Central Administrative Tribunal - Hyderabad
Shri B. Viswanatham Oa 366/ 2008 vs Union Of India Reported In (1982) 3 Scc ... on 26 March, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.As No. 366, 367, 595, 810 & 827 OF 2008 DATE OF ORDER: THE 26TH MARCH, 2009 Between:
1. Shri B. Viswanatham OA 366/ 2008 S/o B. Narayana Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
2. Shri V. Satyanarayana S/o V. Anjaneyulu Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
3. Shri V. Mutyala Naidu S/o Simhadrappaddu Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
4. Shri K. Ram Reddy S/o Sathi Reddy Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad. ... Applicants And
1. Union of India rep. by the Secretary (Establishment) Ministry of Railways Railway Board, New Delhi.
2. The General Manager South Central Railway Rail Nilayam, Secunderabad.
3. The Chief Operations Manager South Central Railway Rail Nilayam, Secunderabad.
4. The Chief Personnel Officer South Central Railway Rail Nilayam, Secunderabad.
5. The Senior Divisional Personnel Officer Secunderabad Division South Central Railway Secunderabad.
6. Railway Recruitment Board Represented by its Secretary Secunderabad. ... Respondents Counsel for Applicants : Mr. K.R.K.V. Prasad, Advocate Counsel for Respondents : Mr. M.C. Jacob, Sc for Railways Mr. V. Rajeswara Rao for R-6.
Between:
1. Shri Y. Siva Kumar OA 367/ 2008 S/o Y. Bhima Raju Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
2. Shri G. Ramesh S/o G. Appala Naidu Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Kazipet..
3. Shri P. Venkata Krishna S/o P. Srimannarayana Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
4. Shri A. Mohan Murali Krishna S/o Adeiah Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Kazipet.
5. Shri N. Rajendra Prasad S/o N. Narsimulu Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
6. Shri T. Prashanth Kumar S/o T. Narayana Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
7. Shri P. Vasudeva Reddy S/o P. P. Chenna Reddy Assistant Loco Pilot (Goods) O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad. ... Applicants And
1. Union of India rep. by the Secretary (Establishment) Ministry of Railways Railway Board, New Delhi.
2. The General Manager South Central Railway Rail Nilayam, Secunderabad.
3. The Chief Operations Manager South Central Railway Rail Nilayam, Secunderabad.
4. The Chief Personnel Officer South Central Railway Rail Nilayam, Secunderabad.
5. The Senior Divisional Personnel Officer Secunderabad Division South Central Railway Secunderabad.
6. Railway Recruitment Board Represented by its Secretary Secunderabad. ... Respondents Counsel for Applicants : Mr. K.R.K.V. Prasad, Advocate Counsel for Respondents : Mr. M.C. Jacob, Sc for Railways Mr. V. Rajeswara Rao for R-6.
Between:
1. Shri V. Ganesh Kalyan OA 595/ 2008 S/o V. Vasu Assistant Loco Pilot O/o Chief Crew Controller South Central Railway Vijayawada Depot of Secunderabad Division Vijayawada Railway Station.
2. Shri D. Ravinder Reddy S/o Ganga Reddy Assistant Loco Pilot O/o Chief Crew Controller South Central Railway Ramagundam, Karimnagar District.
3. Shri A. Shiva S/o A.R. Eshwar Assistant Loco Pilot O/o Chief Crew Controller South Central Railway Sanathnagar, Hyderabad.
4. Shri S. Ramanaiah S/o S. Chinna Venkatappa Assistant Loco Pilot O/o Chief Crew Controller Gooty Depot, Guntakal Division Ananthapur District.
5. Shri H. Srinivasa Rao S/o H. Ramantha Rao Assistant Loco Pilot O/o Chief Crew Controller Nandalur Depot, Guntakal Division.
6. Shri M. Chinnakambagiri S/o Kamabagiri Assistant Loco Pilot O/o Chief Crew Controller Nandyal Depot, Guntakal; Division. ... Applicants And
1. Union of India rep. by the Secretary (Establishment) Ministry of Railways Railway Board, New Delhi.
2. The General Manager South Central Railway Rail Nilayam, Secunderabad.
3. The Chief Operations Manager South Central Railway Rail Nilayam, Secunderabad.
4. The Chief Personnel Officer South Central Railway Rail Nilayam, Secunderabad.
5. The Senior Divisional Personnel Officer Secunderabad Division South Central Railway Secunderabad.
6. The Senior Divisional Personnel Officer Guntakal Division, SCR, Guntakal.
7. Railway Recruitment Board Represented by its Secretary Secunderabad. ... Respondents Counsel for Applicants : Mr. K.R.K.V. Prasad, Advocate Counsel for Respondents : Mr. M.C. Jacob, Sc for Railways Mr. V. Rajeswara Rao for R-7.
Between:
1. Shri Shaik Subhani OA 810/ 2008 S/o Shaik Khader Ali Assistant Loco Pilot O/o Chief Crew Controller Kazipet Depot, Secunderabad Div.
SCR, Kazipet, Warangal District. ... Applicant
And
1. Union of India
rep. by the Secretary (Establishment)
Ministry of Railways
Railway Board, New Delhi.
2. The General Manager
South Central Railway
Rail Nilayam, Secunderabad.
3. The Chief Operations Manager
South Central Railway
Rail Nilayam, Secunderabad.
4. The Chief Personnel Officer
South Central Railway
Rail Nilayam, Secunderabad.
5. The Senior Divisional Personnel Officer
Secunderabad Division
South Central Railway
Secunderabad.
6. The Senior Divisional Electrical Engineer
(TRSO), Secunderabad Division
SCR, Secunderabad.
7. The Chairman
Railway Recruitment Board
Secunderabad. ... Respondents
Counsel for Applicant : Mr. K.R.K.V. Prasad, Advocate
Counsel for Respondents : Mr. M.C. Jacob, Sc for Railways
Mr. V. Rajeswara Rao for R-7.
Between:
1. Shri V. Chitti Babu OA 827/ 2008
S/o V. Mahalaxmadu
Assistant Loco Pilot
O/o Chief Crew Controller
South Central Railway
Vijayawada Depot of
Secunderabad Division
Vijayawada.
2. Shri D. Damarakeswara Rao
S/o P. Subbaramaiah
Senior Assistant Loco Pilot
O/o Chief Crew Controller
South Central Railway
Vijayawada Depot of Vijayawada
Division, Vijayawada.
3. Shri K.T.V. Murali Krishna
S/o K. Satyanarayana
Senior Assistant Loco Pilot
O/o Chief Crew Controller
South Central Railway
Vijayawada Depot of Vijayawada
Division, Vijayawada. ... Applicants
And
1. Union of India
rep. by the Secretary (Establishment)
Ministry of Railways
Railway Board, New Delhi.
2. The General Manager
South Central Railway
Rail Nilayam, Secunderabad.
3. The Chief Operations Manager
South Central Railway
Rail Nilayam, Secunderabad.
4. The Chief Personnel Officer
South Central Railway
Rail Nilayam, Secunderabad.
5. The Senior Divisional Personnel Officer
Vijayawada Division
South Central Railway
Vijayawada.
6. Railway Recruitment Board
Represented by its Chairman
Secunderabad. ... Respondents
Counsel for Applicants : Mr. K.R.K.V. Prasad, Advocate
Counsel for Respondents : Mr. M.C. Jacob, Sc for Railways
Mr. V. Rajeswara Rao for R-6.
Coram :
The Hon'ble Mr. Justice P. Lakshmana Reddy, Vice Chairman
The Hon'ble Mr. R. Santhanam, Member (Admn.)
(Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC)
As the core issue involved in all these applications is common, we consider it desirable to dispose of all these OAs by a common order.
2. The relevant facts in brief are as follows:
The South Central Railway issued notification on 27.1.2006 inviting applications for filling up posts of Junior Engineer Grade-II which carry the pay scale of Rs.5000 8000 (pre-revised scale) in South Central Railway (SCR) against 25% direct recruitment quota vacancies by way of conducting General Departmental Competitive Examination (GDCE) to be conducted by Railway Recruitment Board (RRB). As per the eligibility conditions mentioned in the notification, the regular railway group `C' and `D' employees working in the grade of 4500 7000 and below including running staff except staff from RPF/ security department, possessing the prescribed educational qualifications for direct recruitment through RRB irrespective of cadre and branch are eligible to apply for the post of Junior Engineer, Grade-II. The educational qualifications are diploma in electrical/ mechanical engineering from the recognized institutions. The method of recruitment is by way of written examination to be conducted by RRB.. The maximum age limit prescribed is 42 years for general candidates and 45 years for OBCs and 47 years for SCs/ STs, as on 1.1.2006. Railway Recruitment Board also issued another notification on 16.2.2008 inviting applications for about 34 categories of posts from eligible Indian nationals, for the posts in South Central Railway and East Coast Railways. It is open for all including the inservice candidates who are possessing the required qualifications. The method of recruitment is by way of written examination to be conducted by RRB, Secunderabad. In respect of notification dated 16.2.2008 which is open for all, the inservice candidates can send application to RRB directly, but subject to condition of producing No Objection Certificate (NOC) at the appropriate time. So far as the other notification dated 27.1.2006 relating to GDCE, the applications shall be forwarded to RRB only through their respective departments. In pursuance of these two notifications, about 750 railway employees applied. All those applications were forwarded by their respective controlling officers. Out of 750 railway employees who applied for the posts, 483 are Assistant Loco Pilots (ALPs) with which we are concerned in these applications. The RRB received those applications and issued hall tickets notifying the date of written examination scheduled to be held on 22.6.2008 from 10.30 am to 12.00 noon at Secunderabad. While so, on 17.6.2008, the Chief Operations Manager, SCR issued the impugned note under the subject: Withdrawal of NOC to ALPs for appearing in the RRB examination on 22nd June, 2008 for the post of Junior Engineer. The said note reads as follows:
Please advise all concerned that 483 ALPs who have applied for the above posts and are scheduled to appear for the RRB Examination on 22nd June, 2008 that the competent authority, in view of the exigencies of service and to prevent disruption to movement of trains, has withdrawn the NOC/ Permission granted. Arrange to advise through Call book individually, apart from Notice Boards at each Crew Control/ Lobby that any ALP appearing for the examination will be liable for DAR proceedings. Copies of the said note was marked to all DRMs, CELE, Dy.CME/ R&L to ensure strict compliance. After coming to know of the said note, four applicants, who applied for GDCE filed OA 366/ 2008 on 19.6.2008 challenging the said note and also seeking directions to the respondents to permit them to appear for the GDCE being conducted to fill up the post of Junior Engineer Grade-II to be held on 22.6.2008. In the said application, they sought for interim relief in the form of a direction to the respondents to permit the applicants to appear for the examination to be held on 22.6.2008 pending disposal of the OA. This Tribunal, on 20.6.2008 passed an interim order directing the respondents not to take any disciplinary action even if the applicants appear for the examination scheduled to be held on 22.6.2008 and also directed not to declare the results of the examination till the next date of hearing and posted the matter to 1.8.2008.
3. Seven more ALPs, who applied in pursuance of notification issued by RRB dated 16.2.2008 in the employment news filed separate application in OA 367/ 2008 challenging the same note dated 17.6.2008 and seeking similar relief. Similar interim orders were passed in OA 367/ 2008 also. Examination was held on 22.6.2008 as scheduled. Not only the applicants in these OAs but also several others numbering about 400 eligible ALPs appeared for the examination held on 22.6.2008.
4. On 1.8.2008 RRB filed reply in both the OAs 366 & 367/ 2008 and also filed vacate stay petition to enable them to publish the results of the written examination. This Tribunal on 1.8.2008 vacated stay only in respect of publication of results by RRB. Thereafter RRB published results on 5.8.2008. This Tribunal permitted the RRB to proceed with the selection process. While so, on 19.9.2008 six ALPs who had appeared for the examination held on 22.6.2008 and became successful in the examination filed OA 595/ 2008 as they were asked to produce fresh No Objection Certificate (NOC) by RRB at the time of verification of documents and the Railway authorities refused to issue NOC in view of the note dated 17.6.2008. The applicants in OA 595/ 2008 not only challenged the note dated 17.6.2008 but also sought for direction to RRB to accept their candidature and provide appointments. This Tribunal passed interim orders on 19.9.2008 directing RRB not to proceed with the selection process and directed Railway authorities not to initiate disciplinary proceedings against the applicants pending disposal of OA. Later, on 15.10.2008, RRB(R-7) filed reply stating that it has no objection to empanel the applicants 1 to 3 & 6 whose applications were forwarded through proper channel without insisting for fresh NOC but as the applications of applicants 4 & 5 were not forwarded through proper channel, their names cannot be empaneled without production of NOC. RRB also sought for vacation of stay in respect of the continuation of selection process. This Tribunal permitted the RRB to proceed with the selection process subject to the condition to keep two posts vacant pending disposal of the OA to accommodate applicants 4 & 5 also in the panel in case they succeed in the OA. Thereafter the RRB prepared the final list on 12.12.2008.
5. On 16.12.2008 another Assistant Loco Pilot who also appeared for the examination on 22.6.2008 and became successful but not included in the final list for his failure to produce NOC within the prescribed time, filed OA 810/ 2008 seeking similar relief as prayed for by the applicants in OA 595/ 2008. This Tribunal passed interim orders in OA 810/ 2008 to the effect that selections if any made will be subject to the result of OA 810/ 2008.
6. On 22.12.2208 three more ALPs who also appeared for written examination held in pursuance of notification dated 16.2.2008 and passed in the examination, field OA 827/ 2008 pleading that though they submitted applications to RRB through proper channel the RRB is insisting for fresh NOC and the Railway authorities refused to issue fresh NOC in view of the note dated 17.6.2008 and hence their names are not included in the final list prepared by RRB. They challenged the impugned note dated 17.6.2008 and also the action of RRB in not empaneling their names. They sought for direction to the respondents to issue NOC and accept the candidature of the applicants for the post of Junior Engineer Grade-II in terms of the written examination result dated 5.8.2008 and to provide them offer of appointment duly inserting their names in the final list dated 12.12.2008 prepared by RRB. On the date of first hearing of this OA, this Tribunal passed an interim order directing the respondents not to give appointments to those who are likely to be affected in the event of the applicants succeeding in this OA. As the cause of action for all these OAs is the note dated 17.2.2008 issued by the Chief Operations Manager directing all the ALPs not to appear for the examination to be held on 22.6.2008, the applicants in all these OAs advanced common arguments on their behalf on 4.3.2009.
7. The common case of the applicants as set out in the applications is that all the applicants are adequately qualified for the post and therefore, they are desirous of upgrading their status commensurating their qualifications and skills and struggled hard and prepared for the examination and appeared for the common written examination held on 22.6.2008 at Secunderabad. Some of them were already on leave and utilized that leave for writing the examination on 22.6.2008 from 10.30 am to 12.00 noon. Some of them appeared during their off duty. The applicant in OA 595/ 2008 was on sick leave in the Railway Hospital as an out-patient from 16.6.2008 to 23.6.2008. The second applicant was on sanctioned leave availing paternity leave from 8.6.2008 to 23.6.2008. The third applicant who was stationed at Sanathnagar, Hyderabad and he was not required to perform any duty from 10.30 am to 12.00 noon on 22.6.2008 during which time the examination was held. The 4th applicant was on sanctioned leave without pay for 20 days from 3.6.2008 to 22.6.2008. The 5th and 6th applicants appeared for the examination during their off duty hours. The sole applicant in OA 810/2008 appeared for the examination on 22.6.2008 on which date the period of his rest had fallen. The applicants pleaded that all of them have forwarded their applications through their respective controlling officers to the RRB besides applying directly to the RRB and all of them received hall tickets to appear for the examination scheduled to be held on 22.6.2008. They prepared well to write the examination to improve their career prospect as they applied for the post which carry higher pay scale of 5000 8000 than the existing scale of Rs.3050 4590. The applicants have got every right to aspire for higher post by participating in the competitive examination. As per clause (g) of Article 19 (1) of Indian Constitution, all citizens have got right to practise any profession or to carry any occupation, trade or business unless they are restrained by imposing reasonable instructions under Article 19 (6). A vested right cannot be taken away without following due process of law. No restriction can be imposed without invoking due process of law. In fact, the Railway Board, which is the apex rule making body issued instructions to all the Railway Divisions to the effect that that there shall not be any restriction in respect of application submitted for the higher grade post in response to the advertisement issued by the RRB. But, yet the Chief Operations Manager arbitrarily issued the impugned note on 17.6.2008 advising all the ALPs who applied for the higher post and received hall tickets not to appear for the examination scheduled to be held on 22.6.208 in view of the alleged exigencies of service and has withdrawn NOC/ permission granted to all the ALPs and also threatened to take disciplinary action against those who appear for the examination. The said note is unconstitutional and void as it offends Article 14 of the Constitution and since it has no support of any statutory rules or instructions for withholding or withdrawing the already granted NOC and imposing a restriction in respect of only one cadre, i.e. Assistant Loco Pilots working in South Central Railway while allowing such employees of other Railways and other categories of employees within South Central Railway to progress in their career. The impugned note interferes with the freedom of a person to engage himself in any work he chooses. The insistence by RRB to obtain fresh NOC and the action of South Central Railway in not issuing NOC amount to compelling a person to work in a particular post blocking the career prospects which would amount to forced labour. Such actions are violative of Articles 23 of the Constitution. In this regard the applicants relied upon the decision of Hon'ble Supreme Court in the case of Peoples' Union for Democratic Rights Vs. Union of India reported in (1982) 3 SCC 235, para 20. They also relied upon another judgement of the Hon'ble Supreme Court in the case of P. Venugopal Vs. Union of India reported in (2008) 5 SCC 1 wherein the Hon'ble Apex Court in para 12 observed that a Government servant entering into a Government service does not forgo his fundamental rights and on the other hand, he acquires additional rights constitutionally protected because of his status as a person in public employment and that the State or other public authorities are not therefore entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status and that he is endowed with a status of protection against any arbitrary, unreasonable and unequal treatment. They also relied upon another Hon'ble Supreme Court decision in a batch of writ petitions covered along with Benett Coleman and Co. Ltd. Vs. Union of India reported in AIR 1973 SC 106 wherein it is observed that every act done by Government or its officers must be supported by some legislative authority if it is to operate to the prejudice of any person. The applicants further contended that Article 16 of the Constitution provides equality in the matter of public employment and the impugned note dated 17.6.2008 is offending Article 16 of the Constitution as it arbitrarily selected a class of employees to restrict the NOC while such embargo is against the public interest and restricting the competition in the recruitment meant for employing technical people in Railways which is a public service. The applicants in their rejoinder further pleaded that instead of withdrawing the NOC/ permission by the impugned note dated 17.6.2008, the right course for the administration would have been to coordinate with RRB and conduct the examination at different locations by evolving proper relief plans or to hold the examination on different dates as was done in earlier several examinations involving departmental and open market candidates and this would have facilitated the departmental candidates such as the applicants who appeared for the examination. Sudden withdrawal of NOC by the administration has caused mental agony to the applicants and the action of attending the examination by the applicants does not amount to disobedience. The Railways though fully seized of the information in regard to the number of employees applied for RRB examination, did not properly chalk out a plan for smooth conduct of the examination without curbing the rights of the applicants. The applicants disputed the apprehension of alleged disruption of train movements. They pleaded that the sanctioned cadre strength of ALPs contained 30 percent leave reserve which number is sufficient to make arrangements for all the ALPs who applied for selection to a higher grade post as their number did not exceed 25 percent of the cadre strength of ALPs. The applicants further pleaded that the respondent Railways utilized number of ALPs in the Central Railway Information System (CRIS) and several other ALPs on statutory duties as Telephone Operators and Computer Operators which is indicative of the fact that there is no dearth of ALPs. Further, the ALPs work only in goods trains as assistants to the regular drivers. They further pleaded that at any rate, the impugned note is against the instructions issued by the Railway Board vide RBE No. 21/ 2007 which explicitly permit forwarding any number of applications for higher grade posts advertised by the RRB without counting the number of such applications against the ceiling fixed in respect of the posts advertised by the RRB.
8. In respect of forwarding of applications, the applicants pleaded that all the applicants submitted their applications through proper channel and they have got proof for submission of applications to the controlling officers. Further, as per the norms of RRB, the NOC can be submitted either along with the application or at the time verification of original certificates. As there is no dispute in regard to submission of the applications for NOC at the time of submission of applications itself, the respondents are not correct in withholding NOC in respect of applicants, including the applicant in OA 810/ 2008 who had submitted his application through proper channel but could not provide a proof to that effect due to misplacement of acknowledgement. Withholding of NOC is not proper and it ought to have been issued to all the applicants including the applicant in OA 810/ 2008 at the time of verification of the original certificate. In this regard, the applicants contended that the Senior Divisional Personnel Officer, Vijayawada who refused to provide NOC in respect of applicants in OA 827/ 2008 has provided NOC in respect of Shri G. Satyanarayana who was working as Technician Grade-III who also appeared for selection for the post of Junior Engineer Grade-II along with the applicants and thus it is clear that NOC in respect of other categories of employees were issued even after declaration of the written examination results by the RRB at the time of verification of original certificates. The applicants contended that they are entitled for the reliefs prayed for in their applications.
9. The respondents contested all the applications and filed reply statements contending as follows:
Some of the applications of ALPs were forwarded to the RRB and applications of some of the ALPs were withheld for want of sufficient number of SLPs in the division. As many as 483 ALPs were issued hall tickets by RRB for the examination to be held on 22.6.2008. As relieving of such large number of ALPs, which is almost 25% of working strength of the cadre would affect the train movement leading to curtailment/ cancellation etc., the third respondent, viz. the Chief Operations Manager, South Central Railway, Secunderabad was apprised of the situation and the said authority issued the impugned proceedings dated 17.6.2008 advising all ALPs, applied for the said post not to attend their examination scheduled to be held on 22.6.2008 in view of the exigencies of service and to prevent disruption of movements of trains The permission granted earlier for the ALPs to appear for the examination were withdrawn and further cautioned that if any of the ALPs appear for the examination they are liable for disciplinary proceedings. In view of the said proceedings, the Railway have not relieved any of the ALPs to appear for the examination, but however, the applicants in these OAs and some others appeared for the examination held on 22.6.2008 in disobedience of the orders. The applicants belong to running staff of the Railways and essential for working of the trains. Their duty hours are based on the movement of trains and after due rest and other formalities, they can be called for duty at any time for running of trains and in exigencies they should be available for duty at any time. At the time of forwarding the applications to the RRB by respective divisions, it was not brought to the notice of the department that the examination would be conducted on a single day with so many ALPs responding to the same. The directions were issued by way of note dated 17.6.2008 in public interest and to maintain the movement of trains without any hurdle. Therefore, the action of R-3 are legal, bonafide and as such the contention of the applicants against the same are liable to be rejected. The respondents further pleaded that ALPs are recruited by Railway through RRB and the said process of recruitment would be taking minimum of two years and on such selection and appointment, they have to undergo training and other formalities before commencement of working in trains. Hence, replacement of applicants by any other staff immediately is also not possible and as such the administration has decided to withdraw such NOC granted to all the ALPs. The applicants having accepted the responsibility of ALPs of its conditions cannot make any grievance against the public policy which calls upon them to attend their rightful duty to avoid disruption. The conduct of the applicants disobeying the directions of R-3 and attending the examination on 22.6.2008 virtually amounts to flouting the orders of the department and as such any consequence arising out of such disobedience cannot be legitimized as many of the counterparts in the department in the same cadre though applied and got hall tickets were prevented from attending the said examination due to withdrawal of NOC. Hence, the relief sought for by the applicants seeking a direction to offer them appointment to the post of Junior Engineer Grade-II is unsustainable and liable to be rejected. It is further pleaded that Rule 244 of Indian Railway Establishment Code (IREC) stipulates that permission to a Railway servant to submit an application for a post, to appear for an examination or to transfer his service to another post in Railway service or in any other post or department under the Govt. of India or under a State Government shall not ordinarily be refused unless the head of office or department in which he is employed considers that the grant of permission would not be in consistence with the interest of the public service. Hence, withdrawing the permission granted and not permitting the applicants to write the examination in the interest of public service is legal and valid. The respondents pleaded that the department is entitled to refuse issuance of fresh NOCs in respect of those who passed in the examination and approached for fresh NOC as they appeared for the examination in disobedience of note dated 17.6.2008. There is no illegality or irregularity in the action of the respondents in not providing appointments to the applicants who became successful in the written examination held on 22.6.2008. All the applications are devoid of devoid of merits and are liable to be dismissed.
10. The points that arise for consideration in all these OAs are the following:
(i) Whether the Chief Operations Manager of South Central Railway is empowered to issue the impugned note dated 17.6.2008 withdrawing permission to all ALPs to appear for the written examination scheduled to be conducted between 10.30 and 12.00 noon on 22.6.2008 at Secunderabad?
(ii) If so, the impugned note dated 17.6.2008 is sustainable in law?
(iii) Whether the disciplinary proceedings can be initiated against any of the applicants in all these OAs on the ground that they have appeared for the examination in disobedience of the impugned note dated 17.6.2008?
(iv) Whether the RRB is empowered to insist for filing fresh NOC at the time of verification of documents in respect of those applicants whose applications were forwarded through proper channel and who passed in the examination?
(v) Whether the respondent South Central Railway is entitled to withhold the NOC in respect of those ALPs whose applications were not forwarded though submitted by the applicants?
(vi) Whether the applicants in OA 366/ 2008 are entitled for any relief in view of their not qualifying in the written examination?
(vii) Whether the applicants in OA 367/ 2008 are entitled for the reliefs prayed for?
(viii) Whether the applicants 1 to 3 and 6 in OA 595/ 2008 are required to produce their NOC at the time of verification of the documents and if so, whether the South Central Railway is entitled to refuse for issue of fresh NOC?
(ix) Whether the respondents are justified in not forwarding the applications of the applicants 4 & 5 of OA 595/ 2008?
(x) Whether the applicants 1 to 6 in OA 595/ 2008 are entitled for the reliefs prayed for?
(xi) Whether the applicant in OA 810/ 2008 is entitled to be included in the final list prepared by RRB?
(xii) Whether the applicants in OA 827/ 2008 whose applications were not forwarded to RRB, though applied through proper channel are entitled for the reliefs prayed for in their application?
(xiii) To what result?
11. Points (i) & (ii):
The learned counsel for the applicants submitted that the Railway Board issued RBE Circular No. 21/ 2007 wherein the Board itself encouraged its employees to progress in their career by appearing in the competitive examinations that may be held by Government departments by giving four opportunities in a year, and so far as the recruitment by RRB is concerned, the Board has given unlimited chances for its employees to compete in the examination conducted by RRB to progress in their career. He further submitted that even otherwise an employee has got fundamental right under Article 19 (1) (g) to choose his own career and such a right cannot be taken away without authority of law and in the instant case, the Chief Operations Manager, unilaterally without any legislative support or the support of RRB, wanted to prevent a section of Railway employees, viz., the ALPs from appearing in a competitive examination for which they are eligible to appear and whose applications have been duly forwarded to RRB which issued hall tickets, by way of issuing the impugned note date 17.6.2008 and such unilateral and arbitrary action of the Chief Operations Manager is violative of not only Article 19 (1) (g) and also Articles 14 & 16 of the Constitution of India. He further submitted that at any rate, the Chief Operations Manager has got no power to disregard the instructions given by the Railway Board without the consent of the Railway Board. He submitted that the Railway Board's endeavour is to tap the best talent available to perform the jobs in the Railway and Railways entrusted the selection to RRB, an expert agency and the RRB invited applications not only from the open market, but also from the inservice candidates who possessed the required qualifications on par with the open market candidates. The impugned note runs contra to the endeavor of the Railway Board. The apprehension of the alleged interruption of train movements in the event of a large number of ALPs appearing for the examination was only not real but hypothetical and that even otherwise by way of proper planning in coordination with RRB such apprehended eventuality could have been resolved by conducting examination at different locations instead of conducting the examination only at Secunderabad and Hyderabad and that as the examination is only for 1= hours, it could not have been difficult for the Chief Operations Manager, SCR, to ensure smooth running of the trains without dislocation in the event of several ALPs attending for the examination. He further submitted that the respondents themselves forwarded the applications of all the ALPs along with NOCs and having made the ALPs to prepare themselves hard for appearing in the competitive examination to be held on 22.6.2008, they cannot be disappointed at the last moment by preventing them from appearing for the examination while allowing inservice candidates of other departments and also ALPs of other zonal divisions to appear for the said examination. He submitted that the Chief Operations Manager, without applying his mind to explore alternatives to get over the situation that may arise on account of large number of ALPs attending for the examination on 22.6.2008, hastely issued the impugned note arbitrarily without keeping in mind the interest of ALPs whose applications have been forwarded by the department to the RRB. The counsel further submitted that there is 30% leave reserve in the cadre of ALPs and that even according to the respondents, the total cadre strength of ALPs is more than 2000 and only 483 ALPs got hall tickets to appear for the examination and further, the ALPs will only be employed in the Goods Trains just to assist the main driver and therefore, the situation could have been easily managed by proper planning.
12. On the other hand, the learned counsel for the respondents contended that IREM 244 empowers the Chief Operations Manager to issue the impugned note in the public interest as 483 ALPs from SCR obtained hall tickets for the examination scheduled to be conducted on a single day on 22.6.2008 and that the total strength of ALPs is only 2000 and odd and out of them 1/3rd ALPs will be on trains at any given point of time and that every engine of the Goods Trains requires one ALP to assist the driver and that out of 1200 trains, 721 goods trains will be run every day and therefore for operation of the trains 721 ALPs are required every day and that out of the total cadre strength of ALPs, 20% will always be on leave and therefore if 483 ALPs are relieved to enable them to appear for the examination on 22.6.2008, the movements of trains will be disrupted and therefore, the Chief Operations Manager had to take a decision to prevent all the ALPs from appearing for the examination and that such a hard decision was taken in the public interest and that if such a note takes away the rights of those who intended to appear for the examination, in the public interest, they have to forgo their rights. He submitted that as the note was issued in the public interest and is not malafide, such a note cannot be termed as arbitrary or unconstitutional. He further submitted that as the Chief Operations Manager is the head of the SCR and it is his responsibility to ensure smooth running of trains and hence he has got power to issue such a note in the interests of smooth running of trains. The learned counsel submitted that in pursuance of notification dated 16.2.2008, which is open to all, 30,751 applications were received by RRB and out them 750 were from inservice candidates of SCR and out of those 750 inservice candidates, 483 are ALPs. He submitted that whenever there is a conflict between public interest and individual interest, public interest should prevail and therefore, the Chief Operations Manager, rightly took a decision to prevent all the ALPs to appear for the examination. He further submitted that the SCR did not anticipate that the RRB would conduct examinations in respect of all the categories of posts advertised in the notification dated 16.2.2008 on a single day. Therefore, the respective controlling officers forwarded all the applications to the RRB.
13. For better appreciation of the rival contentions, it is useful to extract RBE Circular No. 21/ 2007 and also para 244 of Indian Railway Establishment Code (IREC):
RBE No. 21/ 2007Subject: Simplification of procedure for forwarding of applications.
As the Railways are aware, Railway employees, whether permanent or temporary, may be given four opportunities in a year to apply for the posts in Government Departments/ Public Sector Undertakings/ Autonomous Bodies, wholly or substantially, financed and controlled by the Central or State Governments. However, the applications of Railway servants forwarded in response to Union Public Service Commission advertisements for competitive examinations and limited departmental examinations are not to be counted against the limit of these four opportunities.
2. Pursuant to discussion in the ICF Staff Council meeting held on 4.8.2006, it has been decided that the applications submitted for higher grade posts advertised by the Railway Recruitment Boards (RRBs), may not also be counted against the prescribed limit of four opportunities in a year. 244. Forwarding of application to another post in railway service or outside the Railways - Permission to a railway servant to submit an application for a post, to appear for an examination for a post, or to transfer his services to another post in railway service or in another office or Department under the Government of India or under a State Government shall not ordinarily be refused unless the head of the office or department in which he is employed considers that the grant of permission would not be consistent with the interests of the public service.
Railway Ministry's decision.
1. The applications from serving employees for employment elsewhere submitted otherwise than in response to advertisements or circulars inviting applications, should not forwarded.
2. The lien of a permanent Railway servant appointed under another Central/ State Government or office may be retained on the Railway for a period of two years (three years in exception cases). If he is not permanently absorbed within this period in the new post, he should immediately on expiry of the said period, either resign from the Railway service or revert to his parent office. Applications should be forwarded only if an undertaking to abide by these conditions is given by the staff concerned.
3. Railway servants may apply in response to open or public advertisement of vacancies by the International Organisations and foreign Governments with the prior permission of the cadre controlling authority concerned. In rare cases, when the time available for submitting the application is short, Railway servant may send his application to the concerned agency in advance with a copy to his cadre controlling authority and this may be confirmed or withdrawn subsequently depending on the decision of the authority. The cadre controlling authorities would consider each case only from the point of view whether the railway servant could be spared or not; not other general considerations should be applied in taking a decision in the case. A Railway servant may be permitted to apply in response to a public advertisement even if he has completed the permitted number of years he can spend in international/ foreign assignment in his career. However, in such a case, he would have to resign or take retirement from Government service on selection. A Railway servant applying for an international assignment in response to public advertisement will not be given the status of `official nominee' for the assignment. Correspondence relating to the grant or denial of permission will be between the Railway servant concerned and the cadre controlling authority/ Government and latter will not correspond with the International Organization/ Foreign Govt. on the subject. As seen from the RBE Circular No. 21/ 2007 issued by the Ministry of Railways/ Railway Board, the policy of the Railways is not to prevent its employees from appearing in the competitive examinations to improve their career prospects. They wanted to give four chances in a year for all of their employees to apply for the posts in Government departments/ public sector undertakings, autonomous bodies owned and controlled by the Central Government. But, so far as for appearance in the competitive examination in response to the advertisement issued by the Union Public Service Commission (UPSC) and by RRB, there is no such limit. Thus, it is not the policy of the Railway Board to prevent any of their employees to submit applications for higher grade posts advertised by the RRB and on the other hand, it is the policy of the Railways to encourage its employees to appear for competitive examination for the higher grade posts advertised by the RRB without any limit, obviously in the interests of both, i.e. the employees as well as the Railways. When such is the policy of the Railway Board, in our considered view, the Chief Operations Manager cannot prevent ALPs working in the SCR from appearing in the examination conducted for higher grade posts. Admittedly, the pay scale of the ALPs is only 3050 4590 and the post for which they have applied and obtained hall ticket carry the pay scale of Rs.5000 8000. Therefore, the ALPs wanted to improve their career prospects. Under those circumstances, there is no valid justification for the Chief Operations Manager to issue the impugned note without the approval of the Railway Board under the guise of likely disruption of movements of trains. The respondents relied on para 244 of IREC to justify the action of the Chief Operations Manager of South Central Railway in issuing the impugned note dated 17.6.2008. The very heading of the IREC 244 clearly shows that it is applicable only at the stage of forwarding of applications to another post in the Railway service or outside the Railways. That stage is already over in this case. Because admittedly all the ALPs have submitted their applications to RRB through their respective controlling officers and their applications were already forwarded along with NOC. Even at the stage of forwarding also the head of office/ department shall not ordinarily refuse to forward the application and that he can refuse permission only when he considers that the grant of permission would not be in consistent with the interest of public service. Here in the instant case, the advertisement issued by RRB is to fill up several posts of Junior Engineer Grade-II in the SCR. That may be the reason why the respective departments forwarded all the applications of ALPs to RRB. The power of refusal can be exercised only at the time of forwarding the applications under IREC 244 and not at the later stage. After the applications are duly forwarded to RRB and the RRB issued hall tickets, fixing the date of examination, the departmental head cannot withdraw the permission already granted. There is no provision in the IREM which empowers the department to withdraw the permission already granted. Even as per the Railway Ministry's decision extracted supra also, only in the case of applications submitted in response to open or public advertisement of vacancies by the international organizations and foreign Governments, prior permission of the cadre controlling authority is required and even in such cases when the time available for submitting the application is short, he may send his application to the concerned agency in advance with a copy to his cadre controlling authority and in such cases, the cadre controlling authorities would consider each case from the point of view whether the Railway servants could be spared or not and only in such cases, the discretion is given to the cadre controlling authority to grant or not to grant permission. But in other cases, especially in respect of applications submitted in response to the higher posts advertised by the RRB in the same SCR, forwarding of applications/ grant of permission to appear for the examination is only a formality. In our considered view, para 244 of IREC deos not empower the Chief Operations Manager to withdraw the permission already granted for its employees to compete in the competitive examination scheduled to be held by the RRB for the purpose of filling of the posts in the Railways.
14. Even if it is assumed that the Chief Operations Manager has got discretion to permit or not to permit its employees to appear for the examination, he is supposed to exercise his discretion in a judicious manner. He is expected to explore all alternatives before resorting to such an extreme step which invades into fundamental rights of its employees. Admittedly, the cadre strength of ALOs is more than 2000 and only 483 ALPs received hall tickets for appearance in the written examination scheduled to be held on 22.6.2008. It is also not disputed that only 721 ALPs are required for running the goods trains every day. It is also not disputed that the examination is only for 1= hours from 10.30 am to 12.00 noon. The ALPs who got hall tickets are from different divisions of the SCR. As seen from the replies filed on behalf of RRB, only 14605 candidates appeared for the written examination though they have sent hall tickets to 39207 candidates and the examination was conducted at several locations of Secunderabad and Hyderabad. Therefore, there was no difficulty for conducting the examinations at different locations at all the divisional headquarters to enable the inservice candidates of a particular division to appear for the examination at a nearest place and thereby minimise the time required for participation in the examination. By 17.6.2008, the Chief Operations Manager had information that 483 ALPs had to be relieved to enable them to appear for the examination scheduled to be held on 22.6.2008. Therefore, he had sufficient time to chalk out a plan in consultation with the RRB. According to the applicants, more than 400 out of 483 appeared for the examination on 22.6.2008 and there was no disruption of train movements on that day and hence anticipation of the likely disruption of movements of trains in the event of permitting 483 ALPs on 22.6.2008, is proved to be not correct. The said submission is not controverted. It is also not disputed that most of ALPs appeared for the examination by filing various kinds of leave and some of them were already on leave, obviously for preparation of the examination. Even if it is assumed that relieving of 483 ALPs to appear for the examination scheduled to be held on 22.6.2008 would have caused disruption of goods rail movements, heavens are not going to fall. Such dislocation if any, does not outweigh the fundamental rights of the ALPs to improve their career prospects. Further, the ALPs of other Railways and the inservice candidates of other departments of the SCR are not prevented from appearing for the examination, who also applied for the same post for which the ALPs applied. The ALPs are thus discriminated. Therefore, the action of the Chief Operations Manager in issuing the impugned note amounts to showing discrimination against a section of employees, viz. ALPs, which amounts to violation of Articles 14 & 16 of the Constitution of India.
15. The Hon'ble Supreme Court in the case of P. Venugopal Vs. Union of India reported in (2008) 5 SCC 1 observed in para 12 of the judgement that the Government servant entering into a Government service does not forgo his fundamental rights. On the other hand, because of his status as a person in public employment he acquires additional rights constitutionally protected and the State or public authorities are not entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status and that a person in public employment is endowed with a status not merely subjecting him to liabilities and obligation but also protecting him against any arbitrary, unreasonable and unequal treatment. In the instant case, the Chief Operations Manager without the authority of law and in violation of the policy of the Railway Board prevented a section of its employees, viz. ALPs from appearing for the examination scheduled to be held on 22.6.2008. the Hon'ble Supreme Court in a batch of writ petitions covered along with Benett Coleman and Co. Ltd. Vs. Union of India reported in AIR 1973 SC 106 observed at para 27 that every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. In the instant case, it is obvious that the impugned note causes prejudice to the interest of the ALPs as the said note deprives the ALPs to compete in the examination, though they have obtained hall tickets and their applications had been forwarded through proper channel to RRB. We are of the considered view that the impugned note issued by the Chief Operations Manager, is inconsistent with the policy of the Railway Board and it is also violative of Articles 14, 16 and 19(1) (g) of the Constitution of India and hence it is not sustainable in law. We are also of the view that the Chief Operations Manager of South Central Railway is not empowered to issue the impugned note dated 17.6.2008 withdrawing permission to all the ALPs to appear for the written examination as it is found that para 244 is not applicable in this case and as there is no provision empowering the Chief Operations Manager to issue such note which deprives the fundamental rights of its employees. Hence both points (i) & (ii) are found in favour of the applicants and against the respondents.
16. Point No. (iii):
The applications in OAs 366/ 2008 and 367/ 2008 were filed on 20.6.2008, i.e. prior to the conduct of the examination. This Tribunal passed an interim order on 20.6.2008 and the said order reads as follows:
Heard the learned counsel Mr. KRKV Prasad for the applicants and the learned standing counsel Mr. M.C. Jacob who took notice on behalf of the respondents.
2. The MA for filing single OA is allowed. Registry to register the OA.
3. Thee are four applicants before me who have applied for the post of Junior Engineer Gr.II (Drawing) in response to the notification dated 28.2.2008 against 25% vacancies under GDCE quota. Copy of the notification is enclosed as Annexure A-2 to the OA. The examination is scheduled to be held on 22.6.2008. The date and venue of examination and the details of the applicants has been given in para 4 (d) of the OA.
4. It is the grievance of the applicants that when the matter stood thus, the 3rd respondent, vide note dated 17.6.2008, a copy of which is annexed as Annexure A-1 to the OA, has advised that the competent authority has withdrawn the NOC Permission granted to 483 Assistant Loco Pilots, who have applied for the post of Junior Engineer Grade-II Examination, which is scheduled to be held on 22.6.2008, in view of the exigencies of service and to prevent disruption to movement of trains. It was further advised to notify the same to all concerned through Crew Control/ Lobby that any staff appearing for the examination will be liable for DAR proceedings.
5. The learned counsel for the applicants argued that the above note clearly shows that such instruction is discriminatory inasmuch as the candidates of other departments/ wings when they were allowed to appear for the examination, the applicants have been deprived of the opportunity to appear before the examination and thereby their right to consideration for promotion to the said post has been infringed.
6. Since this matter has been moved as lunch motion in the morning the learned counsel for the respondents is not aware of the latest position in the matter. However, on instructions, he submits that if 483 Assistant Loco Pilots are relieved, the Railway administration have to face difficulties in running the trains. It is also the contention of the learned counsel of the respondents that the Railway could not visualize that such problems will arise, which cannot be appreciated. It is expected that the officers should take adequate steps in appropriate time. They cannot take such plea. Every eligible candidate has a right to be considered. Once they have issued notification inviting the applications, suddenly withdrawing the passes of employees of particular category and directing them not to appear for the examination while allowing other candidates of other department/ wing, apparently amounts to discrimination.
7. However, as an interim measure, I direct the respondents not to take any disciplinary action, if any of the applicants before CAT in this OA appears for the examination scheduled to be held on 22.6.2008 and not to declare the results of the examination till the next date of admission hearing.
8. The points as to whether the respondents are justified in issuing such note/ instructions will be adjudicated after the reply is filed by the respondents. The respondents shall file a short reply two weeks. Matter be posted after two weeks. Similar interim orders were passed by this Tribunal in OA 367/ 2008 also. Therefore, several of the ALPs who received hall tickets gained courage to appear for the examination in spite of the impugned note dated 17.6.2008. We have found supra that the said note is not sustainable in law, as it is violative of fundamental rights of the applicants. Therefore, no disciplinary proceedings can be initiated against any of the applicants in all these OAs or for that matter against any of the ALPs who have appeared for the examination disregarding the impugned note which is found illegal and not sustainable in law. Thus, this point is also found in favour of the applicants and against the Railways.
17. Points (iv) & (v):
It is not disputed that the applications in respect of GDCE, the applications shall necessarily be forwarded through proper channel and if the applications are not so forwarded, the RRB need not act on those applications. Of course, in the instant case, only the applicants in OA 366/ 2008 applied for GDCE and the applicants in all other OAs applied in response to the general notification issued on 16.2.2008 issued by the RRB and none of the applicants in OA 366/ 2008 came out successful in the examination held on 22.6.2008. Therefore,e the question of insisting for fresh NOC in respect of the applicants appeared for GDCE does not arise. We are concerned only with those applicants who passed the examination in the competitive examination open for all, dated 22.6.2008, in respect of whom the RRB insisted for fresh NOC at the time of verification of documents on the ground that SCR withdrew the NOC earlier issued by way of impugned note dated 17.6.2008. As it is found supra that the impugned note is not sustainable in law. The RRB has to ignore the said note. The RRB is not empowered to insist for fresh NOC in respect of those whose applications have been duly forwarded. As seen from para 15 of the notification issued by RRB, the applicants who are serving Central/ State Governments including Railways who submit their applications through proper channel duly forwarded by their controlling officials but however, an advance copy of the application complete in all respects can also be submitted to RRB directly. It is not disputed that all the applicants in OAs 367/ 2008, 595/ 2008, 810/ 2008 and 827/ 2008 have submitted advance copies of their applications to RRB and the RRB processed their applications and issued hall tickets. The RRB, in its reply filed in OA 595/ 2008 stated that they received applications of the applicants 1 to 3 and 6 of OA 595/ 2008 through proper channel along with NOC and therefore, they have no objection to include their names in the final list. But, so far as the applicants 4 & 5 in OA 595/2008 though they received advance copies, they did not receive applications through proper channel. Therefore, their inclusion in the panel depends upon the result of this OA. The case of the respondents is that the application of the sole applicant in OA 810/ 2008 and the three applicants in OA 827/ 2008 were not forwarded to RRB and they also not issued NOC in respect of those applicants even after they passed the examination, in view of the impugned note dated 17.6.2008. The respondents 1 to 6 admitted that the applicants who passed the examination approached them for NOC stating that they passed the competitive examination and the RRB is insisting for NOC to be filed on or before 29.9.2008, but they could not issue the NOC in view of the impugned note dated 17.6.2008 issued by the Chief Operations Manager. The applicants 4 & 5 in OA 595/ 2008 have produced proof to the effect that they have submitted applications through proper channel as long back as on 10.3.2008 and received acknowledgements from their controlling officers and their respective controlling officers also forwarded to their next higher authority. Similarly, the applicants in OA 827/ 2008 filed the copy of the letter written by Senior Divisional Personnel Officer, Vijayawada dated 27.10.2008 wherein it is stated that 154 ALPs of Vijayawada have applied for the posts of JE-II and NOC was given to all the employees and that out of them four ALPs passed in the examination and they approached him for fresh NOC but it could not be issued in view of the impugned note dated 17.6.2008 issued by the Chief Operations Manager. Therefore, it is clear that the applications of all the three applicants in OA 827/ 2008 have already been forwarded along with NOC. Hence, the RRB is not empowered to insist for filing fresh NOC. RRB has to include the names of the applicants 1 to 3 in OA 827/ 2008 in the final list. So far as the applicants No. 4 & 5 in OA 595/ 2008 are concerned, their applications have been submitted as long back as in March 2008 to their respective controlling officers. But, somehow they did not reach the RRB but the RRB acted upon advance copies received from the applicants directly and issued hall tickets. The applicants appeared for the examination and they passed the examination. We have already observed supra that forwarding of application and issue of NOC is only a formality in respect of employees who applied in pursuance of the notification issued by RRB. When it is brought to the notice of the respondents of SCR that RRB is insisting for NOC alleging that their applications were not received through proper channel and requested for issue of NOC, the respondents ought to have issued the NOC. But, in view of the impugned note (which is now found illegal and liable to be set aside), the controlling officers refused to issue NOC and hence RRB could not include their names in the final list. In our considered view, all those ALPs who have passed the examination are entitled to be included in the final list of selection and that the respondents, SCR, have to issue fresh NOC to ALPs wherever required and they cannot deprive any of the ALPs who have passed in the examination, the higher grade posts. During the course of hearing, it is informed that out of 483, only 12 ALPs passed in the examination. Therefore, no inconvenience will be caused to the respondent railways to issue NOC in respect of those 12 ALPs who became successful in the competitive examination. The SCR is not entitled to withhold the NOC in respect of any of the ALPs who became successful in the competitive examination. Thus, these points (iv) (v) are found accordingly.
18. Point No. (vi):
The learned counsel for the respondents submitted that as the applicants in OA 366/ 2008 failed in the examination, there is no need to pass any further orders in this application. But the learned counsel for the applicants submitted that as in the impugned note it is mentioned that disciplinary proceedings would be initiated against those who appeared for the examination, this Tribunal has to pass orders to the extent of disciplinary proceedings. In view of the findings on points (i) to (iii), the respondents are not entitled to take any disciplinary proceedings against applicants in OA 366/2008 for their appearance in the examination. So, the OA 366/ 2008 is to be disposed of with a direction to respondents not to take any disciplinary proceedings against the applicants for their appearance in the examination held on 22.6.2008. Thus, this point is found accordingly.
19. Point No. (vii):
In view of the findings on points (iii), (iv) and (v), the applicants who passed in the examination, viz. A.M. Murali Krishna, applicant No.4; N. Rajendra Prasad, applicant No.5; and T. Prashanth Kumar, applicant No.6 in OA 367/ 2008 are entitled to be included in the final select list. All the applicants are entitled for a direction to the respondents not to initiate disciplinary proceedings against them. Thus, this point is found accordingly.
20. Point No. (viii):
In view of the findings on point No. (iv), there is no need for the applicants 1 to 3 and 6 in OA 595/ 2008 to produce their fresh NOC and their names have to be included in the final select list as their applications hae been duly forwarded along with NOC.
21. Point No. (ix):
In view of the finding on point No. (iv) (v), the applicants 4 & 5 in OA 595/ 2008 are also entitled for NOC from the SCR and RRB is liable to include their names in the final select list after receipt of NOC. The final list in respect of the posts for which the applicants 4 & 5 applied has to be revised for the purpose of inclusion of applicants 4 & 5.
22. Point No. 10:
In view of the findings on point No. (iii), the respondents are not entitled to take disciplinary action against any of the applicants in OA 595/ 2008 for their appearance in the examination on 22.6.2008. Thus, this point is found accordingly.
23. Point No. (xi):
In view of the findings on points (iv) and (v), the applicant in OA 810/ 2008 is also entitled for NOC to be issued by SCR and RRB is liable to include his name in the select list after completing the formality of taking NOC from the SCR. The final list prepared in relation to the posts for which the applicant in OA 810/2008 applied is to be revised for inclusion of the name of the applicant in OA 810/ 2008.
24. Point No. (xii):
In view of the findings on points (iv) and (v), all three applicants in OA 827/ 2008 are entitled for NOC to be issued by SCR and their names are to be included in the final select list after taking the formal NOC from the SCR. For that purpose, a final select list prepared in respect of the posts for which the applicants in OA 827/ 2008 applied is to be revised suitably to include the names of the applicants in the final select list. Thus, this point is found accordingly.
25. Point No. (xiii):
In the result the impugned note dated 17.6.2008 is quashed and set aside, and OA 366/ 2008 is disposed of directing the respondents not to take any disciplinary against any of the applicants in OA 366/ 2008 for their appearance in the written examination held by RRB on 22.6.2008. OA 367/ 2008 is disposed of directing the respondents not to take disciplinary action against any of the applicants herein for their appearance in the written examination held by RRB on 22.6.2008 and further directing the respondents to include the names of applicant No. 4, 5, and 6, viz. A.M. Murali Krishna, N. Rajendra Prasad and T. Prashant Kumar, in the final select list of higher grades posts for which they applied and passed the examination. OA 595/ 2008 is disposed of directing the respondents not to take any disciplinary action against any of the applicants for their appearance in the examination held by the RRB on 22.6.2008 and further directing the RRB to include the names of the applicants 1 to 3 and 6 in the final select list without insisting for fresh NOC and also directing the respondent railways to forward NOC in respect of applicants 4 & 5 within a week from the date of receipt of the order to RRB and also directing RRB to include their names in the final select list prepared in respect of the higher grade posts for which the applicants 4 & 5 applied and succeeded in the written examination, within one week after receipt of the NOC from the SCR authorities. OA 810/ 2008 is disposed of directing the respondent Railways not to initiate disciplinary proceedings against the applicant for his appearance in the written examination held by the RRB on 22.6.2008 and also directing the SCR authorities to forward NOC in respect of the applicant to the RRB within a week from the date of receipt of this order and RRB shall include the applicant's name in the final select list within a week after receiving the NOC and revise the final select list prepared in respect of the post for which the applicant applied and succeeded in the written examination. OA 827/ 2008 is disposed of directing the SCR authorities not to initiate disciplinary proceedings against any of the applicants and also directing the Railway authorities to forward NOC in respect of these three applicants within one week from the date of receipt of this order and the RRB is directed to include the names of these three applicants within one week thereafter by revising the final select list. There shall be no order as to costs.
( R. Santhanam) (P. Lakshmana Reddy)
Member (A) Vice-Chairman
Dated: 26th March, 2009