Central Administrative Tribunal - Delhi
Virender Singh S/O Bhopal Singh vs Union Of India Through on 21 March, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1992/2010 This the 21st day of March 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) S/Shri 1. Virender Singh s/o Bhopal Singh Technician Grade II EMU Car Shed, Ghaziabad (UP) 2. Bhola Sharma s/o Saghar Prasad Technician Grade III EMU Car Shed, Ghaziabad (UP) 3. Ram Surat s/o Ram Dulare Technician Grade I EMU Car Shed, Ghaziabad (UP) 4. Sanjeev Kumar Saxena s/o Manish Chander Saxena Technician Grade I EMU Car Shed, Ghaziabad (UP) 5. Mukesh Kumar Saini s/o Tilak Ram Technician Grade III EMU Car Shed, Ghaziabad (UP) 6. Laxman Kumar s/o Brahma Nand Painter Grade II EMU Car Shed, Ghaziabad (UP) 7. Zakur Hussain s/o Mohd. Shafi Technician Grade III EMU Car Shed, Ghaziabad (UP) ..Applicants (By Advocates: Shri B S Mainee and Ms. Meenu Mainee) Versus Union of India through 1. General Manager Northern Railway Headquarters Office Baroda House, New Delhi 2. Divisional Railway Manager Northern Railway DRM Office, State Entry Road, New Delhi 3. Shri Vipin Damanda Divisional Electrical Engineer EMU Car Shed, Ghaziabad (UP) 4. Shri Pradeep Kumar Gupta Office Superintendent EMU Car Shed, Ghaziabad (UP) 5. Shri Chander Mohan s/o Shri Kishan Lal Tech. II/EMU 6. Shri Kunwar Lal s/o Shri Nathi Lal Tech. II/EMU 7. Shri Ravinder Singh s/o Shri Shankar Singh Tech. II/EMU 8. Shri Vijay Kumar s/o Shri Prabhati Lal Tech. II/EMU 9. Shri Yogesh Kumar s/o Shri Satya Pal Tech. II/EMU 10. Shri Sanjay Kumar s/o Shri Harbans Lal Tech. II/EMU 11. Shri Narender Kumar s/o Shri Ram Dass Tech. II/EMU 12. Shri Suresh Kumar s/o Shri Ram Rup Pd. Tech. II/EMU 13. Shri Anup Kumar Oraon s/o Shri Somare Oraon Tech. II/EMU Respondents 4 to 13 to be served through respondent 3 ..Respondents (By Advocates: Shri Vikas Dutta for respondents 1 to 4 Ms. Arunima Dwivedi for respondents 5 to 13) O R D E R
Shri M.L. Chauhan:
The applicants, seven in numbers, have filed this OA thereby praying for the following reliefs:
8.1 That this Honble Tribunal may be graciously pleased to allow this application and quash the impugned order.
8.2 That this Honble Tribunal may be further pleased to direct the respondents to conduct the selection in accordance with the rules.
8.3 That this Honble Tribunal may be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper under the facts and circumstances of the case.
8.4 That the cost of these proceedings may kindly be granted in favour of Applicants and against the respondents.
2. Briefly stated, the facts of the case are that the respondents initiated a selection procedure to fill up 9 (UR-07, SC-01 & ST-01) posts of JE-II/EMU Electrical Department in the grade of Rs.9300-34800 + 4200 (Annexure A-2). The selection was to be made by way of written examination and interview. In all, 48 candidates were held eligible to appear in the examination, as can be seen from the letter dated 9.4.2010 (Annexure A-4). The written examination was to be held on 2.5.2010 and the applicants being eligible appeared in the written examination.
3. The main grievance of the applicants is regarding the selection process to the effect that the confidentiality of the written test, as mandated by the circular of the Railway Board, has not been maintained inasmuch as the names of the candidates were written on the answer-sheets and also that the result of the said examination was not declared by the official respondents with ulterior motives and only the panel of 9 persons was prepared vide impugned order dated 4.6.2010 at Annexure A-1. This Tribunal while issuing the notice did not grant the ex parte stay and the selection was made subject to the outcome of this OA.
4. Notice of this application was given to the official respondents as well as to the private respondents, who have been empanelled vide Annexure A-1 order. It may be stated that respondents 1 & 2 have been impleaded in the official capacity whereas respondents 3 & 4, namely, Shri Viplin Damanda and Shri Pradeep Kumar Gupta are impleaded by name. The applicants in their representation dated 24.5.2010 (Annexure A-7) have levelled the allegations that the officer of the EMU Car Shed and Chief Officer Superintendent have decided to declare the 9 persons named in the representation as having been successful by taking bribe. Similarly, in paragraph 4.8 of the OA, the applicants have alleged that respondent 4, Shri Pradeep Gupta, Office Superintendent was moving about canvassing for showing favour to the candidates and there was a hot rumour that some candidates had made payment for being selected, although respondent 3 has denied the receipt of any amount directly or indirectly from anybody. Thus, in view of the infirmity, as stated above, the applicants have approached this Tribunal thereby seeking to quash the impugned order at Annexure A-1 and directing the official respondents to conduct the selection in accordance with the rules.
5. The official respondents as well as private respondents have filed their separate replies. The official respondents have stated that the selection process was conducted in accordance with the rules. The private respondents, i.e., respondents 5 to 13, in their reply, have categorically stated that they never tipped any of the officers of the Department for getting their names placed in the panel. It is further stated that the applicants have made the representation for the first time on 24.5.2010 thereby leveling false allegations against the officers of the Department and if they were smelling any false act on part of the official respondents, they would not have waited for 22 days and initiated action only after coming to know that their ACRs have not been called from the concerned Department. It is pleaded that it is only thereafter, when they understood that they have not qualified the written examination and will not be selected for the post of JE-II, the applicants in haste have decided to make a representation before the senior officers of the Department and tried all means to get the selection cancelled and requested for conducting fresh examination. The private respondents have further stated that the applicants were well aware that if the selection is cancelled, most of the private respondents will not be able to give the written examination again, as most of them would be more than 45 years of age. The private respondents have also categorically refuted the allegations that the candidates were directed to give their names and designation on the answer-sheets. The private respondents have reproduced the relevant portion of the letter No.831-E/63-2/XIV(Eiv)/L dated 17.5.1989 regarding procedure for conducting selections for departmental promotions, which, thus, reads as follows:
Each answer book shall carry a fly leaf. Both the fly leaf as well as the answering book should be stamped and signed by the Executive Officer so nominated to supervise the conduct of the examination. The employee should write his name, designation and station of posting etc. on the fly leaf only. After the answer books are received from the employees, the fly leaf should be removed and allotted a Roll Number which should also be simultaneously recorded on the corresponding answer book by the departmental Executive Officer nominated to supervise the examination. The answer books should be sent to the Examiner (the Member of the Selection Committee who is nominated for Evaluating the Answer Books) with the Roll No. alone indicated on the answer books. The fly leaves removed from the answer books should be carefully preserved in a Sealed cover which should be kept in the personal custody of the Personnel Officer nominated in the Selection Board, who on receipt of the answer sheets from the Evaluating Officer shall prepare the result after de-coding the Roll Numbers on fly leaves and answer sheets.
6. The private respondents have categorically stated that all the candidates appearing in the written examination were asked to write their name, designation and station of posting etc. on the fly leaf only. None of the candidates wrote such details on the answer sheet. Had it been the case, other candidates, including the applicants, would have objected or raised their voice instantly. According to the private respondents, these objections are made by the applicants only after the declaration of the results and after finding that their names do not appear in the selection list. So far as the allegations leveled by the applicants in the representation dated 24.5.2010 are concerned, it is stated that out of 9 candidates mentioned in the said representation, who have been stated to have given bribe to the officer concerned for their selection, only 7 candidates have been empanelled. Thus, according to these respondents, if the allegations leveled in the representation to the effect that bribe was given for their empanelment, in that eventuality, Shri Ram Surat Yadav (applicant No.3) as well as one Shri Rajender Kumar would have also been empanelled. Thus, according to the private respondents, the allegations are an afterthought and deserve outright rejection.
7. The official respondents have also stated that the condition to the effect that selection will be made on the basis of written examination, and interview has been withdrawn by the Railway Board and the final result was to be declared through DPC followed by the written examination.
8. The applicants have also filed the rejoinder thereby reiterating the submissions made in the OA.
9. We have heard the learned counsel for the parties and gone through the material placed on record.
10. The plea taken by the applicants that confidentiality in the written test was not maintained and that the names of the candidates and the designations were written on the answer-sheets deserve outright rejection for more than one reason. Admittedly, the written examination was held on 2.5.2010 and the representation was made by the applicants on 24.5.2010, i.e., after lapse of 22 days. In case the candidates were directed to write the names and designations on the answer-sheets, as alleged, the applicants could have objected to the higher authorities immediately thereafter. On the contrary, the official respondents, relying upon the letter dated 17.5.1989, relevant portion of which has been reproduced in paragraph 5 above, have categorically stated that the name, designation and station of posting, etc. were required to be mentioned on the fly leaf only. After the answer books are received from the employees, the fly leaf should be removed and allotted a roll number, which should also be simultaneously recorded on the corresponding answer book by the departmental Executive Officer nominated to supervise the examination. It is only then the answer sheet has to be sent to the examiner. Thus, the vague allegation leveled by the applicants to the effect that candidates were also asked to write the name, designation and the station of posting etc. on the fly leaf deserves outright rejection.
11. Learned counsel appearing on behalf of the official respondents has also made available for our perusal the answer sheets of all the candidates in a sealed cover to verify the fact whether the names and designation have been incorporated in the answer sheets, as stated by the applicants. However, we were not inclined to open the answer sheets so produced in a sealed cover, as we have also confronted the learned counsel for the applicants whether his clients wrote the names, designation and station of posting in the answer sheet, as was alleged to have been directed by the officer supervising the examination at the time of the written examination.
12. Learned counsel for the applicants has stated that since his clients were aware about the rule position, they have not written any such name, designation and station of posting, etc. in the answer sheet. Thus, we are of the firm view that the allegation regarding not maintaining the confidentiality in the written examination is without any basis and deserves outright rejection.
13. Learned counsel for the applicants has further argued that respondents 3 and 4 have been impleaded by name and has leveled allegation of malafide and since they have not filed any affidavit or reply, the allegation of malafide stands proved. We have given due consideration to this submission so made by the learned counsel for the applicants and are of the view that the only allegation leveled by the applicants in the representation dated 24.5.2010 (Annexure A-7) regarding respondents 3 & 4 was to the effect that respondent 3, who has been nominated as Chairman, is undergoing a CBI inquiry and cannot give impartial decision in the case and also that the office of the EMU, Car Shed and respondent 3 have decided to declare 9 persons mentioned in paragraph 3 of the representation as having been successful by taking bribe. Besides this, in the OA, the applicants have pleaded that there was a rumour that some candidates have made payment for being selected, although respondent 3 has denied the receipt of any amount directly or from anybody. According to us, such a vague allegation leveled by the applicants without any material to substantiate such allegation cannot be taken as ground that the entire selection was vitiated. The burden was upon the applicants to prove that surrounding factors, which preceded the empanelment of the selected candidates, vitiate the entire selection. It is well settled that the allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demand proof of a high order of credibility. The Apex Court in E.P. Royappa v. State of Tamil Nadu & another, AIR 1974 SC 555 has held that the Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party.
14. If the matter is viewed in the light of the law laid down by the Apex Court, the only GROUND mentioned by the applicants in order to prove the malafide was that the candidates were asked to write their names and designation in the answer-sheets, which have not been substantiated, as stated above, and also the vague allegation that 9 persons have given bribe for placing their names in the panel, whereas the fact remains that applicant 3, who is stated to have given the bribe, has also not been empanelled. This cannot be taken to be a proof that the entire selection is vitiated and we see no infirmity if respondents 3 & 4, who have been impleaded by name, have not filed any reply or affidavit. It may be stated that it is not a case of the applicants that they could not have been failed in the examination, rather the case, as set up by the applicants, is that 9 persons, who have been empanelled, have been wrongly empanelled. We agree with the contentions raised by the learned counsel for the official respondents that the allegation leveled by the applicants is with a view to deprive the selected candidates being appointed against the aforesaid post and entire endeavor of the applicants is that the entire selection process be cancelled, so that the persons so selected are excluded for consideration in future, as most of them will attain the age of 45 years.
15. At this stage, we also wish to notice the other contention of learned counsel for the applicants that the result of the written examination was n ot notified by the official respondents, which smacks that the entire selection was being held and finalized for extraneous consideration. For that purpose, the learned counsel for the applicants has drawn our attention to the selection conducted in the year 2007 for the post of JE (Signal) where the result of the said examination was declared. The official respondents have categorically stated that there is no requirement in the rules to notify the result, which was declared on 12.5.2010.
16. Learned counsel for the official respondents has further contended that the DPC for selection was held on 25.5.2010 and ACRs of those candidates, who have qualified the written examination, were called and it is only one day prior to the meeting of the DPC that the applicants made the representation on 24.5.2010 thereby leveling frivolous allegation, when the applicants were aware that their ACRs have not been called for. As such, the submission made by the learned counsel for the official respondents cannot be rejected. Since the applicants have failed to qualify the written examination, as such it cannot be said that there was no confidentiality in the selection process. At this stage, we wish to notice the decision of the Apex Court in Dhananjay Malik & others v. State of Uttaranchal & others, (2008) 1 SCC (L&S) 1005 wherein the Apex Court held that after participation in the selection process, unsuccessful candidates are estopped from challenging the selection criterion. In the instant case also, if applicants grievance is regarding the non-maintaining confidentiality on the ground that the candidates were asked to write their names and designation in the answer-sheets, they should have objected immediately on the same day or on the next date. However, the applicants remained silent and have raised this objection only after one day when the DPC was to meet on 25.5.2005 for the purpose of preparing a final panel and even much after the declaration of the result on 12.5.2010. Learned counsel for the applicants has failed to show any provision, which stipulates that the result of the written examination has to be notified. Thus, according to us, the declaration of result by the official respondents without notifying the same is the sufficient requirement for the purpose of calling the ACRs of the candidates, who have qualified the written examination for the purpose of preparing a final panel. Even otherwise also, the applicants have not shown any prejudice, which has been caused to them on account of non-notifying the result of the examination. At this stage, we would also wish to refer to the decision of the Apex Court in Sadananda Halo & others v. Momtaz Ali Sheikh & others, (2008) 4 SCC 619, which was a case where advertisement for 5500 posts of Armed Constables were issued and recruitment was to be held in 25 districts for which as many as 25 lakh candidates took part. Initially, the recruitment was compartmentalised districtwise but later on this distinction was removed. The unsuccessful candidates filed a large number of writ petitions challenging the recruitment process, inter alia, on the grounds that, (i) postponement of recruitment from November to December was politically motivated, (ii) removal of districtwise restriction was illegal, (iii) a large number of candidates were interviewed every day. Average time devoted to each candidate was so less that it turned interview a farce. A sample survey of records of selected/unsuccessful candidates was got done through three judicial officers. The Single Judge of the High Court examined districtwise selection and upheld selected process for 10 districts and quashed selection process for 15 districts. The Division Bench allowed appeals pertaining in four districts only while appeals pertaining to rest of the districts were dismissed. The Supreme Court on further appeal set aside the judgments of the Single Judge as well as of the Division Bench. The Apex Court held that the complaint about postponement of dates was not justified. Firstly, there were no proper pleadings with the necessary details before the Single Judge. Secondly how the postponements affected the selection process is nowhere displayed and further which political leaders were responsible for such postponements of the interview dates had also been pleaded. The Apex Court has also held that there is also no substance in the complaint about removal of districtwise restrictions. That by itself cannot be a reason to find fault with the selection process, again on the ground that the petitioners were not able to show as to what prejudice was caused because of removal of such step by the Government. The Apex Court has further held that unsuccessful candidates after having taken part in the interview process could not turn back and call names to the system.
17. In view of what has been stated above and also in the light of the decisions of the Apex Court, referred to above, we see no ground to interfere in the matter. Accordingly, OA being bereft of any merit is dismissed without any order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan )
Member (A) Member (J)
/sunil/