Central Administrative Tribunal - Jabalpur
Amit Kumar Awasthi S/O Shri P.N. Awasthi vs Union Of India Through Chairman on 31 October, 2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.816 of 2009
Jabalpur, this Thursday, the 31st day of October, 2013
HONBLE SHRI JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
Amit Kumar Awasthi S/o Shri P.N. Awasthi,
aged about 33 years, R/o 85/64, Tulsi Nagar,
Near Jawahar Bal Bhavan, Bhopal (M.P.) - Applicant
(By Advocate Shri M.K. Verma)
V e r s u s
1. Union of India through Chairman, Railway Board,
Rail Bhawan, New Delhi
2. General Manager West Central Railway,
Jabalpur (M.P.)
3. General Manager Central Railway
Chhatrapati Shivaji Terminus Mumbai (MH)
4. Divisional Railway Manager,
West Central Railway, Bhopal (M.P.)
5. Virenra Kumar Kureel, ACBS,
West Central Railway, Bhopal (M.P.)
6. Madhukar Nigam, ACPS,
West Central Railway, Bhopal (M.P.)
7. Anil Kumar Nair, Sr. Commercial Inspector,
West Central Railway Bhopal (M.P.) -Respondents
(By Advocate Shri J.S. Rathore)
(Date of reserving the order:16.09.2013)
O R D E R
By G.P.Singhal, AM.-
The applicant in this Original Application has prayed for the following reliefs:-
8(i). That this Honble Tribunal may graciously be pleased to issue writ in the nature of certiorari and may further be pleased to quash the promotion order dated 14.02.2005 (Annexure A/3) in the interest of justice ;
(ii) That this Honble Tribunal may further be pleased to direct the respondents to promote the applicant with effect from the date of promotion order i.e. 14.02.2005 in the interest of justice.
(iii) That this Honble Tribunal may further be pleased to hold the action on part of respondents as bad in the eyes of law.
(iv) That this Honble Tribunal may, further be pleased to award the cost of instant lis in favour of the applicant, to be recovered form the salary of Respondent No.6.
(v) Any other relief(s), direction(s), instruction(s), which this Honble Tribunal deem, fit and proper looking to the above facts and circumstances of the case be also awarded in favour of the applicant in the best interest of justice.
2. The brief facts of the case, as submitted by the applicant, are that the respondent-authority had issued a letter dated 24.08.2004 (Annexure A-1), inviting applications, for four posts (three General and one Scheduled Caste) of Commercial Apprentices carrying pay scale of Rs.5500-9000/- (RSRP), from the departmental candidates. It was mentioned in the letter that selection will be made on the basis of seniority-cum-merit of the candidates passing in written exam and viva voce. The applicant has claimed that he had submitted an application dated 14.10.2004 (Annexure A/1-A) pointing out that selection should be on the basis of merit and not seniority. However, the examination was held on 19.10.2004, and the applicant also participated in it. Results of written exam were declared on 14.02.2005 (Annexure A-3), in which, the applicant did not find his name in the list of successful candidates. Therefore, he filed various applications dated 20.05.2005, 6.12.2005, 07.07.2006, 02.01.2007 and 22.02.2008 (Annexure A/3-A), agitating his grievance pertaining to not conducting the selection for Commercial Apprentices on the basis of merit. In one such application, the applicant had also pointed out that, in Jabalpur Division the selection for Commercial Apprentices has been conducted on the basis of merit only. Thereafter, one Shri Saurabh Beohar, Advocate, sought information from the respondents, under Right to Information (for brevity RTI) Act, regarding the marks obtained by the selected candidates and procedure adopted for this selection. After many efforts, on the orders of Chief Information Commissioner on 05.06.2009 (Annexure A-8) on the second appeal filed by him, the Public Information Officer, Senior D.P.O. Bhopal, vide its letter dated 01.07.2009 (Annexure A-9), supplied the information regarding marks obtained by the candidates and also informed that selection has been made purely on seniority basis. It has also been revealed in this communication that, the applicant had obtained more than 80% marks in the written examination and, these were the highest marks amongst all the candidates who appeared in the said examination. Thus, the applicant submitted representation on 08.07.2009 (Annexure A-10) about his non-selection to the post of Commercial Apprentice. However, his representation was rejected by the respondent No.4 vide the letter dated 31.08.2009 (Annexure A-12).
3. The applicants contention is that, as he had obtained over 80% marks in the examination, as per the provisions of Para 219 (j) of the Indian Railway Establishment Manual (for brevity IREM) Volume-I, he should have been classed as outstanding and promoted without consideration of seniority. The applicant further submitted that for filling up the vacancies of Traffic Apprentices and Commercial Apprentices, the final panel should have been drawn as per the provisions of Railway Boards Circular dated 08.11.1973 (Annexure A-14). This view has been reiterated by the Railway Board in its letter dated 08.10.2007 (Annexure A-13). The concept of giving seniority, ignoring the merit, has been deprecated by the Honble Apex Court in the case of M. Ramjayaram Vs. General Manager, South Central Railway and others (1996) 8 SCC 266. Further, this matter has also been considered and decided by the Bombay Bench of this Tribunal in its order dated 25.03.2011 passed in Original Application No.321/2008, in which, in a similar case of promotion to the post of Commercial Apprentices, it has been held that the procedure for such selection should have been the one contained in Boards letter dated 08.11.1973 read with Boards letter dated 20.12.1961.
4. The applicant further submitted that the administrative error on the part of respondents may be corrected even at this stage, using the provision of Para 228 of the IREM, which provides for cancellation of such promotion, as soon as it is brought to the notice of the appointing authority, if such a promotion has resulted from a factual error. Thus, in this case, the promotions done vide the order dated 14.02.2005 (Annexure A-3), deserve to be cancelled, and the applicant, on the basis of his merit in the written examination, should be promoted with effect from 14.02.2005.
5. The applicant has also filed Miscellaneous Application No.612/2009 under Section 5 of the limitation act for condonation of delay, wherein, he has explained the delay mainly on the ground of delay in getting information, regarding this selection, under RTI Act.
6. The respondents have submitted, in their reply to the application for condonation of delay, that the application under RTI Act has been filed on behalf of the applicant much after the date of selection, and therefore, this can not be a valid ground for condonation of delay. Further, there is no provision to submit an application under RTI Act through someone else, and it had to be filed by the applicant himself. The selection list in this case was issued on 14.02.2005, while RTI application was filed on 01.08.2008 (Annexure A-4), which is almost three and half year after declaration of result. Thus, the Original Application, which has been filed on 05.09.2009, is clearly barred by limitation and therefore, deserves to be dismissed.
7. On merits, the respondents have submitted that, the final panel was drawn strictly on the basis of seniority in accordance with the relevant circulars/instructions. The selection was held in accordance with the circular dated 16.11.1998 (Annexure R-1), and the instructions of the letter dated 28.12.1999, received from the then Headquarters office at Mumbai. Thus, the final panel was drawn from amongst those securing 60% marks in the professional ability and 60% marks in the aggregate, in the order of seniority. These instructions also provided that those securing a total of more than 80% marks will be classified as outstanding and placed on the top of the panel in order of seniority. However, no one secured more than 80% marks in overall selection process. Since, in the seniority list, the applicant was at serial No.15, as against the private respondents Nos.5, 6 and 7 who were at serial no 1, 2 and 3 respectively, the applicant was not selected. The applicant had participated in the selection process without any protest and cannot raise all these issues now when he has not been selected. The representations of the applicant have been decided by the respondents vide their letter dated 31.08.2009 (Annexure A-12). In regard to the applicants contention that he had secured more than 80 % marks, and thus, he should have been put on top of the panel as per the provision of Para 219 (j) of IREM, the respondents have submitted that the applicant secured less than 80 % marks in aggregate, and therefore, he was not entitled to get the benefit of this provision. In regard to the applicability of clarification sought on the letter dated 22.06.2006 of Railway Board, the respondents have submitted that selection took place in 2004, which can not be interfered on the basis of this clarification. Thus, the Original Application, being without any substance, deserves to be dismissed.
8. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith. We have also gone through the written submission filed on behalf of the applicant.
9. First of all, we will discuss the issue of limitation. The applicant has amended the Original Application vide Misc. Application No.324/2013. With this amendment, he has submitted that, he had filed an application, protesting against the selection being based on seniority cum merit, as early as on 14.10.2004 (Annexure A/1-A). Thereafter, he had filed various applications on 20.05.2005, 06.12.2005, 07.07.2006, 02.01.2007 and 22.02.2008 (Annexure A/3-A), in this regard. However, on perusal of these applications, we find that the application dated 14.10.2004 ibid was though addressed to Divisional Railway Manager (Personnel) [for brevity DRM (P)], Bhopal, it was sent through proper channel and bears the signature of Station Manager, Bhopal as mark of receipt. Since the examination was to be conducted on 19.10.2004, if the applicant was serious about his objections, he could have also sent a copy of it directly to the competent authority. Further, no reference of this letter is found in any of his future correspondences in this matter.
10. The applicants next letter, dated 20.05.2005, simply mentions that:-
On perusal of the result I am surprised to see that my name didnt appear in the panel, whereas on the basis of preparation in written examination I was expecting my success. Sir, it appears that, the selection has been done on the basis of seniority, whereas the Railway Boards instruction exists to conduct such selection (LDCE) on the basis of merit. Thus, there is no reference to the particular instructions, if any, which provide for the conduct of selection under LDCE on the basis of merit only, even though, the Para 219 IREM, as existing at that time, provided for consideration of seniority also in LDCE selection. Thereafter, the applicants next letter dated 06.12.2005 simply mentions that he had pointed out his grievances vide the letter dated 20.05.2005, but till date no action has been initiated by the Railway Administration. Therefore, he again requested the DRM (P) Bhopal to look into the matter and consider his case for selection on this post. Here, it appears strange that, though it is mentioned on top of these two letters, i.e. dated 20.05.2005 and 06.12.2005, that they were being sent through proper channel, there are no signatures on them as a mark of their receipt by anyone, while all the other letters filed by him bear the signatures of Station Manager Bhopal, to mark the receipt.
11. In the next letter of the applicant dated 07.07.2006, the applicant has asked for information of marks obtained by all the participants as well as basis of selection. Thereafter, in the letter dated 02.01.2007, the applicant simply requested for communication of decision on his earlier letters. The last letter of the applicant has been written on 22.02.2008. In this letter, the applicant has informed DRM (P) Bhopal that in Jabalpur Division the selection of Commercial Apprentices has been done on the basis of merit vide DRM (P) JBP letter dated 21.07.2007 and 17.01.2008 (sic). He has further informed the said authority, that in other divisions, he has confirmed that, similar selections are being conducted on the basis of merit. This letter, also mentions about the Railway Boards clarification dated 08.10.2007, which is in regard to filling up of vacancies of Commercial Apprentices on the basis of merit. There is no further letter. Thereafter, Shri Saurabh Beohar, Advocate filed an application dated 01.08.2008 (Annexure A-4) for seeking information under RTI Act. After getting this information vide the letter dated 01.07.2009 (Annexure A-9) the present Original Application has been filed by the applicant on 05.09.2009.
12. Thus, the Original Application has been filed almost four years seven months after the declaration of results. In the application filed by the applicant under Section 5 of the Limitation Act, he has not given any reference to all these letters, beginning from 14.10.2004, up to 22.02.2008, and condonation has been claimed only on the ground of delay in receipt of information, which he got under RTI Act, through the application filed by one Shri Saurabh Beohar. If these letters were sent by the applicant, as is being claimed by him through the amendment to this Original Application, these could not have been omitted in his application for condonation of delay. The respondents, in their reply to the application for condonation of delay, have specifically mentioned that the applicant failed to represent his grievances to railway administration at any stage of the selection. Further, even if it is presumed that the representations were genuinely sent, it is settled principle of law that filing of repeated representations does not renew the cause of action. Thus, the present Original Application, filed almost 4 = years after the declaration of result, is clearly barred by limitation.
13. Even on merits, the applicant has no case. He has pleaded for his selection on the ground that he had secured more than 80% marks in the selection test, and therefore, as per Para 219 (j) of the IREM, he deserves to be selected. As against this, he is also seeking selection, on the ground of the clarification issued vide the Railway Boards letter dated 08.10.2007 (Annexure A-13), which makes the provisions of Para 219 (j) inapplicable in such selections. Thus, his pleadings in this case appear to be contrary to each other. The applicant had participated in the selection process which was conducted as per the letter dated 24.08.2004 (Annexure A-1). The applicant has no where challenged this letter. On the contrary, he participated in the next examination of 2006 also, which too was in all probability conducted on same principles, as is apparent from the information provided under RTI Act vide the letter dated 01.07.2009 (Annexure A-9). Railway Board had, vide the R.B.E. No.263/1998, dated 16.11.1998, amended the provision of selection, for filling up general selection posts, for which eligible staff of different category/departments are called, as is the case in the selection under challenge in this Original Application. This amendment was done in view of Honble Supreme Courts Order dated 12.03.1996 in M.Ramjayaram (supra). These amended rules provide that the final panel will be drawn in the order of seniority. Since, in the selection for Traffic and Commercial Apprentices also eligible staff of different category/departments are called, these instructions were being followed by the respondents in case of these selections too, till the clarification was issued by the Railway Board vide their letter dated 08.10.2007(Annexure A-13). Thus, there appears to be no justification for interfering on the basis of clarification issued by Railway Board in 2007, with the selection conducted in 2004, as the persons selected in 2004 and thereafter in 2006 have been working on these posts for quite sometime, and it will unsettle the settled position. The facts and circumstances of this case are quite different from the case in Original Application No.321/2008 of Central Administrative Tribunal, Bombay, as in that case, the panel of selected candidates was published on 30.04.2007. Before that date, the Railway Boards letter dated 22.06.2006 was already in existence, which had clarified the position in regard to this selection, as is mentioned in the subsequent letter dated 08.10.2007. Thus, the selection panel was quashed by the Tribunal. Therefore, the case in present Original Application is clearly distinguished from the case in Original Application No.321/2008 of C.A.T. Bombay.
14. In view of the aforesaid, we do not find any justification for granting the reliefs prayed for by the applicant in this Original Application. Thus, Original Application is dismissed with no order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member kc 8 OA No.816/2009 Page 8 of 8