Central Administrative Tribunal - Delhi
Sanjeev Kumar vs Union Of India Through on 17 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 664/2013
MA 529/2013
MA 757/2013
MA 2069/013
New Delhi this the 17th day of January, 2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. P.K. Basu, Member (A)
1. Sanjeev Kumar,
S/o late Shri Jual Kishore
R/o BP-1, Pitampura,
Delhi-110034
2. Shiv Kumar Rana
S/o late Shri D.S. Rana
9E, Central Place, Rly Colony,
Bangla Market, New Delhi Applicants
(Present in person)
Versus
Union of India through
1. The General Manager
Northern Railway,
Baroda House, New Delhi
2. Dy. Chief Personnel Manager (T&C)
Northern Railway,
HQ, Baroda House,
New Delhi
3. Chief Commercial Manager (PS)
Northern Railway,
HQ, Baroda House,
New Delhi Respondents
(Through Shri B.K. Shukla and Shri Rajinder Khatter,Advocates)
ORDER
Mr. P.K. Basu, Member (A) The applicant no.1 Shri Sanjeev Kumar is working on the post of Hd.TTE/ HQ (Delhi Divn) and applicant no.2 Shri Shiv Kumar Rana is working as STE/ HQ (Delhi Divn). The applicants are, however, on deputation and working as Anti Fraud Inspector (AFI). The respondents called for a written examination on 30.07.2012 for four vacant posts of AFI and the applicants were successful in the written examination. However, the selection for the vacant posts of AFI was ultimately not concluded. Meanwhile, the respondents vide letter dated 18.02.2013 repatriated 17 of the deputationists to their parent department but later on, vide communication dated 20.02.013 relieved only 10 out of the 17, including both the applicants.
2. Aggrieved by both the notices dated 18.02.2013 and 20.02.2013, this OA has been filed with the prayer not to repatriate the applicants to their parent office and issue promotion letter to the applicants who have been declared fit and successful for the post of AFI to be filled up on regular basis.
3. Heard both the sides.
4. The case of the applicants is that the department has arbitrarily not appointed them as AFI though they have successfully completed the selection process. Secondly, while they have been repatriated, some others have been retained arbitrarily through a process of pick and choose. It is argued that the maximum tenure of AFI is four years after which they have to be removed from the said post. It is the case of the applicants that they have not completed their four year term and, therefore, they have been arbitrarily removed from the post of AFI. It is also stated that this Tribunal vide order dated 25.02.2013 had directed to maintain status quo as of that day and that status quo is still continuing. However, the respondents have in the meantime vide order dated 21.02.2013 relieved the applicants, which is contempt of court.
5. The applicants in support of their claim have cited the judgment of the Honble Supreme Court in East Coast Railway and another Vs. Mahadev Appa Rao and others, (2010) 7 SCC 678 in which it was held as follows:
Judicial review on the ground of arbitrariness Held, though a candidate who has passed an examination or whose name appears in select list does not have an indefeasible right to be appointed, yet appointment cannot be denied arbitrarily, nor can selection test be cancelled without giving proper justification Court can give appropriate directions where decision is found to be arbitrary.
xxxx xxxx xxxx Mandatory need for proper application of mind and reasons to be given in cancellation order Extent and mode of enquiry, held, depends upon facts and circumstances of each case It also depends upon source and credibility of information made available to competent authority, constraints of time, etc. However, essential requirement is that competent authority must have taken decision after due application of mind instead of acting mechanically or impulsively Departmental test cancelled on the basis of certain complaints that proper facilities for taking typewriting test were not provided to some of the candidates who failed in test Departmental records not showing that decision for cancellation was an informed decision Decision, held, vitiated.
xxxx xxxx xxxx What is absolutely essential is that the authority making the order is alive to material on the basis of which it purports to take a decision.
6. The respondents in their reply have stated that it is incorrect for the applicants to claim that they are AFIs. The actual fact is that both the applicants belong to ticket checking cadre and were posted in the headquarters squad since 17.02.2004 and 19.12.2002, respectively. People are drawn from this cadre on deputation to work as AFIs for anti fraud measures or ticket checking. It was stated that the applicants have completed their tenure of four years in headquarters office. Their tenure in headquarters is as under:
1.
Shri Shiv Kumar Rana, STE 19.12.02 to 26.08.09 27.08.09 to 08.11.10 09.11.10 to 21.02.13 As AFI in CCM squad as AFI 2. Shri Sanjeev Kumar, Hd. TTE 17.02.04 to 26.08.09 27.08.09 to 08.11.10 09.11.10 to 21.02.12 As AFI in CCM squad as AFI
It was stated that both the applicants have completed four years as AFI and, therefore, they have to be taken out of that duty. Moreover, due to revision of fare vide circular dated 11.01.2013, some additional staff had to be deputed for ticket checking to levy fare and other charges as per revised rate and, therefore, the staff was withdrawn from AFI duty and put on ticket checking duty. Only four employees on deputation were not touched as one was an office bearer of Northern Railwaymens Union and three others had not completed their four year tenure. Therefore, on the question of deputation to ticket checking work, the respondents argued that the applicants have no case at all as it was required due to the exigencies of work.
7. On the question of applicants not being selected as AFI despite qualifying the examination, the respondents clarified that the applications for selection of Anti Fraud Inspectors were called from the staff working in grade Rs.9300-34800 GP 4200 & Rs.9200-34800 GP 4600 vide notification dated 27.5.2010. However, 3 staff members belonging to Grade Rs.5200-20200 GP 2400, were included in the selection process although they were not entitled to apply for the said selection, being lower in pay scale. One of these three staff members is Shri Shiv Kumar Rana, applicant No.2 in this case. This major flaw of including persons of lower pay scale vitiated the entire process of selection. The competent authority has clearly observed that entertaining applications of staff from Grade Pay Rs.2400 was wrong as the notification clearly mentioned that applications were invited from employees with Grade Pay of Rs.4200. However, it is pertinent to mention that the notification dated 27.05.2010, which laid down the criteria to be adopted to adjudge the suitability of candidates, had a serious anomaly with regard to the eligibility in terms of grade pay, where it was categorically mentioned that the applicants should not be in grade below Rs.5000-8000/9300-34800 GP 4200 and in the subsequent para it was mentioned that if no suitable candidate is found to the same grade, person working below can be considered. The anomaly is that the persons with lower grade pay were not eligible to apply as per the eligibility criteria. If the next lower grade pay was to be included in the eligibility criteria, it should have been specifically mentioned as has been done in a recent notification dated 30.10.2013 for selection of Commercial Controller.
8. The respondents relied on the judgment of the Honble Supreme Court in Shankarsan Dash Vs. Union of India, (1991) 2 S.C.R. 567, in which it was held that :
Even if vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. 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 candidate, as reflected at the recruitment test, and no discrimination can be permitted.
9. On the question of cancellation of recruitment, in the law cited by the learned counsel for the applicant i.e. East Coast Railway (supra), the Honble Supreme Court has stipulated that when such tests are cancelled, it has to be an informed decision and there should be proper justification. We feel that the respondents have been able to establish that a major mistake had been committed in eligibility and the only course left to them was to cancel the selection in the interest of justice. Thus it cannot be called arbitrary. Therefore, the criteria set forth by the Honble Supreme Court is satisfied. The claim of the applicants to appoint them as AFI is, therefore, not justified and thus not allowed.
11. On the question of repatriation to parent posts also, the respondents have been able to demonstrate clearly the reason why AFIs were called from deputation and put on ticket checking duty. The fares had been revised and large number of ticket collectors were required at the Station to recover the balance amount from the passengers. As the railways were falling short of hands, they withdrew the ticket checking staff who were on AFI duty and completed four year tenure of service. The only persons who were not repatriated were three who had not completed their four year term and one was the office bearer of the Union. The respondents have clearly shown that the applicants had completed four years as AFI.
12. We find no arbitrariness adopted by the respondents, as alleged by the applicants. The OA is devoid of merit and, therefore, dismissed. No costs.
( P.K.Basu ) ( G. George Paracken ) Member (A) Member (J) /dkm/