Central Administrative Tribunal - Hyderabad
Y Gangaiah vs South Central Railway on 8 May, 2024
OA 021/295/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/021/00295/2023, MA 256/2023, MA 261/2024 & MA 262/2024
with OA No. 020/367/2024
Reserved on: 02.05.2024
Pronounced on: 08.05.2024
CORAM :
HON'BLE DR. LATA BASWARAJ PATNE, MEMBER (J)
HON'BLE MS. SHALINI MISRA, MMEMBER (A)
OA No. 295/2023
1. R. Shivkumar s/o Kotaiah, aged about 32 years,
Occupation Track Maintainer IV, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Chityal r/o 8-1-244, Gollaguda, Nalgonda.
2. K. Mohan Reddy s/o K. Ravinder Reddy, aged about
33 years, Occupation Track Maintainer III, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Chityal r/o H.No. 3-17-3, Urban Colony Mamillaguda
Nalgonda.
3. Rekha Linga Raju s/o Guruvaiah, aged about 35 years,
Occupation Track Maintainer I, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Nadikudi r/o Jerribothulagudem (P), Chikur (M),
Suryapet District.
4. D. Ravinder s/o Babu Rao, aged about 37 years,
Occupation Track Maintainer I, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Nadikudi r/o 4-46, Matoor Post, Dubba Tanda,
Tripuraram (M), Nalgonda (D)
5. K.L.N.Raju s/o Naga Raju, aged 40 Years, Occupation
Track Maintainer II, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Piduguralla r/o H.No. 18-1223, Ashok Nagar,
Miryalaguda, Nalgonda.
6. Burri Balaiah s/o Lingaiah, aged about 32 years,
Occupation Track Maintainer II, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Nadikudi r/o H.No. 2-66, Anjannapalli (V),
Tripuraram (M), Nalgonda (D).
7. M. Ramesh s/o Krishnaiah aged about 31 years,
Occupation Track Maintainer IV, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
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Division, Sathenapalli r/o 4-60, Allapadu (V),
Bonakak (M), Khammam District.
8.D. Shankar s/o Hanumanthu, aged about 35 years,
Occupation Track Maintainer II, O/o Senior Section
Engineer/ P.Way, South Central Railway, Guntur
Division, Nadikudi r/o Appalagudem (V), Tripuraram
(M), Nalgonda (D).
9. Ravuri Naga Babu s/o Nageswara Rao, aged about 35
Years, Occupation Track Maintainer IV, O/o Senior Section
Engineer/ P.Way, South Central Railway, Secunderabad
Division, Kondapalli r/o Kondapalli village.
10. U. Satyanarayana s/o Shankaraiah, aged about 35 years,
Occupation Track Maintainer IV, O/o Senior Section
Engineer/ P.Way, South Central Railway, Secunderabad
Division, Dornakal r/o Bethurolu (V), Chilkur (M),
Suryapet District.
11. Gopi Chand s/o Sambassiva Rao, aged about 37
Years, Occupation Track Maintainer IV, O/o Senior Section
Engineer/ P.Way, South Central Railway, Secunderabad
Division, Madira r/o H.No. 5-2-246/2/2Musthafa Nagar,
Khammam.
12. P.Prabhakar s/o Saranaiah, aged about 35 years,
Occupation Track Maintainer I, O/o Senior Section
Engineer/ P.Way, South Central Railway, Secunderabad
Division, r/o Metalgunta (V), Nalkalu (M) Sanga Reddy (D).
13. G. Praveen Kumar s/o Chinna Babu, aged about 28 years,
Occupation Track Maintainer IV, O/o Senior Section
Engineer/ P.Way, South Central Railway, Vijayawada
Division, Bapatla r/o Ranga Raopet, Thotavaripalem(V),
Chirala (M), Baptla.
....Applicants
(By Advocate: Mr. K. Siva Reddy)
Vs.
1. Union of India, Rep. by the General Manager,
South Central Railway, Rail Nilayam, Secunderabad.
2. The Principal Chief Personnel Officer
South Central Railway, Rail Nilayam, Secunderabad
3. The Chairman, Railway Recruitment Cell,
South Central Railway, Rail Nilayam, Secunderabad
....Respondents
4. B. Mohan, S/o Ramulu, aged 38 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
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OA 021/295/2023
Ghatkesar, South Central Railway,
Secunderabad Division, r/o H.No.7-6-9,
Panagallu (V), Nalgonda (M), Nalgonda (D),
Telangana State
5. P. Ramesh, S/o Kanakaiah, aged 36 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Sirpur Kagaz Nagar, South Central Railway,
Secunderabad Division,
6. K. Narender, S/o Yadagiri,aged 36 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Mahabubabad, South Central Railway,
Secunderabad Division,
7. Bhanoth Suresh, S/o Lalsingh, aged 35 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Bhadrachalam Road, South Central Railway,
Secunderabad Division,
8. K. Rambabu, S/o Pyditalli, aged 34 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Kavali, South Central Railway,
Vijayawada Division,
9. G.Thrinadh, S/o Venkata Rao, aged 38 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Kakinada Port, South Central Railway,
Vijayawada Division
10. T. Sudhakar, S/o Somaiah, aged 40 years.
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Nizamabad, South Central Railway,
Hyderabad Division
11. M.Prasad, S/o Mallayya, aged 34 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Mancherial, South Central Railway,
Secunderabad Division,
12. G. Ramamohan Reddy, S/o Gopala Reddy,
aged 35 years, Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Kurnool Town, South Central Railway,
Hyderabad Division
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OA 021/295/2023
13. D.Shanker, S/o Lakpathi, aged 38 years,
Occ: Trainee Junior Engineer/P.Way,
O/o Senior Section Engineer/P.Way/
Chityal, South Central Railw
Guntur Division
...Respondents
(By Advocate: Mr. V. Vinod Kumar, Sr. PC for CG
Mr. K.R.K.V. Prasad for Respondents 4 to 13)
OA No. 367/2024
1. Y. Gangaiah, S/o. Y. Peddanna,
Aged 53 years, Occ: Track Maintainer I,
O/o. SSE /P.Way/O/JMDG, S. C. Railway,
Guntakal Division, Guntakal, AP.
2. Y. Nagireddy, S/o. Janaki Ram,
Aged 45 years, Occ: Track Maintainer I,
O/o. SSE /P.Way/Cty1, S. C. Railway,
Guntakal Division, Guntakal, AP.
3. D. Nagamohan Reddy, S/o. D. Devananda Reddy,
Aged 33 years, Occ: Track Maintainer 4,
O/o. SSE /P.Way/O/JMDG, S. C. Railway,
Guntakal Division, Guntakal, AP.
4. B. Thirupathi, S/o. Somila,
Aged 32 years, Occ: Track Maintainer II,
O/o. SSE /P.Way/MABD, S. C. Railway,
Secunderabad Division, Secunderabad, Telangana.
5. Ch. Kishan, S/o. Pochaiah,
Aged 32 years, Occ: Track Maintainer II,
O/o. SSE /PW/KZJ, S. C. Railway,
Secunderabad Division, Secunderabad, Telangana.
6. Bhukya Ramesh, S/o. Srinu,
Aged 35 years, Occ: Track Maintainer II,
O/o. SSE /PW/PGRL, S. C. Railway,
Guntur Division, Guntur, AP.
7. B. Vijaya Kumar, S/o. Hobanaik,
Aged 36 years, Occ: Track Maintainer III,
O/o. SSE /P.W/LPI, S. C. Railway,
Secunderabad Division, Secunderabad, Telangana.
....Applicants
(By Advocate: Mr. G. Pavan Murthy)
Vs.
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OA 021/295/2023
1. Union of India, Rep. by the General Manager,
South Central Railway, Rail Nilayam,
Secunderabad.
2. The Principal Chief Personnel Officer
South Central Railway, Rail Nilayam,
Secunderabad
3. The Chairman, Railway Recruitment Cell,
South Central Railway, Rail Nilayam,
Secunderabad
....Respondents
(By Advocate: Mr. K. Ravi Krishnakanth, Addl. CGSC)
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OA 021/295/2023
COMMON ORDER
(Pronounced by Hon'ble Dr. Lata Baswaraj Patne, Member(J)) OA No. 295/2023 has been filed challenging the legality and validity of the proceedings No. SCR/P-HQ/170(a)/JE/P.WAY/LDCE/Vol.IV dt. 18.04.2023 issued by the respondent No.2 wherein the respondents have deviated all Rules and norms in selecting the candidates to be promoted to the post Junior Engineer/P.Way and issued the select list and also contrary to No. SCR/P-
HQ/170(a)/JE/P.WAY/LDCE/Vol.II dt. 26.10.2020, apart from being arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India. The applicants sought a consequential direction to the respondents to select them to the post of Junior Engineer/ P.Way as per the notification in proceedings No. SCR/P- HQ/170(a)/JE/P.WAY/LDCE/Vol.II dt. 26.10.2020, with all consequential benefits.
2. Similarly, OA 367/2024 has been filed challenging the very same proceedings dt. 18.04.2023 issued by the respondent No.2.
3. Since the issue involved in both the OAs is similar, both the OAs were heard together and a common order is being passed. However, OA 295/2023 is taken up as lead case and the pleadings therein are referred to in this order.
4. The brief facts of the case as narrated in OA 295/202023 are as follows:
(i) The applicants were appointed as Track Maintainer by direct recruitment and subsequently, some of them were promoted as TM I, II and III. While so, the respondent No.2 issued notification dt. 26.10.2020 for filling up 53 posts of Junior Engineer/P.Way, with communal breakup of SC-8, ST-3 & UR-42, against 20% LDCE Quota. The eligibility criteria to compete for the said exam is that one should be from the category of Track Maintainer of all grades and Civil Engineering staff, viz., USFD Staff, Blacksmith, Hammerman, Welder, Moulder, 6 OA 021/295/2023 Aligner, Painter, Carpenter, etc. working on the P. Way side, with 3 years completed length of service as on the date of the notification.
(ii) It is the case of the applicants that, they being eligible, applied pursuant to the above notification. They submit that, as per para 4 of the notification, the selection consists of written examination with two Papers, followed by perusal of service record and the panel will be declared purely in the order of merit on aggregate only and those who secure 60% marks aggregate in both papers will be called for further action in selection. It is submitted that, there is no mention that marks have to be given for the service record and perusal of service record is only to verify as to whether any penalty imposed or charge memo is pending.
(iii) It is further submitted that the last date for receipt of application was 26.11.2020 and the same was extended till 31.08.2021 and by extending the time for such a long period, the respondents have made some ineligible candidates as eligible, which is not permissible under law. Even the examination originally scheduled on 11.01.2022 was cancelled and the examination was conducted on 11.06.2022 and the applicants were allowed to write the exam. The applicants were qualified in the examination and their names were shown in the list dt.
01.07.2022. Thereafter, the Respondent No.2 called for the Annual Performance Appraisal Reports (APARs) for the years 2019-20, 2020-21 & 2021-22, which clearly shows that the APARs of the qualified candidates were called for the years subsequent to the date of notification, which is impermissible in law and contrary to the instructions on the subject. It is submitted by the applicants that APARs have to be seen for the period of 3 years prior to the date of notification i.e. for the years 2017-18, 2018-19 and 2019-20. The respondent No.2 also called for APARs vide letter dt. 01.07.2022 i.e. subsequent to the notification, which is also contrary to law.
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(iv) It is further submitted that, Secunderabad Division issued subsequent notification on 07.09.2022 for selection to the post of JE/TRD of Electrical/TRD Department and on 26.08.2021 for filling up Technicians III posts under 25% LDCE quota, wherein, it was specifically mentioned about awarding of marks to the written examination and APARs and working report of preceding 3 years. Even in Samastipur Division of East Central Railway issued notification dt. 20.05.2022 for selection to the post of JE/P.Way wherein also, it is specifically mentioned that 30 marks are allowed for selecting the candidates. In the above two notifications, there was only one paper in the written examination, whereas in the present notification, there are two papers. Therefore, awarding of marks to the service record in the present selection is not only arbitrary, but also contrary to the notification.
(v) It is the further case of the applicants that they have performed well in the written examination and as per the Key, they scored about 180 and above marks out of 200 in both papers and they were legitimately expecting their selection, but, they could not find their names in the select list dt. 18.04.2023. On the contrary, those candidates who scored less in the written examination were selected. On enquiry, the applicants came to know that the selected candidates have good record as per their APARs and 30 marks were awarded for the service record, though they scored less marks in the written examination. It is the contention of the applicants that there is no mention in the notification about awarding of marks for record of service and the respondent No.2 ought to have finalized the selection as per the terms of the notification. Thus, the respondents adopted different methods in respect of similar selections, which smacks of non-application of mind, apart from being arbitrary, discriminatory and colourable exercise of power. 8
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(vi) It is further contended by the applicants that respondent No.2 has not assessed the record of service as per the instructions of the Railway Board vide RBE No. 45/2023, wherein it is specifically directed to award marks on overall performance. As per record, the respondents are awarding 5 marks on several heads and in total 40 marks are given for the overall performance. It is pointed out that one of the applicants got 40 marks, but he was given Very Good and for other candidate who was selected, though scored same 40 marks, Outstanding is given. The respondent No.2 with a mala fide intention and to help some candidates, have obtained the APARs after expiry of the period and the officers have colluded with the candidates. It is pointed out by the applicants that one of the applicants by name K. Mohan Reddy, though scored Very Good in all respects and scored 5 marks for overall grading, but the respondents have given him Good. However, the respondents have selected Babu Rao Kareti, Niraj Kumar, P. Naveen Nischal, though their record is not clear and one of them was awarded penalty. The applicants also submitted that the respondents have committed several irregularities in the selection process. The respondent No.3, who was entrusted to conduct the written examination, has violated all norms while conducting the written examination. Though several objections were raised on the preliminary key, without dealing with the same and the without releasing the final key, the respondent No.3 announced the final result, which is in violation of principles of natural justice. The respondents also deliberately did not fix the cut off marks to be eligible to be considered for promotion and thereby, the applicants were kept in dark in that regard. The select list announced by the respondents is not in accordance with law. Since selected candidates were not given appointment orders, they do not have any right to the post and as such, they are not necessary parties to the OA.
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5. On notices being issued, the respondents appeared through counsel and filed reply statement, wherein, inter alia, the respondents stated that,
(i) The CBT examination pursuant to the notification dt. 26.10.2010 was conducted for 2597 candidates on 11.01.2022, however, due to technical reasons, the CBT had to be cancelled on 20.05.2022 and re-examination for all the eligible candidates had to be conducted on 11.06.2022. The result of the examination was released on 01.07.2022, in which, 455 candidates had qualified and 450 candidates were found medically fit and other candidates were not medically fit. One candidate submitted unwillingness for selection and one employee did not attend medical examination due to unauthorised absence.
(ii) It is further stated by the respondents that while processing for next stage of selection i.e. perusal of records, some anomalies were found in the APARs of the employees, working in Level-1 Grade (Track Maintainer-IV) in view of introduction of new APAR format for the staff in Level-1 w.e.f. 2018-19. A clarification was sought from the Railway Board on 14.11.2022 stating that the APAR proforma for the purpose is designed only for awarding points ranging from 10 to 5 for 8 attributes under three sections B2, B3 and B4 of Section-B i.e. „Assessment of Performance‟, with a note that, total points (B5) will be „record of service‟ marks for assessment purpose. However, there is no „Overall Grading‟ column in the format. On thorough examination, the Railway Board issued instructions that the grading of B4 i.e. Overall performance in the APAR proforma for Level-1 employee may be taken for assessment purposes, where they are considered for promotion along with employees of higher pay scales and the field B5 has been done away with. Thus, the anomaly in APAR for Level-1 employees has been rectified vide RBE No. 45/2023. Thereafter, duly implementing the above instructions of the Board, a panel of 53 was published on 18.04.2023 and 10 OA 021/295/2023 training to all the selected candidates was commenced from 24.04.2023 for a period of one year.
(iii) The respondents stated that as per the Ministry of Railways instructions issued vide letter dt. 31.01.1990, the Zonal Railways and Units develop their own mechanism to suit their local conditions for conducting the selections and even in matter of range of establishments, which are covered under a seniority unit, differ from zonal railways to zonal railways and from divisions to divisions. It is stated that in para 4 of the notification dt. 26.10.2020, it is mentioned that "selection process consisting of written i.e. Paper-1 and Paper -2 followed by perusal of Service Records". In regard to the contention of the applicants vis-à-vis the notification issued by the Samastipur Division of East Central Railway, the respondents stated that the said Division is different from SC Division. While stating that Adra division of South Eastern Railway have mentioned different set of provisions in their notification for the post of JE/P.Way against the LDCE, the respondents have stated that each division and establishment can have its own system of issuing notification and there is no strict format in this regard.
(iv) In regard to the consideration of APARs, the respondents stated that latest APAR should be seen before assessing the suitability of an employee for promotion. On the contrary, if they are bound by the APARs prior to the date of notification and if the selection gets delayed, by 03 to 04 years, the present performance of the candidate on the basis of APARs for previous period cannot be assessed. The candidate has to be found fit based on the APAR grading at the time of actually being considered for promotion and that is possible if APARs for three completed years immediately after the declaration of written results are considered, as has been done in this case.
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(v) It is contended by the respondents that the notification was issued and selection was conducted as per the recruitment rules specified in Master Circular 31 as well as the practice/ procedure followed by the Railway and there is no deviation of notification as alleged by the applicants. Para 219 (j) of IREM specifically laid down various factors for awarding marks in General selections, like the present selection and their relative weight, is as under:
Factors/ Heading Maximum Marks Qualifying Marks (1) Professional ability 50 30 (2) Record Service 30 - Total 80 48 (vi) It is further submitted that the Railways have adopted a procedure regarding
allotment of marks for APARs, circulated vide Serial Circular No. 163/1986. The guidelines for awarding marks on APARs for the last three years have been issued by Railway Board vide letter dt. 10.06.2002, reiterated vide letter dt. 22.08.2007 and the distribution of marks for evaluation of record of service is as below:
(a) Annual Confidential Report/ Working Reports of last three years - 15 marks
(b) Entries of Awards/ Punishments in Service Register - 10 marks
(c) Entries of Academic/ Technical Qualifications In Service Register - 5 marks
(vii) It is submitted by the respondents that in terms of para 219 (j) (ii) of IREM circulated under ACS slip No. 209, vide Railway Board letter dt. 19.06.2009 (Serial Circular No. 95/2009), the final panel in the case of general selections should be drawn up in the order of merit based on aggregate marks of professional ability of record of service and a candidate must secure a minimum of 60 marks in professional ability and 60 marks in the aggregate for being placed in the panel and there is no classification of candidates as Outstanding. It is submitted that the applicants have qualified in the written examination. It is stated that as per letter 12 OA 021/295/2023 dt. 09.04.2002, latest APARs to be considered, but not those before the date of notification, as contended by the applicants. The respondents also quoted para 11 -
Note (7) of the Railway Board instructions vide RBE No. 272/1999, wherein it is mentioned that "consideration of the candidates without the availability of the latest confidential reports or complete service records is not in order."
(viii) It is submitted that, the Railway Board vide RBE No. 137/2003 dispensed with the system of viva-voce and that the selections are to be finalized by holding written examination and perusal of records of the employees and therefore, after the declaration of written test, the APARs of the last three years of those qualified candidates are required to be called for along with the service register, DAR clearance for assessment of record of service and for finalization of selection by the selection board and the drawal of the panel. Accordingly, services records i.e. service registers and the APARs for the last three years viz., for the periods 2021- 22, 2020-21 & 2019-20 along with DAR clearance were called from the Divisions. In respect of the allegation of the applicants regarding grading in APAR of the applicant No.2 i.e. Sri Mohan Reddy, the respondents submitted that the grading given by the reporting officer has been revised by the Reviewing Officer as „Good‟, which is final. The marks awarded to some employees, referred to by the applicants, are given by the respondents in the reply as under:
APAR Grading Name 2019-20 2020-21 2021-22 Remarks Grading Marks Grading Marks Grading Marks Babu Rao Kareti Very 04 Very 04 Very 04 DRM Good Good Good Award 2021 Niraj Kumar Marks-4 04 Good 03 Very 04 DRM Good Award 2022 P. Naveen Very 04 Marks-5 05 Marks-4 04 Minor Nischal Good Penalty upto 2020 13 OA 021/295/2023
(ix) It is submitted by the respondents that the impugned selection is conducted based on the instructions applicable and as per the Rules or the procedure which has been followed scrupulously without any deviation. In respect of the APARs, if at all the applicants are aggrieved, the applicants have to submit to the Memo dt.
01.07.2022 which was published very widely. Move over, the notification dt. 26.10.2020, it is clear on the selection process, consisting of written examination with Paper I and Paper II, followed by perusal of Service Records. Marks have been awarded for confidential average, as per the serial circular No. 117/2002 dt. 10.07.2002 for considering the records of service, maximum 30 marks will be awarded, which will be distributed in three sub-heads viz., 15 marks on the basis of grading of ACRs/ work report of last three years; 10 marks on the basis of entries of awards/ punishment in service register, and 5 marks on the basis of entries in service register on academic / technical qualifications and the marks will be added to the score obtained in the written examination and the merit list has been prepared accordingly. Mere inclusion of the name of the applicants in the result will not give them any right to seek for appointment or their names are to be included in the select list.
6. By way of intervening applications, some of the private respondents have appeared and filed their detailed reply and raised similar objections, supporting the stand taken by the official respondents. The private respondents further contended the OA has to be dismissed on the ground of non-joinder of necessary parties to the OA alone and the stated that the applicants have approached and challenged the order of selection, but they have not made the selected candidates as party respondents. Further, the applicants have not challenged the notification dt. 26.10.2020 as well as the Memo. dt. 01.07.2022. Rules in line are very clear and there is no ambiguity on the subject.
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7. The refute the said contentions, the applicants have filed rejoinder reiterating their stand.
8. Heard both the sides and perused the pleadings on record. Learned counsel for the parties argued on the lines of their respective pleadings.
9. Learned counsel for the applicants submits that the words mere perusal of the service record will not give any right to the respondents to award marks for APARs/ACRs in the absence of clear wording in the notification. Learned counsel for the applicants further contended that mere selection will not confer any right for appointment/ promotion and when the entire selection has been vitiated per se, which is against the Rules in the line, there is no need at all to add the selected candidates as party respondents. The learned counsel for the applicants further contended that the recent notification issued by the same respondents as well as the other Zones for such examination are very clear in respect of APAR/ACR period and there is no ambiguity. In fact, the respondents have improved their notification, which can be seen from the recent notification.
To justify the action of the applicants in not adding the selected candidates as party respondents, learned counsel for the applicants cited certain judgments.
10. Learned counsel further argued on the point that the respondents have allowed the candidates to improve their qualification to fulfil the criteria of the notification which was in fact not permissible and for that, they have raised objection and a Vigilance Inquiry is going on. Learned counsel further contended that when notification was issued, if at all, ACR/APAR has to be considered, then preceding 3 years‟ ACRs/APARs have to be called for i.e. prior to written examination. The said record of ACRs/APARs has to be made available to the concerned Department and the same has not been followed by the respondents in 15 OA 021/295/2023 the present selection. Just to deny the right of promotion/ appointment to the applicants to the post of Junior Engineer, the respondents acted in hand-in-glove with the selected candidates to improve their APARs and educational qualifications and denied promotion/ appointment to the applicants though they are more meritorious than the private respondents.
11. Learned counsel for the applicants, in support of his contention that the terms of the notification have to be followed scrupulously, relied upon the judgment of the Hon‟ble Supreme Court in Bedaga Talukdar v. Saifudaullah Khan & Ors in IA No. 5-8 in Civil Appeal Nos. 8343-8344 of 2011, dt. 28.09.2011, wherein it has been held as under:
28. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement.
In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
29. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India."
12. On the other hand, learned counsel for the official respondents vehemently opposed the submissions of the learned counsel for the applicants as well as the 16 OA 021/295/2023 relief sought on the ground that impugned selection is conducted based on the instructions applicable and as per the Rules or the procedure which has been followed scrupulously without any deviation. It is further argued that mere inclusion of the applicants‟ named in the result will not confer any right for appointment/ promotion.
13. Learned counsel for the private respondents also submitted as that the notification dt. 26.10.2020 as well as the final select list dt. 18.04.2023 are as per rules. It is further argued that the impugned selection is conducted based on the instructions applicable and as per the Rules or the procedure which has been followed scrupulously without any deviation. In respect of the APARs, if at all the applicants are aggrieved, the applicants ought to have responded to the Memo dt. 01.07.2022 which was published very widely. Move over, the notification dt. 26.10.2020 is clear on the selection process, consisting of written examination with Paper I and Paper II, followed by perusal of Service Records. As the applicants were qualified in the written examination, their record of service was also called for from the divisions along with other qualified candidates and mere qualifying in the written examination does not give any prescriptive right and the same was also duly brought to the notice of all the qualified candidates vide memo dt. 01.07.2022. It is further argued that after participating in the entire process of selection, the applicants cannot challenge the same only after they being not selected in the final select list.
14. It is to be noted that the notification has been issued on 20.10.2016 with the following eligibility conditions:
"2(i) Staff Eligible for selection: Should be from the category of Track Maintainer of all grades and Civil Engineering staff, such as USFD Staff, 17 OA 021/295/2023 Blacksmith, Hammerman, Welder, Moulder, Aligner, Painter, Carpenter etc. working on the P.Way slide.
(ii) Length of service: Should have working on the P. Way side and have completed 3 years of railway service as on the date of notification.
(iii) Educational qualification: Should be in possession of educational qualification of
(a) 10+2 pass with at least three subjects out of Maths, Physics, Chemistry and Computer Science OR
(b) Diploma in Civil Engineering/ Civil Engineering (Transportation) (Diploma should have the recognition/ affiliation of AICTE)."
15. The private respondents, who have already completed 11 months of their training because of the court‟s stay, postings have not been given. It is also to be noted that arguments were advanced by the private respondents that latest ACRs will always prevail, and accordingly, the respondents have considered the latest APARs and marks have been awarded.
16. It is also to be noted that the Railway Board issued Guidelines on 20.10.1999 for Personnel Officers and Members of the Selection Boards constituted for conducting selection for promotion to the post of classified „Selection‟, wherein, guidelines are issued as to when to initiate selection process, etc. Para 2.2 of the said Guidelines reads thus:
"2.2 A calendar of selections is to be maintained by every Railway/ Division/ Selection conducting unit. This calendar is to be prepared and notified preferably in the month of July of the preceding year. The calendar should contain the following items:
Category and Grade, Date of issue of notification;
Date of calling of service records;
Date of holding of written exam;
Date of holding supplementary examination;18
OA 021/295/2023 Dates of holding interview;
Date of obtaining approval of competent authority and Date of notification of panel.
Clause 11 of the said Guidelines deals with Evaluation by the Selection Board in the Viva-voce. Note (7) under Clause 11.3 reads thus:
"Consideration of the candidates without the availability of the latest confidential reports or complete service records is not in order."
Clause 11.4 deals with Award of Marks by the Selection Board and clause 11.4.2 reads thus:
"Marks are to be awarded by the Selection Board under the following head:
PROFESSIONAL ABILITY: Written - 35
Viva-Voce - 15
In the case of no written test and only viva- - 20
voce:
Personality, address, leadership and academic - 20
qualification:
Record of service : - 15
Seniority : - 15
Other relevant clauses of the guidelines are extracted as under:
Clause 11.4.2.3 - RECORD OF SERVICE 11.4.2.3.1 Confidential Reports for the last three years are to be considered.
Marks are to be awarded depending upon the grading. Though the Railway Board have issued mandatory orders Board, the following marking pattern for assessing the CRs can be followed:
Average - 2 marks
Good - 3 marks
Very Good - 4 marks
Outstanding - 5 marks
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11.4.2.4 SENIORITY
11.4.2.4.1 The senior most candidate called for viva should be awarded the
maximum marks of 15 and the junior most the minimum of 5. Marks for the remaining candidates should be proportion to following this pattern.
NOTE: The minimum marks to be awarded to the junior most candidate may vary from Railway to Railway as per the local instructions. It is not the intention to disturb the same.
11.5 ELIGIBILITY FOR EMPANELMENT 11.5.1 An employee must secure not less than 60% (30 out of 50) in the professional ability and not less than 60% in the aggregate to be eligible to be empanelled.
(Note (iii) below PARA 219 (g) of IREM) NOTE: Even if a candidate secures 60% in overall aggregate but does not secure 60% in professional ability and viva-voce, he cannot be included in the panel.
11.5.2 The names of candidates selected for empanelment should be arranged in the order of seniority. Those securing 80% marks or more in the aggregate should be classified as outstanding and allowed to supercede 50% of the number of his seniors in the field of eligibility.
(PARA 219(i) of IREM)
17. On a bare perusal of the said Rules, one can understand that a criterion for selection has to be maintained by the Railways/ Division/ Selection Conducting unit, which contains category and grade, date of issue of notification, date of calling of service record, date of holding of written examination, date of holding supplementary examination, date of holding interview, date of holding of interview (now deleted), date of obtaining approval of competent authority, date of notification of panel. As per the Board‟s letter vide RBE No. 157/88 dt.22.07.1988, it shows that before the date of holding written examination, service 20 OA 021/295/2023 record will be called. It means that last 3 years ACRs/ APARs prior to notification will be considered. Even though completion of the entire selection process has taken time or longer time, the authority can consider the latest ACRs, if any penalty has been ordered or imposed or to consider the conduct of the employee. But, it will not affect the performance of the candidate when he appeared and participated in the said notification for selection. Similar ratio has to be followed as in the matter of Departmental Promotions in line with the observations of the Hon‟ble Supreme Court in the matter of Union of India v. KV Janki Raman 1991 AIR 2010 to assess the candidates‟ performance for promotion.
18. It is also to be noted that though the DOPT guidelines are not binding upon the Railways, but when notification has been issued as per the Board‟s letter dt. 27.02.1988 prior to written examination, service record has to be there with the authority. In support of the submissions not to make selected candidates as parties though the said selection has been impugned, learned counsel for the applicants has cited the judgment of the Hon‟ble High Court of Gujarat at Ahmedabad in C/LPA No. 1496/2019 in the matter of Kanubhai Ramsingbhai Hathila v. State of Gujarat, dt. 18.01.2021, wherein, after relying various authorities, it has been held as under:
"34. In our considered opinion, this finding/observation of the learned Single Judge is not correct. Mere declaration of results does not confer any right on a candidate whose name is included in the select list to seek appointment. Admittedly, the final results had not been declared and appointment letter had not been issued. The candidates were only being called for document verification and it was only after document verification that the final list would be declared and appointment letters would be issued. The learned counsels for the appellants are right in submitting that as a matter of fact the petition itself at the behest of the candidates whose names were included in the final select list would not be maintainable challenging the decision of the Selection Committee. The Selection Committee would be well within its right to even cancel the entire selection after declaring the results so long as the appointments were not issued. It is only after issuance of the appointment letters that the selected candidates may claim right of being appointed but not prior to that stage. Law is well settled on this point. Reference may be had to the following decisions:-21
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(i) Commissioner of Police v. Umesh Kumar, reported in 2010 (10) SCC 448 :
"19. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB v. Malkiat Singh [Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22 : 2006 SCC (L&S) 235] , this Court held that the mere inclusion of candidates in a selection list does not confer upon them a vested right to appointment. The Court held: (SCC p. 26, para 4) "4. ... the High Court [Malkiat Singh v. Punjab SEB, 1999 SCC OnLine P&H 75 : ILR (1999) 2 P&H 329] committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 :
1991 SCC (L&S) 800] which reads:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488], Neelima Shangla v. State of Haryana [Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122 : 1985 SCC (L&S) 174] .'"
(emphasis in original)
20. In the present case, after the name of the respondents appeared in the results declared on 17- 7-2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer-key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1-2- 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment."22
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(ii) State of Orissa v. Rajkishore Nanda, reported in 2010 (6) SCC 777 :
"14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : AIR 1991 SC 1612] held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination."
19. Learned counsel for the applicants submitted that latest ACR prior to notification has to be considered and in support of the said contention he has cited the Judgement of the Bangalore Bench of this Tribunal in OA 170/01843/2018 dt. 27.11.2019 and the relevant observation is as under:
"6. We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. The issue in this case is in a very small compass. The notification for filling up of the post of Junior Engineer was issued vide Annexure-A1 dtd. 4.1.2017. This Tribunal has held in any number of cases that the crucial date of notification will decide the further issues regarding the records to be verified, the APARs to be judged and the penalties to be considered etc. when any employee is considered eligible for promotion based on written examination etc. The respondents have admitted that the applicant has passed the written examination and qualified for being considered for promotion. Therefore, they cannot now take a plea that the result of the examination was published on 21.08.2017 and therefore they have taken the APARs for the years i.e. 2014-15, 2015-16 & 2016-17 into consideration. As already noted the notification was issued on 4.1.2017 and therefore, the respondents should have considered only the APARs for the years 2013-14, 2014-15 & 2015-16 since the year 2016-17 was not over and their contention that 9 months' period has already been over in the concerned year has no merit. In fact, vide Annexure-R2, there have been many cases which have not been considered since those persons did not complete 3 years of service as on 4.1.2017. The respondents cannot be having different procedures and different benchmarks based on their own convenience. The applicant is definitely eligible to be considered for promotion based on the records of 2013-14, 2014-15 & 2015-16 and the respondents are directed to examine the same within one month and if necessary examine the records of the selected persons vide the notification dtd. 10.10.2017 and take appropriate decision accordingly. In case the applicant also qualifies to be promoted, the respondents shall issue necessary orders of promotion within a period of one (1) month of the above consideration. Since the persons already selected are not in the party array, 23 OA 021/295/2023 it is the responsibility of the respondents to protect their promotion while at the same time ensuring that the applicant is given due consideration based on the records for the past 3 years and his written examination marks vis-à- vis the other candidates."
20. The learned counsel for the respondents argued on the point that the respondents are not bound by the Memorandum issued by the DOPT and in support of this contention, the respondents relied upon the judgment of the Hon‟ble Supreme Court in Civil Appeal No. 9176 of 2018 in the matter of Prabhat Ranjan Singh & Anr v. R.K. Kushwaha & Ors, dt. 07.09.2018, wherein it has been observed as under:
"25. In view of the above, there can be no manner of doubt that the Railways is not bound by the memorandum issued by the DOPT and are empowered to frame its own rules to lay down the service conditions of its employees. We also hold that the IREM has statutory force and has been issued in exercise of powers vested under the proviso to Article 309 of the Constitution."
21. Learned counsel for the respondents also cited the judgment of the Hon‟ble Supreme Court in the State of Uttar Pradesh v. Karunesh Kumar & ors in Civil Appeal Nos. 8822-8823 of 2022 dt. 12.12.2012
32.The respondents have also placed reliance on the decision of this Court in the case of K. Manjusree (supra). However, in our considered view, the facts of the aforesaid decision are quite different from the present case. A change was introduced for the first time after the entire process was over, based on the decision made by the Full Court qua the cut off. Secondly, it is not as if the private respondents were non- suited from participating in the recruitment process. The principle governing changing the rules of game would not have any application when the change is with respect to selection process but not the qualification or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job.
22. The Hon‟ble Supreme Court further observed that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or 24 OA 021/295/2023 conveyance or order. This rule is apiplied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
23. Learned counsel for the private respondents submitted that it is not open to the candidates after participating in the selection to challenge the result after being declared unsuccessful and in support of his contention, he has cited the judgment of the Hon‟ble Supreme Court reported in (2017) 4 SCC 357 in the matter of Ashok Kumar & Another vs. State of Bihar & Others and the relevant observations are as under:
"13 The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar (2007) 8 SCC 100, this Court held that :
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil6 and Rashmi Mishra v. M.P. Public Service Commission (2006) 12 SCC 724)."
24. The stand taken by the learned counsel for the applicants on the point that the grading of APARs and inclusion along with written examination marks is not permissible and the same is against the notification, is rejected on the point that the applicants themselves have participated in the selection and have not challenged the Memo or the notification in respect of the perusal of the APARs as per the Railway Board Rules.
25. On the point that APARs/ACRs have been prepared after declaration of the results of the written examination and such grading was given to some selected candidates so that they can come up in the merit has been considered with the 25 OA 021/295/2023 Statement submitted by the respondents, showing the details regarding APARs of the candidates including the applicants for the years 2020 & 2022. It is seen that in the APARs for the year 2020 & 2022, most of the time, the date of APAR is not mentioned, however, grading has been given, in numerical 5, 4 as well as Very Good or Outstanding. From the said chart furnished by the respondents, one can observe that if such grading has not been given by the respondents, there must be a tie between the selected candidates and the applicants. The another allegation of the applicants that most of the candidates joined with some qualification, however, they have been permitted to improve their qualification against the guidelines given in the prospectus of APOSS/TOSS "persons who have already passed intermediate/XII from any other board/ other states should not enroll for intermediate course for any reason. On the contrary, if any one enrolls and passes intermediate (APOSS/TOSS) suppressing the information that they have already passed intermediate from other board their intermediate pass certificate will be canclled". So acquiring such qualification (10th or 12th) again from open schooling is not permissible as per the above norms and it is nothing but suppression of facts by the employee in order to gain promotioal opportunity for the post of JE/P.Way. Hence, against the said complaint, investigation has been conducted and during the vigilance investigation against the complaint in respect of selection of JE/P.Way under 20% LDCE quota, which was held during the years 2022 & 2023, it has come to light that few of the candidates i.e. Track Maintainers who were having qualifications i.e. Graduation/ Post Graduation at the time of their appointment, subsequently obtained Intermediate through open school society (either APOSS or TOSS) in order to get eligibility to the post of JE/P.Way under LDCE quota, whose names are mentioned in the confidential letter dt. 01.04.2024. 26
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26. A bare perusal of the said Vigilance report as well as the statement showing the details of the record of APARs for the years 2020 & 2022, which were considered against the subject notification dated 26.10.2020, the action of the respondents is not justified and the same is against the Railway Board Circulars/ letters. Hence, the impugned selection is liable to be quashed and set aside and is accordingly quashed and set aside.
27. Further, the respondents are directed to review all the empanelled employees„ cases and corrective action may be taken quoting the observation of the APOSS/TOSS that persons who have already passed Intermediate/XII from any Board / other States are not permitted to enroll for Intermediate course for any reason and thus, acquiring Intermediate qualification again from Open School Society is not permissible, as per the instructions laid down by the Open School authorities and that in the future notifications it should be clearly mentioned that "If employees acquire Intermediate qualification again with MPC combination through Open Schooling system, their candidature will not be considered." A column may also be be provided in the application where the employee should declare that he has not acquired Intermediate Qualification (Class 12th) again under open schooling system.
28. The respondents shall review the selection panel of all the candidates whose names are referred to in the confidential letter dt. 01.04.2024 as well as followed with the direction of the Bangalore Bench, CAT in OA No.170/01843/2018, to the effect that APARs for the last 3 years prior to both the 2020 & 2021 notifications should be called and looked into for awarding the marks. The respondents are at liberty to consider the performance of the candidates after 2020 in respect of the punishments/ penalties. The said exercise has to be carried out within three months from the date of receipt of this order.
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29. The OAs are allowed in part with the above directions. Consequently, pending MAs shall stand closed. No order as to costs.
(Shalini Misra) (Dr.Lata Baswaraj Patne)
Member (A) Member (J)
evr
28