Central Administrative Tribunal - Delhi
Mr. Deepak Dutta vs The General Manager on 3 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 54 OF 2011 Order Reserved on 20.07.2012. Order Pronounced on 03.08.2012 CORAM: HON'BLE DR. RAMESH C. PANDA, MEMBER (A). HON'BLE SMT. C. MAJUMDAR, MEMEBR (J) Mr. Deepak Dutta Adult, age 53 years, Ex-serviceman Residing at Railway Flat No.7/D-2 Ashok Vihar Phase III New Delhi 110 052. ... Applicant (By Advocates: Sh. B.S. Nayak) VERSUS 1. The General Manager, Western Railway, Mumbai Headquaters Office, Churchgate, Mumbai- 400 020. 2. Union of India. ... Respondents (By Advocates:Shri R.R. Shetty for R-1 and Shri V.D.Vadhavkar for R-2) ORDER Per: Dr. Ramesh C. Panda, Member (A)
Shri Deepak Dutta, the applicant herein, is challenging his non-selection to the post of Enquiry-cum-Reservation Clerk (ECRC) by the Railway Recruitment Board (RRB), Mumbai for which post he submitted his application in response to the advertisement of RRB (Employment Notice No.2/98 with closing date of 30.11.1998) and has instituted the instant OA with the following prayers:-
(a) That this Honble Tribunal be pleased to quash and set aside the impugned letters dated 7.8.2009, 7.9.2009 and 3.2.2010 issued by the respondents being illegal, unfair, unconstitutional unjust, arbitrary, discriminatory, violative of Articles 14, 16 and 21 of the Cosntitution of India.
(b) That this Honble Tribunal be pleased to direct the respondents to appoint the appointment to the post of Enquiry-cum-Reservation Clerk in the establishment of Western Railway, Mumbai with effect from 19.5.2000 and/or 22.9.2000 on which date the final list of candidates was prepared by the respondents and give him the consequential benefits with interest.
2. We may narrate minimum relevant facts for consideration and determination of the issues raised in the above prayers. The applicant joined Indian Air Force (IAF) in the year 1977 and after completion of 21 years of service there he left the service in IAF in 1998 and being a pensioner was an ex-serviceman. In response to the Employment Notice No.2/98 he applied to the post of ECRC in the Western Railways, Mumbai. The said notice inter alia envisaged that (a) candidates who qualify in the written examination and satisfy the eligibility criteria would be called for interview and (b) for the post of Assistant Station Master (ASM) a candiadte would have to undergo psychological test. It is the case of the applicant that he appeared in the written examination on 6.6.1999 (Roll No. 5155116) and was successful. He appeared in the Psychological Test on 12.11.1999. He heard nothing from RRB and the Railways for which he represented to the Railways Ministry vide his letter dated 01.10.2006 and he was informed vide letter dated 25.11.2006 (Page 35)that the matter was under examination of the concerned department. It is noticed from the letter dated 17.12.2008 addressed by Member Secretary, RRB to the Railway Board that the RRB conducted combined examination for ECRC and ASM and the applicant was not qualified in the written examination for the post of ECRC. It was further stated that though the applicant was called for the Psychological Test which was meant for the ASM post but was not called for interview as he was not found in the final result for the candidates in both categories of posts (ASM and ECRC). Being aggrieved, he submitted his representations to various authoriteis to which he received a reply vide letter dated 7.9.2009 (Page 19) stating therein that as per the available records and result with RRB, the applciants Roll number did not appear in the final result prepared for those candidates who had been called for interview for either of these two posts i.e. ASM and ECRC. To the applicants further representation dated 11.12.2009, he was informed vide letter dated 3.2.2010 that there was no vacancy for Ex-serviceman in ECRC posts. Feeling aggrieved he has impugned the letters dated 7.8.2009, 7.9.2009 and 3.2.2010 and sought direction of the Tribunal to the respondents to appoint him to the post of ECRC w.e.f. 19.05.2000 or 22.09.2000 with consequential benefits.
3. Representing the applciant, the learned counsel Shri B.S. Nayak would submit that the impugned letters issued by the respondents were contradictory to each other and reflected non-application of mind and their appraoch was casual and routine. The action of the respondents is hit by the principle of promisory estoppel as per the advertrisement for the posts in question. In this regard, he placed his reliance on the judgement of Honble Apex Court in State of Bihar and Others verus Kalyanpur Cement Limited [2010-3-SCC-274]. Further, Shri Nayak submits that the RRB has committed error in calling the applicant for the Psychological test which is not applicable for the post of ECRC. Thus, terming the impugned action of the respondents against justice, equity, and principles of natural justice, he urges to allow the OA.
4. Opposing the above grounds and after receipt of notice from the Tribunal, the respondents have filed their reply affidavit on 18.01.2012 through Shri R.R. Shetty, learned Senior Central Government Standing Counsel. The applicant submitted his rejoinder on 27.01.2012 to which the respondents filed sur-rejoinder on 27.03.2012.
5. The learned counsel for the respondents simplified the controversy by referring to the advertisement available at Page 67 of the paper book to state taht the advertisement prescribed the age limit as 18 years to 30 years as on 01.11.1998 and the applicant was clearly overaged on that date as his date of birth was 18.12.1957. His contention was that there was no reservation for ex-serviceman in the post of ECRC and thus the applicant was overaged for the unreserved vacancies. He clarified that there was reservation for ex-servicemen in the post of ASM and the confusion existed in the mind of the applicant that there were vacancies in ECRC posts reserved for ex-servicemen as the written examination was common for both ASM and ECRC. There was no illegality and no violation of principle of natural justice. He submitted that final result after the interviews was decalred for those two posts on 19.05.2010 but the applicant represented only in October, 2006. He, therefore, raised the objection of limitation, delay and latches. He, therefore, argues that the OA deserves to be dismissed.
6. Haviang heard the contentions of the counsel for the parties, with their assitance we perused the pleadings and the only judgment relied on by the applicants counsel. The controversy which emerges for our consdieration is in narrow compass. Is the applicant as ex-serviceman eligible as per the age and qualification prescribed in the advertisement?
7. We may examine the above issue. It is an admitted fact that the Employment Notice No. 2/98 has shown totally 40 vacancies for the ECRC post i.e. 20 for UR, 11 for OBC, 3 for Tribals and 6 for SC Cateogries and there has been no reservation for ES i.e. Ex-servicemen category. Admittedly, aplicant has applied for the ECRC post and the prescribed age stipualted in the Notice is 18 years to 30 years. Further, as there is no reservation for ES category, the applciants candidatrue will fall in the UR category where there is no provision for age relaxation. The date for reckoning the age was indicated to be as on 01.11.1998. On a querry from the Bench, we have been informed by the parties that the applicants date of birth is 18.12.1957. Thus, as on 01.11.1998, the applicants age has been more than 40 years. We note that the applciant is not eligible to apply for the post of ECRC in the UR category, less to consider his prayer to consider his appointment to the said post. On the basis of this ground, the OA is liable to be dismissed.
8. However, learned counsel for the applicant would very forcefully argue that the applciant having been called for written examination and examined for the psychological test, the respondents are estopped to bring in different grounds to deny the applicant appointment to the post of ECRC. He has referred to the doctrine of promisory estoppel and placed his reliance on the judgment of Honble Supreme Court in State of Bihar & Others versus Kalyanpur Cement Limited (supra). At this stage, we may refer to the relied on judgment of Honble Supreme Court to find out whether the law laid in the said judgment would be applicable to the facts of the present case. In the judgment of Honble Supreme Court, doctrine of promisory estoppel was invoked. The facts of the case would reveal that there was an unequivocal promise for representation by word or conduct by the Government to the respondent and the representation intended to create legal relations which would arise in future. Honble Supreme Court laid certain parameters to invoke the doctrine of estoppel and those are (a) a party must make an unequivocal promise or representation by word or conduct to the other party; (b) the representation was intended to create legal relations or affect the legal relationship, to arise in the future; (c) a clear foundation has to be laid in the petition, with supporting documents; (d) it has to be shown that the party invoking the doctrine has altered its position relying on the promise; (e) it is possible for the Government to resile from its promise when public interest would be prejudiced if the Government were required to carry out the promise; and (f) the Court will not apply the doctrine in abstract. In order to invoke the doctine of promissory estoppel, clear, sound and positive foundation must be made in the petition itself by the party invoking the doctrine and bald expressions without any supporting material would not be sufficient.
9. In the background of the specific principles laid by the Honble Supreme Court for invoking the doctrine of promissory estoppel, when we analyse the facts of the present case, we find that the applicant was overaged and not even eligible to apply for the post of ECRC. Just because the applicant was allowed to write examination and was invited for psychological test, the respondents would not be proceeded against by invoking the doctrine of promissory estoppel. When the mandatory provision of age does not allow even the applciant to apply for the post of ECRC, the question of consideration and future appointment would not arise. Therefore, the grounds of invoking doctrine of promissory estoppel is not admissible in the present case of the applicant.
10. Considering the totality of facts and circumstances of the case and the reasons given above, we are of the considered view that the applicant has not made out a case in support of his claim seeking our interference and direction to the respondents. He has failed to convince us for such interference. Therefore, the Original Application being devoid of merit is dismissed leaving the prties to bear their own cost.
(C. Majumdar) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /naresh/