Central Administrative Tribunal - Kolkata
Swapan Debnath vs Eastern Railway on 13 March, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
Date of Order: 13.03.2023
O.A.No. 438/2016 (Physically Handicapped Category)
Coram: Hon'bleMr.Jayesh V. Bhairavia, Judicial Member
Hon'bleMr. Anindo Majumdar, Administrative Member
Swapan Debnath
.........Applicant
- Versus -
1. Union of India
Service through the General Manager,
Eastern Railway,
17, N.S. Road,
Kolkata - 700 001.
2. The Chairperson,
Railway Recruitment Cell,
Eastern Railway,
56, C.R. Avenue, 1st Floor,
Kolkata - 700 012.
3. The Senior Personnel Officer
(Recruitment),
Eastern Railway,
56, C.R. Avenue, 1st Floor,
Kolkata - 700 012.
4. The Assistant Personnel Officer
(Recruitment),
Eastern Railway,
56, C.R. Avenue, 1st Floor,
Kolkata - 700 012.
.......Respondents
For the Applicant(s)(s): Mr. A. Chakraborty, counsel
Ms. P. Mondal, counsel
For the Respondent(s): Ms. E. Banerjee, counsel
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ORDER
Jayesh V. Bhairavia, Judicial Member:
In the instant O.A., being aggrieved with the speaking order dated 18.2.2016 passed by Chairperson (RRC)/ER (i.e. respondent No. 2 herein) whereby the claim of applicant(s) to be called for medical examination since he passed the written test successfully under PWD quota with respect to EN 0110 / 2010-12 came to be rejected on the ground that the last eligible PWD-OH candidate who was called for medical examination and provisionally empanelled had scored 67.13 marks out of 100 whereas the applicant had score only 47.7 marks. Accordingly, he was not considered to be called for medical examination with respect to selection process of EN 0110, the applicant (s) has filed the present O.A(s) under Section 19 of the Administrative Tribunal Act, 1985 seeking relief: (i) to quash and set aside the impugned speaking order (ii) and to issue direction upon the respondents to call the applicant(s) for medical examination since they have qualified the written examination as well as PET in light of order passed by this Tribunal in the matter of Subhadeep Das and ors. v. UOI & ors. and (iii) further direct the respondents to enlarge the panel of written examination so that vacancy would increase and applicant may get consideration for appointment.
2. The brief facts of the case, as stated by the applicant(s) that he had participated in the recruitment process as PWD - OH candidate in response to Employment Notice bearing No. 0110 published in Employment Newspaper "Karmakhestra" on 29.12.2010 . Though the applicant passed written examination successfully and was called for document verification. The applicant attended the said stage of document verification and had successfully 3 completed the same. The respondents had published the final panel but the name of the applicant did not figure therein.
2.1. Being aggrieved, the applicant had approached this Tribunal by way of O.A. No. 218/2015. The said O.A. came to be disposed of vide order dated 3.6.2015 by granting liberty to the applicant to submit his detailed representation and on receipt of it the respondents were directed to consider the same within a stipulated time. (Annexure A/3 refer) 2.2. In compliance of the order passed by this Tribunal vide speaking order dated 18.2.2016 (Annexure A/4) the respondents have informed the applicant that the candidate has to qualify in the written test as per required standard followed by document verification as per merit in the ratio of 1:1:3 as well as fitness in prescribed medical category as per merit in the ratio 1:1 of notified vacancy. Merit position is determined as per marks obtained by the candidate in the written examination. Candidates are called for medical examination strictly as per merit in the ratio 1:1 of the total notified vacancy and candidates who come into the zone of consideration as per merit. Only qualifying in the written examination and being asked to appear for document verification does not confer any right for calling the candidate in the medical examination. Further, it has been stated in the impugned speaking order that the last eligible PWD-OH candidate who was called for medical examination and provisionally empanelled had scored 67.13 marks whereas marks scored by the applicant is only 47.07. So, the candidature of the applicant could not be considered for medical examination. Hence this O.A.
3. Ld. Counsel for the applicant mainly submitted that the respondents have stated in the impugned speaking order that successfully qualified in the written 4 examination has been called for document verification as per merit in the ratio 1:1:3. The said criteria have not been stipulated in the Employment Notice. Further, it is stated that in a similar matter i.e. O.A. No. 1531/2015, decided by this Tribunal vide order dated 24.9.2015 (Annexure A/5), this Tribunal by referring the instructions contained in RBE No. 121 of 2005 as well the order passed by this Tribunal in O.A. 1231/2015 dated 31.7.2015 and held that there is no question of short listing the candidates who have passed the PET test after passing the written test. Further, it has been held that before empanelment, medical examination is contemplated and apparently there is no provision for the Railways to shortlist the candidates who pass the PET test after passing the written test. Accordingly, this Tribunal directed the authorities to consider the applicant for sending them for medical examination before empanelment as per law. Therefore, Ld. Counsel submits that it is not opens for the respondents to change the terms and condition in the midst of selection and the case of applicant require to be re-examined in light of order passed by this Tribunal in O.A. No. 1531 of 2015 dated 24.9.2015 .
4. On the other hand, the respondents have their reply and denied the claim of the applicant(s).
4.1. It is submitted that the applicant has submitted his application with respect to EN. 0110 against PWD post for which there are stages prescribed for selection i.e. (i) written examination (ii) document verification to the extent of 1:1:3 as per merit, and there is no question of conducting of physical efficiency test of PWD candidates. (iii) After clearance of document verification in the ratio of 1:1, the candidates were sent for medical examination as per merit. After following each step as mentioned, candidates who are found fit in medical examination 5 are placed in provisional panel. In the present case, the provisional panel was strictly published as per merit in three parts i.e. on 12.3.2013, 23.3.2013 and 10.7.2013 respectively and finally on 29.4.2014. The candidates who failed to come within the zone of consideration are not sent for medical examination.
4.2. The respondents in their reply, more particularly in para 10, clarified that due to typographical error in the speaking order it has been mentioned total '100 marks' instead of total marks 150. 4.3. Further, it is stated that the applicant had admitted that his score is much less than the score of the last provisionally empanelled PWD-OH candidate.
4.4. It is stated that in similarly clubbed case pertaining to Employment Notice 112 this Tribunal vide order dated 6.10.2016 had opined that controversy raised with regard to written examination and variance of the candidates called for PET test are concerned, the procedure of the recruitment cell is just and proper. It is also held by this Tribunal in identical matters that candidates who have qualified in written test are large in number and out of which certain percentage considering the number of vacancies was sent for PET. The outcome of the candidates who qualified in the PET was considered in the further process of medical examination considering the number of vacancies. In such a manner, every candidate who qualified in the PET is not necessarily called for medical test/examination and if the number of vacancies and number of suitable candidates after medical examination are available, there is no further need of the medical test of the remaining candidate who qualified in the PET. According to the 6 respondents, the procedure followed for preparing the merit list with respect to EN. 0110 of successful candidates is also just and proper and as such there is no regularity at all in considering the case of the applicant.
4.5. It is submitted that the judgment relied upon by the applicant passed in the case of Subhodeep Das & ors. v. UOI & ors. pertains to non-PWD candidates and same is not applicable to the case of the applicant (s) herein.
4.6 Therefore the applicant(s) are not entitled to any relief as sought in this O.A.
5. The applicant has filed rejoinder and reiterated the submission made in the O.A. Additionally, it is stated that the reply filed by the respondents is misleading and same is required to be ignored. It is stated that the respondents have twisted the merit of the applicant and has contended that the candidates will be called for medical examination as per merit in the ratio of 1:1 since there was no interview.
The respondents have not disclosed any reason for preparation of the provisional panel in three parts as well for final merit list published subsequently. The respondents have also not disclosed how many vacancies remain unfilled in Gr. 'D' as well under PWD quota.
According to Ld. Counsel for the applicant, there exists unfilled vacancies and case of the applicant ought to have been considered against the said unfilled vacancies. The reason assigned by the respondents in the impugned order does not speak that the applicant is not eligible to be considered against unfilled vacancies. He reiterated that the respondents have 7 admitted that the selection process has been guided by the directives issued by the Railway Board. However, the selection process has not been followed in terms of Employment Notice but as stated hereinabove the respondents have changed the rule of games after the selection process begins which is not permissible. He reiterates that in Employment Notice the matter of calculation of ratio for calling the candidates for medical examination has not been provided, therefore, the impugned order is liable to be quashed. The contentions as referred by the respondents in their reply are vague and without any proper reference of the judgments / order referred therein. Therefore, the same cannot be relied upon.
6. Heard the Ld. Counsels for both sides and examined material on record.
7. At the outset it is required to mention that none of the Counsel for the parties have placed on record the copy of Employment Notice notified by respondents i.e. RRC ER. In absence of it, it is difficult for this Tribunal to appreciate the contention of Ld. Counsel that selection process has been carried out in terms of Employment Notice.
8. It is noticed that respondents have published provisional panel in three parts i.e. on 12.3.2013, 23.3.2013, 10.7.2013 and lastly on 29.4.2014.
According to the respondents, after written test, the next process was for calling of candidate for document verification in the ratio of 1:1:3 as per the merit list. It is also not in dispute that the applicant was called for document verification. Thereafter, by following the ratio of 1:1 of the total notified vacancy and candidates who come into the zone of consideration as per merit was called for medical examination. At this stage, it is apt to mention that, the applicant has scored 47.7 marks in the written test and the last candidate under PWD-OH category was called for medical examination and empanelled has 8 scored 67.13 marks. This fact has not been disputed by the applicant. However, it is the grievance of the applicant that the respondents had prepared provisional panel in more than three parts. Not only that, the respondents have not placed on record any details about unfilled vacancies under PWD-OH quota. It is not clear whether the vacancies reserved for PWD-OH were duly filled up by the selected candidates or not. According to applicant, there exists unfilled vacancies and as noted hereinabove, the respondents have not placed any material to refute the same.
9. At this stage, we would like to refer to the dictum laid down by the Hon'ble Apex Court in Dinesh Kumar Kashyap vs. Union of India & Ors. reported in (2019) 12 SCC 798 wherein the Hon'ble Apex Court while considering the claim of candidates whose names were placed in extra 20% empanelled list directed the Railway Authority to consider their candidature against unfilled vacancies that too by rejecting the submission of Railway that the vacancy notified were subsequently merged in subsequent Employment Notice, by taking into consideration the undisputed fact that in spite of subsequent Employment/Selection process there exists unfilled vacancies, directed the respondents to consider the claim of successful candidates even enlisted in initial panel for the said unfilled vacancies.
10. Further, it is also appropriate to refer to the judgement passed by Hon'ble High Court at Calcutta passed in WPCT No. 74 of 2022 dated 26.9.2022 wherein by referring the dictum enunciated in Dinesh Kumar Kashyap (supra) the Hon'ble High Court upheld the order passed by this Tribunal and directed to consider the claim of applicant who had applied in response to EN 0113 of 2013 issued by Eastern Railway.
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11. In light of aforesaid discussion and the dictum stood enunciated in the judgment referred hereinabove, as well taking into consideration that there is no denial to the contention of the applicant that there exists unfilled vacancies in Gr. 'D' under PWD-OH quota, we are of the considered opinion that the case of the applicant requires to be re-examined by the respondents.
12. In light of the aforesaid discussion as well taking into consideration the law laid down by Hon'ble Apex Court in the matter of Dinesh Kumar Kashyap (supra) as well judgment passed by Hon'ble High Court in WPCT No. 74 of 2022 dated 26.9.2022, we deem it fit to dispose of the present O.A. with a direction upon the respondents to re-examine the case of the applicant(s) against any post which has remained unfilled and decide whether the applicant(s) can be adjusted against unfilled vacancies, if he is otherwise eligible as per merit. Further, the case of applicant(s) may also be considered as per his options, if any, for different categories of posts against unfilled vacancies and its respective medical category. It is expected that the competent authority shall complete the exercise of consideration of the case of the applicant(s) as directed hereinabove preferably within four months from the date of receipt of certified copy of this order and intimate the decision thereon to the applicant(s) forthwith.
13. In view of the above discussion, the O.A. stands disposed of accordingly. M.A. (s) also stand disposed of accordingly. There shall be no order as to costs.
(Anindo Majumdar) (Jayesh V. Bhairavia)
Administrative Member Judicial Member
sb
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