates was cancelled or not the vacancy set apart for Schedule Tribe Community has been kept unfilled for selection afresh of a qualified Scheduled Tribe candidate. Thus, irrespective as to whether the present selection process was cancelled or not, the selection process for unfilled vacancy for Scheduled Tribe would go on. It was found therefore that the competent authority should have been aware of the crucial and elementary relevant aspect that no serious prejudice was caused to the complainant. Hence, it was urged that, in view of the belated nature of the complaint and also in the light of the crucial fact that no substantial serious prejudice has been caused to the said failed candidate, the competent authority should not have cancelled the selection process at this distance of time. Further, it was also noted that in cases of this nature it was not as if successful candidates should be penalised on account of omissions or mistakes of the official respondent authorities concerned in setting up of the question paper. Also, in a case of this nature the interest of administration could have been properly subserved if proper remedial action had been taken by the -25- respondents as against the officials responsible for the above said mistake instead of cancelling the selection process after a long distance of time.
19. This Tribunal was then directed to re-examine its earlier orders of 24.11.2021 against the above considerations. It is to be noted at the outset that this Tribunal had broadly looked into the issue of the belated nature of the complaint and had found in paragraph 11 of its Order as follows:-
".......We have also considered the issue that the applicants in the meantime had almost completed their entire training. While this is unfortunate, at the same time we cannot ignore that the circulars of the Railway Board mandate that the entire process has to be conducted in the bilingual form, starting from the issue of the notification right up to the answers and evaluation. It is seen that these instructions have the force of statutory rules in the Railways. We therefore agree with the position of the respondents that the cancellation of the selection and the training is justified under the circular/executive instructions and are thus not able to allow the reliefs sought."
The above finding touches on the point made by learned Counsel for the appliants that the complaint was very much delayed and given only as late as 09.08.2019, and that there was also some discretion on part of the respondents in delaying this matter. In fact, on the other hand, we note that the cases that have been cited by the respondents clearly show that the Railway Board circulars/IREM have the force of law/rules. Prabhat Ranjan Singh & Anr (supra) and Krishna Rai (supra) clearly lay down that the principle of estoppel by taking part in the process and a delay in complaint cannot override what is there in the Law. It was plainly held that the Rules and proceedings laid down will prevail over any principle of -26- estoppel or acquiescence. The entry in paragraph 12 in the Annexure R-1 Circular of the Railway Board dated 03.11.1988 appears at first blush to give a discretion to the respondents. However, a conjoint reading of the entire Circular clearly lays down that if the option of Hindi medium is not given or question papers are not bilingual such an examination is to be treated as against the Rules. It is the mandatory spirit of the Circular that had guided the decision of the respondents to cancel the process and this Tribunal found it correct and as per the Rules and had upheld it. It can thus be argued that making the applicants appear for the examination once again if so ordered is therefore inevitable if it is a mandate on all concerned including this Tribunal to follow the correct Rules/Laws in such matters.
20. However, the second issue to be considered as identified at paragraph 13 earlier, is the issue of cause of prejudice. This issue is one which was raised by the applicants not as much before this Tribunal but more before the Hon'ble High Court. At its core we must note the issue of prejudice is a complex one because in fact quite often as in this particular matter it can be seen that prejudice has been caused to both sides. Is the Tribunal then to weigh the amount of prejudice caused to each side and then decide the issue? We noted earlier that prejudice could be said to have been initially caused to Shri Ravindra Kumar in not allowing him the opportunity to write the examination in Hindi. This prejudice it can be argued could have possibly led to certain far reaching consequences. This is because in case Shri Ravindra Kumar was allowed to write the examination, the language -27- that he may have chosen like Hindi, it is not beyond the realm of possibility that he might have been able to score higher marks, even much above the cut-off of 60 and perhaps even higher than the two applicants who had scored the said 88 and 86.5 marks. If so, he would then have to be considered as a general merit candidate even if he was from the reserved quota. It could have been resulted in one of the two applicants not even being considered for the post of Junior Engineer. So one can argue that there has been some prejudice which has been caused to Shri Ravindra Kumar. The argument that the S.T vacancy still exists even after the process was completed can also be seen in this light. However, there is no avoiding the fact that arguably greater prejudice has been caused to the applicants as well. The decision taken by the respondents to cancel the selection just one month before the training was to be fully completed, indeed at the very fag end has created strong prejudice against the two applicants. This is underlined by the another very relevant fact, that believing that they had been already selected and therefore undergoing training they had not applied or appeared in the notified subsequent examination which was conducted for the promotion to the post of Junior Engineers. In the colourful description of Shri Thottan, 'double' prejudice, has to be accepted was caused to the two applicants in the O.A.
21. Whether the above 'double' prejudice so caused to the applicants can override the statutory rules/laws which have to be followed (and whose importance has been underlined by no less an authority than the Supreme -28- Court) is thus the question that has to be considered as far as this Tribunal is concerned at this stage. We are considering this issue in this way due to the remitting of the matter back to the Tribunal, as otherwise, we had clearly come to the conclusion earlier that the rules have to be followed whatever the circumstances. After due re-consideration and in the spirit of the points made in the remission of the matter back to us, we have come to the conclusion that there could be a fair case made for the applicants that the prejudice that has been caused to them will have to be considered as fatally damaging them, even if the statutory laws in the matter are fully in favour of the respondents. The main consideration we have kept in mind is that a mistake committed by the respondents cannot be allowed to recoil on the two applicants, especially on the ground that has been well reiterated, i.e., they were at the very fag end of a very long training period for the post of Junior Engineers after the process of selection was completed. We have also taken into consideration another contention that the post of Junior Engineers is the stronger springboard for further promotion and therefore strictly cannot be considered as equivalent to the post of Senior Technician to which they have since been promoted in light of our earlier orders. Also, relevantly, they did not appear for the next examination for promotion to the post of Junior Engineer because they were under the understandable impression that their promotions had already been assured after having cleared the first examination. Hence, a finding that the selection is to be cancelled would put them back even further.
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22. We have also been guided by the consideration that the conduct of Shri Ravindra Kumar, a technically qualified employee of the Indian Railways cannot be taken on the same footing as the lower paid applicants in the case of Krishna Rai (supra), fairly lowly placed Grade-IV employees of the BHU. Shri Ravindra Kumar would have been aware right from the beginning about the fact that the process was not proceeding in the bilingual format. He too himself applied for the LDCE and appeared for the same in English. It was indeed only much later that he suddenly found that it was not as per the rule. We agree that this late realisation in his case in terms of the Supreme Court order is not affected by the doctrine of estoppel. However, it is also something that cannot totally be ignored in our point of view especially as Shri Ravindra Kumar was a qualified person who should have known the rules right from the very beginning. We, therefore, conclude that the prejudice which would be caused to the applicants by the cancellation of the Examination can be taken to be greater than the prejudice which has been caused to Shri Ravindra Kumar due to the inability of the respondents to provide him a bilingual question paper and the chance to appear in Hindi.
23. In view of the above re-consideration the Annexure A6 Order dated 28.02.2020 cancelling the selections cannot be allowed and is quashed. The two applicants may accordingly be treated as selected to the post of Junior Engineer and be given their applicable pay scale along with the promotion to the post right from the date that they would have been normally -30- considered from the end of their training period by the respondents. Further, their service would be considered for future promotions from that specific date. All actions in this regard may be taken within a period of 45 days from the date of this Order.
24. The O.A is allowed to the extent as indicated. No order as to costs.
(Dated this the 16th day of February, 2023)
K. V. Eapen Justice K. Haripal
(Administrative Member) (Judicial Member)
bp
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List of Annexures
Annexure A1: True copy of the notification
No.V/P.608/VIII/EL/JE/LDCE dated 25.10.2017.
Annexure A2: True copy of the panel No.V/P.608/VIII/EL/JE/LDCE
dated 22.03.2019.
Annexure A3: True copy of the Office order No.14/2019/EL/GS dated
21.03.2019.
Annexure A4: True copy of the letter No.V/E.150/1/Staff dated
21.05.2019.
Annexure A5: True copy of the letter No.V/E.150/1 dated: 13.01.2020.
Annexure A6: True copy of the Office Order bearing
No.V/P.608/VIII/EL/GS/JE dated 28.02.2020.
Annexure A7: True copy of the letter No.L.CETI.THK.Con.1 dated
16.11.2019 issued to the first applicant.
Annexure A8: True copy of the letter No.L.CETI.THK.Con.1 dated
16.11.2019 issued to the second applicant.
Annexure R1: True copy of Railway Board's letter No.Hindi-87/OL-
1/10/3 dated 03.11.1988.
*****