Central Administrative Tribunal - Kolkata
Ratan Lal Das vs N E F Railway on 12 June, 2019
Central Administrative Tribunal
Kol^cata Bench, Kolkata
O.A. N0.476/2014
Wednesday, this the 12th day of June 2019
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Sri Ratan Lai Das
Son of late Ramesh Chandra Das
Working as D/TCH Grade I/E
Northeast Frontier Railway at Siliguri
Diesel Shed and residing at Patel Road
Bye Lane, PO Pradhan Nagar, Siliguri
District - Darjeeling, PIN 734003
..Applicant
(Mr. N Roy, Advocate)
Versus
1. The Union of India through the General Manager
Northeast Frontier Railway, Maligaon
Guahati, Assam, Pin 781011
2. The Chief Personnel Officer
Northeast Frontier Railway, Maligaon
Guahati, Assam, Pin 781011
3* The Divisional Railway Manager
Northeast Frontier Railway
Katihar, Bihar, Pin 854105
4* The Senior Divisional Mechanical Engineer
E M D/B G Diesel Shed, Siliguri Junction
District - Darjeeling, Pin 734003
5* The Senior Section Engineer, IG
Electrical/Diesel, Siliguri Junction
District - Darjeeling, Pin 734003
6. Sri Mukesh Pandey
Working as D/Tech/II/Elect
N F Railway under Sr. Section Engineer, Siliguri
..Respondents
(Mr. B Chatterjee, Advocate for respondent Nos. 1 to 5,
Mr. S K Das, Advocate for respondent No.6)
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y ORDER (ORAL)
/ The applicant is working as Technician Grade I in the r Northeast Frontier Railway. The respondents initiated steps for appointment to the post of Junior Engineer. The procedure 1 involved holding of a written test for the eligible Technicians and consideration of the service records. The applicant and various others were considered for that purpose. A written test was conducted on 02.02.20n, and 22 eligible candidates were empanelled, through memorandum dated 17.06.2011. The applicant figured at SI. No./. However, in the final selection list, that was published on 14.03.2014, the name of the applicant did not find place. One Mr. Mukesh Pandey (respondent N0.6), who was junior to the applicant by many places, was selected and appointed.
2. The applicant sought information by filing an application under Right to Information Act, 2005. It was revealed that the applicant secured 56 marks, whereas the private respondent No.6 (Mukesh Pandey) secured 55 marks in the overall assessment. This O.A. is filed challenging the action of the Railways in not selecting the applicant, despite his having secured more marks than the private respondent N0.6, and with a prayer to direct the respondent - Railways to appoint him on the basis of the marks secured by him in the written test held on 02.02.2011. Other ancillary reliefs are also prayed.
3f-T' :teP .f & The respondent - Railways filed counter affidavit 3- ■■v.
/ opposing the O.A. It is stated that the selection process involved / wy conducting of written test and evaluation of service records and in the process, the applicant secured 56 marks, whereas the private respondent No.6 (Mukesh Pandey) secured 55 marks. It is stated that private respondent No.6 was selected in view of his place in the merit list.
4- The O.A. was heard at length on the previous occasion and was disposed of through an order dated 11.12.2015, with a direction to the administration to re-evaluate the answer scripts of the selected candidates and to arrive at a proper conclusion regarding the consequential process of selection of the candidates, leaving no room for any further complication in the matter. The fact that it was the third round of litigation in connection with the selection process, was also taken note of. 5- One Mukesh Pandey filed WPCT No.62/2016 before the Kolkata High Court challenging the order in O.A. His grievance was that without impleading him in the O.A. directions have been issued in order dated 11.12.2015, which has adversely affected his rights. The WPCT was allowed on 08.04.2016, on the short ground that Mukesh Pandey was not impleaded as party. The matter was remanded to the Tribunal for fresh consideration. Mukesh Pandey was impleaded as party respondent N0.6. 4 Vv •;/■ 6. A Division Bench comprising Hon'ble Mrs. Manjula Das, Member (J) and Hon'ble Dr. Nandita Chatterjee, Member (A) * heard the O.A. in detail. The respective Members differed in their conclusions. While the learned Member (J) opined that the O.A. deserves to be dismissed on the ground that the applicant did not challenge the panel / modified result dated 05.03.2014, whereby Mukesh Pandey has been declared qualified and recommended for promotion on merit basis, learned Member (A) took a view that there were serious defects in the evaluation of service records of the applicant and opined that the applicant can make a representation in this behalf, and depending upon the result thereof, a fresh panel shall be published, allotting the applicant his due position therein.
7- In view of this difference of opinion, the matter is heard by me. I heard Mr. N Roy, learned counsel for applicant, Mr. B Chatterjee, counsel for respondent Nos. 1 to 5 and Mr. S K Das, counsel for respondent No.6, at some length.
8. The facts pertaining to the O.A. have been stated briefly in the respective orders passed by the learned Members and they are further elaborated in the preceding paragraphs. Hence, it is not necessary to repeat them. The reliefs claimed in the O.A. read as under:
"(a) To issue direction upon the respondents to give promotion to the applicant according to the seniority basis for the post of JE-II/Diesel/Mech./Elect Inter apprentice forthwith.
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(b) To issue further direction upon the respondents to give promotion to the applicant according to the written test which was held on 2.2.2011, the applicant got highest y marks to Sri Mukesh Pandey. So the applicant's 1* promotion may be given for the post of JE-II/D/Mech./ Elect Inter apprentice.
(c) To produce connected departmental record at the time of hearing.
(d) Any other order or orders as the Ld. Tribunal deem fit and proper."
9. From this, it becomes clear that the applicant rested his relief more on his performance in the written test held on 02.02.2011. He neither prayed for re-evaluation of his service records, nor did he seek any relief vis-a-vis award of marks to private respondent No.6. Though extensive arguments are advanced on both counts, it becomes difficult to grant any relief in view of the fact that they were not made part of the O.A. In the O.A., as it stands now, it becomes difficult to grant any specific relief in terms of the prayer. The arguments, that are advanced during the course of hearing, both as regards evaluation of service records of the applicant and award of marks to the private respondent N0.6, are certainly in the context of selection to the post in question. However, in the absence of a representation made by the applicant in this behalf, there was no occasion for the Railway Administration to address the core issues.
10. It may be true that the appointments have been made and in the ordinary course of things, the panel has already elapsed. The mere fact that the panel has since elapsed, does not make 6 :» ■? much difference. The applicant was included in the panel at the initial stage and lost his chance of his being appointed as Junior f/ ¥ Engineer only by one mark. If it ultimately emerges that he was entitled to be awarded two marks or more, and the 6th respondent was awarded one mark in excess of his entitlement, the entire picture would undergo a change. If illegality has crept into the selection process, it cannot be perpetuated, merely on technicalities. At the same time, the procedure prescribed by law needs to be followed. It is, therefore, felt that the applicant can be permitted to make a representation, ventilating his grievance, both as regards re-evaluation of service records' and about marks that have been awarded to 6th respondent, duly enclosing the relevant material and stating the relevant terms. n. Therefore, the O.A. is disposed of leaving it open to the applicant to make a representation to the respondent Nos. 2 & 3, narrating his grievance about evaluation of his service records and award of marks to 6th respondent.
12. In view of the fact that the third Member, i.e., Chairman, concurs with the view expressed by learned Member (A) to a large extent, the O.A. shall stand disposed of, leaving it open to the applicant to make a representation to respondent Nos. 2 & 3, narrating his grievance about evaluation of his service records and award of marks to 6th respondent, within four weeks from today. The respondent Nos. 2 & 3, in turn, shall take necessary steps in '"V 1 • ,•/ • .?
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--y accordance with law by calling for the records and if it emerges •V that the applicant is awarded any marks over and above what he y was awarded to him earlier or if the 6th respondent is found to have been awarded marks in excess of his entitlement, necessary consequential steps shall be taken in relation to the selection to the post of Junior Engineer. It is needless to mention that if the proposed steps adversely affect the rights of any selected candidates already selected and appointed, they shall be put on notice. This exercise shall be completed within three months from the date of receipt of representation from the applicant.
There shall be no order as to costs.
s ( Justice L. Narasimha Reddy ) Chairman June 12. 2Q1Q /sunil/ /