Central Administrative Tribunal - Allahabad
Dharmednra Kumar Verma vs U.O.I & Ors. Hence The Original ... on 30 March, 2012
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD HONBLE MR.SANJEEV KAUSHIK , MEMBER (J). HONBLE MS. JAYATI CHANDRA, MEMBER (A). Original Application Number. 345 OF 2010. ALLAHABAD this the 30th day of March, 2012. 1. Dharmednra Kumar Verma, aged about 38 years, son of Shri Ram Dayal, Resident of 128/15, Deioki Nagar, Yashoda Nagar, Kanpur. 2. Sheo Deo Singh, aged about 40 years, son of Shri Salig Ramm Singh. Resident of C-833, Barra Vishwa Bank, Kanpur. 3. Samar Bahadur Yadav, aged about 37 years, son of Shri R.P. Yadav, Resident of 158, N- Block, Yashoda Nagar, Kanpur. 4. Vijay Kumar Chaudhary, aged about 38 years, son of Shri Rama Nand, Resident of 126/18, S- Blcok, Govind Nagar, Kanpur. 5. Arif Husain Khan, aged about 41 years, son of M.H. Khan, Resident of 83/146, Param Purva, Kanpur. Applicants. VE R S U S 1. Union of India through General Manager, North Central Railway, Civil Lines, Allahabad. 2. Divisional Railway Manager, North Central Railway, Nawab Yusuf Road, Allahabad. 3. Senior Divisional Personnel Officer, North Central Railway, Nawab Yusuf Road, Allahabad. 4. All India SC/ST Association, through its Secretary Ram Dulare, P.A, D.R.M Office Compound, North Central Railway, Nawab Yusuf Road, Allahabad. 5. Upednra Kumar, Divisional Engineer (General), North Central Railway, Nawab Yusuf Road, Allahabad ..Respondents Advocate for the applicants: Sri T.S. Pandey Advocate for the Respondents : Sri S.K. Chaturvedi O R D E R
By Honble Mr. Sanjeev Kaushik, J.M. By means of the present original application filed under section 19 of Administrative Tribunals Act 1985 the applicant seeks quashing of impugned Notification dated 23.01.2009 (Annexure A-1) alternatively also be pleased to issue a writ or mandamus commanding the respondents to interpolate the names of the applicants in select list/panel dated 08.07.2009.
2. The Skelton facts of the case, as has been canvassed by the applicants, after being selected through Railway Recruitment Board they were appointed on the post of Assistant Loco Pilot. Presently they are working as Senior Assistant Loco Pilot at Kanpur. The next promotion is of Electric Loco Pilot. The respondents department issued a Notification on 23.01.2009 for filling up the post of Electric Loco Pilots in pay scale of Rs. 5000-8000/ 9300-34800 + Rs. 4600 (GP) by way of selection against total 248 vacancies out of which 48 were reserves for SC, 72 for ST and 128 were for general category. Pursuance to the above Notification, the written test was held between 15.02.2009 to 25.02.2009. Thereafter Suppl. Written Test was also held on 08.03.2009. It is averred in para 4.III, earlier feeder post for Electric Loco Pilot was Shunter only but in terms of provision provided in I.R.E.M Vol. I, due to paucity of Shunters, the other categories were included vide P.S No. 11279/16 followed by Railway Boards Letter dated 21.05.1996 (Annexure A-2 and A-3). The list of 117 successful candidates out of 248 was issued on 08.07.2009. The name of the applicants did not find placed in the said list. The applicants thereafter stated to have made a representation on 08.12.2009 stating therein that they have not been awarded correct marks in the written test and their answer sheets have wrongly been evaluated by the respondents. Not only this the applicants have also challenged the decision of the respondents for filling up 248 vacancies of Loco Pilots for which they appeared in the written examination on the ground that it is against the Railway Boards Circulars/orders and thus the Notification dated 23.01.2009 deserves to be struck down as the same is also in violation of Constitutional Bench judgment in the case of Indira Sahani Vs. U.O.I & Ors. Hence the original application.
3. Pursuance to the notice respondents appeared and resisted the claim of the applicant by filing detailed Counter Affidavit. Firstly the respondents have taken preliminary objection to the effect that the instant original application on the behest of the applicants challenging the Notification dated 23.01.2990 is barred by principle of estoppels as the applicants in pursuance to the above notification appeared in the written examination and after declared unsuccessful they have challenged the validity of said notification, therefore, the instant original be dismissed on the ground alone.
4. Secondly, the respondents have taken objection for non-joinding / impleadment of necessary parties as no selected candidates have been impleaded as party, whose selection is under challenge. Therefore, the O.A is liable to be dismissed on this ground also. Thirdly, he submitted that the impugned Notification has already been upheld dismissing O.A No. 825/09 V.K. Dubey and Ors. Vs. U.O.I & Ors on the behest of unsuccessful candidates, by order dated 27.11.2009, therefore, the present Original Application be also dismissed. Lastly he argued that this Tribunal cannot evaluate the answer sheets , which have already been examined by the expert.
5. The applicants have also filed Rejoinder Affidavit in which they have contradicted the averments of the respondents.
6. We have heard Shri T.S. Pandey, learned counsel for the applicants and Shri S.K. Chaturvedi, learned counsel representing the respondents.
7. Learned counsel for the applicant vehemently argued that by means of the present O.A the applicant are not impugning the select list. They have challenged the legality and validity of the Notification dated 23.01.2009 which has been issued contrary to the respondents own circular and thus the same is liable to be set aside. He urged that the impugned notification is in violation of the judgment of Honble Supreme Court in the case of Indira Sahani, which has subsequently been followed in the case of M. Nagraj Vs. U.O.I as more reservation has been given to the reserved category, which is not permissible. He further argued that even the Notification making other categories eligible for the post of Electric Loco Pilot then the Shunter , which is only the feeder post is in violation of Rule 14 of I.R.E.M Vol. I. He argued that the instructions cannot over ride the rules. In this behalf he placed reliance upon the judgment of Apex Court in the case of U.O.I & Ors. Vs. Tulsi Ram Patel 1987 (2) U.P.L.B.E.C page 124. He alleged that with a malafide intention the respondent No. 5 had not awarded correct marks to the applicants, therefore, the impugned Notification deserves to be set aside.
8. On the other hand learned counsel for the respondents argued that by seeking quashing of Notification the applicants in other way are seeking quashing of final result. Therefore, in the absence of impleadment of selected candidates the instant original application is not maintainable. He placed reliance upon the judgment reported as 2001 (6) SCC page 380 All India SC & ST Employees Association Vs. A. Arthur Zeen . He further argued that the instant O.A also deserves to be dismissed as the applicant firstly taken a chance to appear in written examination pursuance to the impugned Notification but when they did not qualify then have challenged the validity of the said Notification. It was well within the knowledge of the applicants before appearing in the written examination, which they now alleged in the O.A after declaring un-successful. Thus the O.A be dismissed. In this behalf learned counsel for the respondents placed reliance on following judgments: -
a. Dhananjay Malik and others Vs. State of Uttaranchal and others 2008 (4) SCC-171;
b. Madan Lal Vs. J & K 1995 (3) SCC-486;
c. U.O.I Vs. S. Vinodh Kumar 2007(8) SCC-100;
d. G.N. Nayak Vs. Gova University 2002(2) SCC-712;
e. Triveni Himanshu Ghanshyam Bai Vs. Ahmedabad Municipal Corporation 2007 (8) SCC Page 644;
f. U.S. Sinha Vs. State of U.P & Ors 2008(1) UPLBEC-673;
g. Om Prakash Shukla Vs. Akhilesh Kumar Shukla AIR 865 SCC (L&S) 644;
h. Dr. G. Sarna Vs. Vice Chancellor AIR 1976 SC 2428;
i. Munindra Kumar Vs. Rajeev Govil- 1991 SCC (L&S) 1052.
9. Thirdly he argued that this Tribunal cannot look into the question paper and marks awarded to a candidate in the written examination by an expert body. In this behalf he referred to judgment of Honble Apex Court in following cases: -
a. Maharashtra State Board of Secondary and Higher Secondary Education & Anr. Vs. Paritosh Bhupesh Kurmarsheth etc.etc. AIR 1984 SC 1543 ;
b. Dr. Muneeb Ul Rehman Haroon & Ors. Vs. Government of Jammu & Kashmir and Ors AIR 1984 SC 1585 c. Board of Secondary Education Vs. Pravas Ranjan Panda and Anr (2004) 13 SCC 383.
d. Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission, Patna & Ors, AIR 2004 SC 4116.
10. On merits , it is submitted that other cadres were allowed to compete for the post of Assistant Loco Pilot (Goods) after approval of the competent authority , which was accorded on 11.08.2008 as the Division is facing acute shortage of Loco Pilot (Goods). It is further argued that as on date of issuance of Notification total 248 vacancies were available , therefore, the Notification was issued. He referred to page 24 of Counter Affidavit. Lastly learned counsel for the respondents submitted that there is no illegality in the impugned Notification and the panel of selected candidate, therefore the O.A be dismissed being devoid of merits.
11. We have considered the rival submissions and have gone through the record as well as the judgments cited by the respective parties.
12. In view of the preliminary objections raised by the learned counsel for the respondents we deem it appropriate to firstly decide the same. Admittedly the present O.A has been filed by those candidates, who appeared pursuance to the impugned Notification dated 23.01.2009 and remain unsuccessful. When a candidate appeared in the examination without protest and subsequently it was found to be not successful in the examination pursuance to which he appeared in the examination. Merely because the result of the examination is not palatable to him cannot turn around and subsequently challenge the notification. The law on the subject has been crystallized by the Apex Court in plethora of judgments starting from Dr. G. Sarna Vs. Vice Chancellor AIR 1976 SC 2428, which was subsequently followed in the case of Munindra Kumar Vs. Rajeev Govil- 1991 SCC (L&S) 1052. The view taken in the above case later on was followed in the case of Madan Lal Vs. J & K 1995 (3) SCC-486 and subsequently in the case of Dhananjay Malik and others Vs. State of Uttaranchal and others 2008 (4) SCC-171. The Apex Court judgment in the case of Sadananda Holo & Ors. Vs. Momtaz Ali Sheikh & Ors. 2008 (4) SCC page 619. Para 59 of the judgment reads as under: -
59. It is also a settled position that unsuccessful candidates cannot turn back and assail the selection process. There are of course, the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India Vs. S. Vinodh Kumar where one of us (Sinha,J) was a party. This was a case where different cut-off marks were fixed for the unreserved candidates and the Scheduled Caste and Scheduled Tribe candidates. This court in para 10 of its judgment endorsed the action and recorded a finding that there was a power in the employer to fix the cut off marks which power was neither denied nor disputed and further that the cut-off marks were fixed on a rational basis and, therefore, no exception could be taken. The court also referred to the judgment in Om Prakash Shukla Vs. Akhilesh Kumar Shukla where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise. The Court further made observations in para 34 of the judgment to the effect : (S. Vinodh Kumar case, SCC 107, para 9).
19. 34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contended that the process of interview was unfair or there was some lacuna in the process. By applying the above ratio to the facts of the present case, which leaves no doubt that a candidate who has taken a chance later on cannot turn around and challenge the validity of advertisement or subsequent proceedings being unfair, therefore, the O.A deserves to be dismissed.
13. Secondly, admittedly none of the candidates, who have been placed in the select list, has been impleaded as respondents though learned counsel for the applicants has argued that he is not challenged the selection as he is only seeking quashing of the impugned Notification advertising the vacancies. We failed to understand the argument advanced by the learned counsel for the applicant because if the notification goes then obviously the subsequent result will automatically goes , therefore, the selected candidates are the proper and necessary party, who admittedly have not been impleaded as party. The argument advanced by the counsel for the applicants that in terms of judgment of Apex Court in the case of Prabodh Verma & Ors Vs. Dal Chand & Ors AIR 1985 SC 167, impleadment of one candidate is sufficient, cannot be accepted particularly when the applicants have not impleaded even one of the selected candidates as a party/respondents. Merely impleadment of affected candidates through All India SC/ST Association does not absolve the applicants from impleading all selected candidates. It is also not averred that all the selected candidates are the Member of Association. In this regard, Honble Supreme Court in the case of All India SC/ST Employees Association (Supra) has held as under : -
13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is an admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates, may be , in representative capacity; if the large number of candidates were there and if there was any difficulty in service of notice on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma Vs. State of U.P has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. The above ratio of law has also been considered by the Apex Court in a latest decision in the case of Rashmi Mishra Vs. M.P Public Service Commission & Ors reported in 2007(2) SCC (L&S) 345. Relevant para 13, 15 and 30 of the said judgment reads as under : -
13. It is not disputed that all the 17 selected candidates were not impleaded as parties. Respondents 3 and 4, although , purported to have been impleaded as parties, the same , as noticed hereinbefore, we done on a different premise. Allegations of favoraitism against them having been made, undisputedly they were necessary parties. In the writ petition, although the appellant contended that they were being impleaded in their representative capacity, admittedly no step had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto.
15. In the aforementioned situation, all the seventeen selected candidates were necessary parties in the writ petition. The number of selected candidates was not large. There was no difficulty for the appellant to implead them as parties in the said proceeding. The result of the writ petition could have affected the appointee. They were, thus, necessary and / or in any even proper parties.
30. In the result case, however, as all the selected candidates were not impleaded as parties in the writ petition, no relief can be granted to the appellants.
14. With regard to the allegation of not giving proper marks, this court cannot sit over the decision of an expert as per the latest decision of Apex Court in the case of Himanchal Pradesh Public Service Commission Vs. Mukesh Thakur and another 2010 (4) AWC 3798 SC. Relevant para 19 and 20 reads and under: -
19. In view of the above, it was not permissible for the High court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for the respondent No. 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court.
20. Therefore, we are of the considered opinion that such a course was not permissible to the High Court. Following the above ratio this Tribunal in O.A No. 1379/10 Ashok Kumar Tiwari Vs. U.O.I & Ors dismissed the O.A on 10.02.2012 holding that it is not within the domain of Court to award marks and to sit over the marks awarded by an expert. Though the applicant has impleaded the respondent No. 5 as an private respondent but no specific allegation has been leveled against him. General and vague averments has been made that he has not awarded correct marks to the answer which resultant in awarding lesser marks to the applicant. It is settled law if a malafide is to be alleged then same is to be proved beyond doubt, which is lacking in the present case, therefore, the O.A also deserves to be dismissed.
15. With regard to the fact that the Notification is contrary to the Railway Boards circular dated 01.05.1996, 29.12.1996 and 22.08.2008 are concerned , this Tribunal in O.A No. 825/09 V.K. Dubey and others Vs. U.O.I & Ors have already considered this aspect of the matter and negatives the arguments of the applicant. The relevant para of the said order reads as under : -
8. .. Here, in the present case, the entire selection has been made on the basis and in the light of the Railway Board Circular dated 01.05.1996 (Annexure No. 3), Railway Boards Circular dated 29.11.1996 (Annexure No. 2) and Railway Boards Circular dated 22.08.2008 (Annexure No. 1). In sum and substance there has been no violation of any rule in the present case. The Railway Board by its Circular has provided for consideration of the claim of the Assistant Loco Pilots as re-designated as Senior Loco Pilots in that regard, thus the judgment in the case of Rajesh Kumar Srivastava (Supra) does not apply to the present case, as there has been no infraction or deviation from the rule..
Therefore also the applicant has no case on merits.
16. In view of the facts narrated above we uphold the preliminary objections raised by the learned counsel for the respondents. Hence the O.A is dismissed. No costs.
MEMBER- A. MEMBER- J. /Anand/ ?? ?? ?? ?? 12 O.A No. 345 of 2010