Allahabad High Court
Union Of India And 4 Others vs Pappu Kumar And 13 Others on 17 May, 2024
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No.: 2024:AHC:89944-DB Judgment Reserved on: 06.05.2024 Judgement Delivered on: 17.05.2024 Chief Justice's Court Case :- WRIT - A No. - 8561 of 2021 (Leading writ petition) Petitioner :- Union Of India And 4 Others Respondent :- Pappu Kumar And 13 Others Counsel for Petitioner :- Purnendu Kumar Singh,Rajnish Kumar Rai Counsel for Respondent :- Rakesh Kumar Dixit,Vinod Kumar with Case :- WRIT - A No. - 1138 of 2022 (Connected writ petition C1) Petitioner :- Union Of India And Another Respondent :- Sunil Kumar And 4 Others Counsel for Petitioner :- Purnendu Kumar Singh,Rajnish Kumar Rai Counsel for Respondent :- Vinod Kumar with Case :- WRIT - A No. - 6104 of 2023 (Connected writ petition C2) Petitioner :- Vijay Kumar Yadav And 10 Others Respondent :- General Manager North Eastern Railway And 4 Others Counsel for Petitioner :- Vinod Kumar Counsel for Respondent :- A.S.G.I.,Ved Mani Tiwari with Case :- WRIT - A No. - 17274 of 2019 (Connected writ petition C3) Petitioner :- Bhupendra Kumar Yadav And 3 Others Respondent :- Union Of India And Another Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- Rajnish Kumar Rai,Rajesh Tripathi with Case :- WRIT - A No. - 24488 of 2014 (Connected writ petition C4) Petitioner :- Ravi Kant Gupta And 6 Ors. Respondent :- U.O.I. Thru Secry. Railway And 5 Ors. Counsel for Petitioner :- Vidya Bhushan Srivastava,Nand Lal Pandey,Suyash Pandey,U.P. Srivastava Counsel for Respondent :- Vivek Singh,Purnendu Kumar Singh,Rajnish Kumar Rai,S.C. Hon'ble Arun Bhansali,Chief Justice Hon'ble Vikas Budhwar,J.
1. Impugned in the bunch of writ petitions at the instance of General Manager, North Easter Railway, Gorakhpur District-Gorakhpur (in short, 'NER') and the original applicants are the orders passed by Central Administrative Tribunal Allahabad, Bench- Allahabad (in short 'the Tribunal').
2. Since the issues relates to a common selection, thus, captioned writ petitions are being decided compositely. For the sake of clarity, the Writ - A No. - 8561 of 2021 is treated as leading writ petition, Writ - A No. - 1138 of 2022 connected C1, Writ - A No. - 6104 of 2023 connected writ petition C2, Writ - A No. - 17274 of 2019 connected writ petition C3 and Writ - A No. - 24488 of 2014 connected writ petition C4.
3. The facts giving rise to the filing of the writ petitions are as under:
Writ - A No. - 8561 of 2021 (Leading writ petition)
4. Pleadings reveal that an advertisement was published on 06.12.2007 for filling up of 4549 Group 'D' post in North Eastern Railway. The original applicants claimed to have applied for the said vacancies and after qualifying the Physical Eligibility Test (PET), they were invited to appear in the written examination held on 16.02.2011, on 13.11.2011 as many as 5363 candidates were declared successful against the advertised post.
5. It is also the case of the original applicants that the testimonials of the selected candidates were put to verification and after medical examination they were declared successful and the certificate of physical fitness was also issued by the competent authority. As per the pleadings on 24.08.2012, a notification was issued to the effect that the result of some candidates were withheld noticing irregularities and the same was made dependant upon the receipt of the report of the concerned authority.
6. Aggrieved against the non-declarations of the results/final select list of Group 'D' post held in pursuance of the advertisement dated 06.12.2007, the original Applicants Nos. 1 to 10 preferred O.A. No. 1671 of 2013 (Saroj Kumar and others v. Union of India and others) whereas the original applicants Nos. 11 to 14 also approached the Central Administrative Tribunal, Allahabad while filing O.A. No. 163 of 2013 (Rahul Kumar and others v. Union of India and others) which came to be decided on 13.02.2013 and 21.02.2013 granting liberty to the original applicants to prefer representation before the competent authorities who were required to decide the same within the time stipulated therein. Thereafter, orders dated 09.05.2013 and 17.06.2013 was passed by the Deputy Personnel Officer/Railway Recruitment Recruitment Cell North Easter Railways (NER), Gorakhpur whereby the representations of the original applicants stood decided holding that the original applicants are below in rank in the select list with reference to the last selected candidates thus, they cannot be placed in the panel and whenever there is demand from division/unit for posting in place of candidates who did not join or against those who were absent, medically unfit or impersonation proved, the cases of the original applicants may be considered as per the merit position and they would be advised for proposed posting through website as well as official letter from the end of the concerned division/unit with a condition that seniority of the selected candidates through earlier panel shall remain protected under the established rules enforced from time to time.
7. Feeling aggrieved against the same, the original applicants thereafter preferred O.A. NO. 330/000608/2014 (Pappu Kumar and 13 others v. Union of India and four others) seeking following reliefs:
"It is, therefore, most respectfully prayed, that this Hon'ble Court may graciously be pleased to-
A. It is, therefore, most respectfully prayed, that this Hon'ble Court may graciously be pleased to quash the impugned letters/orders, dated 9.5.2013 in respect of applicant no. 1 to 10 and letters/ orders dated 17.6.2013 in respect of applicant no. 11 to 14 passed/ Issued by Deputy Personnel Officer/Railway Recruitment Cell North Eastern Railway, (NER) Gorakhpur, respondent no. 4 providing the misleading assurance in respect of posting and joining from the panel list of department. (Annexure No. 4 of the O.A). Further a mandamus is also being sought directing the respondents particularly respondent no. 3 to declare present actual position / Rank in the select list/ waiting list concerned in respect of petitioners as well as permit them to join in their respective posts on which they have been selected, within some stipulated period of time fixed by this Hon'ble Tribunal.
B. Issue any other further writ, order or direction, which this Hon'ble Tribunal may deem fit and proper in the fact and circumstances of the case.
C. To award cast of application/petition."
8. The said original application on contest came to be disposed of on 03.03.2021 with certain directions, operative portion is being quoted hereinunder:
"14. This OA is, accordingly, disposed of with the direction to the respondents to take a decision on the assurance given to the applicants to offer them appointments against the vacant posts in the impugned order dated 09.05.2013. Since the order clearly mentioned that the seniority of the applicants also stands protected, therefore, the applicants should be given an offer of appointment forthwith in case persons who were cycles selected through later recruitment cycles have been given appointment. Farther, since the impugned order also mentions that "you shall be advised of your proposed posting accordingly" this assurance should also be carried out in letter and spirit. We clarify that these directions are given to the respondents squarely in terms of their own assurance contained in their impugned orders and in the light of the Judgment of the Hon'ble Supreme Court referred to above. The respondents particularly respondent No.4 shall ensure that the directions contained in this order are complied with within a period of eight weeks from the date of receipt of this order. No order with respect to the costs."
9. Questioning the order dated 03.03.2021 passed in O.A. No. 330/000608/2014 (Pappu Kumar and 13 others v. Union of India and four others), the NER has preferred the leading writ petition.
10. The writ petition was entertained by this Court on 29.07.2021 while passing the following order:
"Heard Sri Rajnish Kumar Rai learned counsel for the petitioners and the learned counsel for the respondent.
The present petition is directed against the judgement and order dated 03.03.2021 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad in O.A. NO.608 of 2014 whereby the respondents are directed to offer appointment to the petitioners against the vacant post and further to protect the seniority of the applicants.
The submission of the learned counsel for the petitioner is that against 4549 of Group 'D' category advertised vide advertisement dated 06.12.2007 only 4087 posts had been filled up in the selection which could be finalized in the year 2012 as it was marred by the litigations before the court of law.
The submission is that the applicants were placed in the reserved list, subject to their consideration in case of availability of vacancy on account of non appointment of the selected candidates.
The last candidate selected from the list of the selected candidates in the panel was having the rank of 4957 whereas rank of the applicants were much below in the merit list. No junior to the applicants had been appointed and hence the applicants have no claim.
On the plea of the learned counsel for the respondent that approximately 500 advertised post had not been filled up and in case of filling of those vacancies, the petitioners would have got appointment, Sri Rai states that the said posts had been surrendered for administrative reasons.
The submission is that as the vacancy advertised were variable and 500 posts had been surrendered before the selection process could be finalized, the applicants/ respondents cannot have any legitimate claim to seek appointment.
To support this, Sri Rai prays for and is granted ten days' time to file supplementary affidavit to bring on record the administrative order, if any, for surrender of the advertised post and disclose the reason for surrender of the same.
As prayed, put up this matter as fresh on 10.08.2021.
Till the next date of listing, the effect and operation of the judgement and order dated 03.03.2021 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in O.A. No.608 of 2014 (Pappu Kumar and others Vs. Union of India and others) shall be kept in abeyance."
11. On 18.03.2024 further orders were passed which is being quoted hereinunder:
"1. After some argument, learned counsel appearing on behalf of Union of India prays for and is granted two weeks' time to file supplementary affidavit bringing on record number of candidates appointed in pursuance to Advertisement No.NER/RRC/D/2007/1, dated 06.12.2007 and how many persons are appointed as of now.
2. List after two weeks.
3. Interim order, if any, is extended till the next date of listing."
12. Response has been filed to the writ petition, to which a rejoinder affidavit has also been filed. Records reveals that supplementary affidavit as well as supplementary counter affidavit has been filed. Post passing of the order dated 18.03.2024 of the Writ Court, a supplementary affidavit dated 23.04.2024 has been filed by the petitioners/NER which is available on record.
Writ-A No. 1138 of 2022 (connected C1 writ petition)
13. The facts in the connected C1 petition are similar to the leading writ petition as the same is related to the same advertisement. The only distinction is that the original applicants before the Tribunal were four in number and the prayer made was for a direction to the Deputy Personnel Officer/Railway Recruitment Recruitment Cell North Eastern Railways (NER), Gorakhpur and offer appointment in favour of the original applicants in view of law laid down in the case of Dinesh Kumar Kashyap and others v. South East Central Railway and others (2019) 12 SCC 798. Reliefs sought in the connected C1 petition is as under:
"In view of the facts mentioned paragraph no.4 and 5, the applicant prays for the following relief (s):-
i. To issue an order or direction in the suitable nature directing the respondents/Railway Recruitment Cell Gorakhpur to consider and offer the appointments in favour of the applicants in accordance with the law as laid down by the Hon'ble Apex Court in case of Dinesh Kumar Kashyap as well as in the light of RBE No. 121/2005 and RBE No. 73/2008 issued by the Railway Board.
iii. To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
iv. To award the cost of the application to the applicant."
14. The original application no. 330/00208/2020 came to be decided on 17.08.2021 following and in terms of the judgment in O.A. No. 330/000608/2014 (Pappu Kumar and 13 others v. Union of India and four others).
15. Questioning the order dated 17.08.2021 in O.A. No. 330/00208/2020 of the Tribunal, the connected C1 writ petition has been preferred in which on 12.05.2022 the following orders were passed:
"Supplementary counter affidavit filed today is taken on record.
Connect and list along with the Writ A No. 8561 of 2021.
In the meantime, for the stay operating in the connected writ petition, the contempt proceedings pending before the tribunal may not be pressed by the respondent no. 1."
Writ A No. 6104 of 2023 (connected C2 writ petition)
16. The connected C2 writ petition relates to the selection held in pursuance of the advertisement dated 06.12.2007 wherein the original applicants before the Tribunal who were 16 in number out of which 11 have filed the connected C2 writ petition had applied in pursuance of the aforesaid advertisement dated 06.12.2007 for selections on Group 'D' post. Record reveals that the original applicants had filed O.A. No. 831 of 2013 with a prayer that the NER and the writ petitioners in the leading writ petition be directed to honour the assurance for offering appointment to the original applicants pursuant to the selections. The said original application is stated to have been dismissed by the Tribunal on 27.09.2013 while observing that empanelment in the select list does not give right to be appointed, particularly, when no post exist or when there is a policy decision to not fill up the post. Since, the original applicants were not accorded appointment and similarly situated candidates were able to obtain favourable orders from the Tribunal so the original applicants herein preferred O.A. No. 1044 of 2019 (Vijay Kumar Yadav and 15 others v. General Manager NER, Gorakhpur and three others) which came to be dismissed by the Tribunal on 02.02.2023 holding that since the original applicants earlier O.A. No. 831 of 2013 had been dismissed thus they are not entitled to the benefits which they are claiming in the case of similarly situated candidates.
17. Questioning the order of the Tribunal the original applicants have preferred the connected C2 writ petition seeking following reliefs:
"I. Issue a writ order or direction in the nature of Certiorari quashing the impugned judgment/order dated 02.02.2023 passed by learned Central Administrative Tribunal bench at Allahabad in Original Application No. 1044 of 2019 (Vijay Kumar Yadav and others Vs. General Manager North Eastern Railway Gorakhpur District Gorakhpur & others) (Annexure No.3) to the writ petition.
II. Issue a writ order or direction in the nature of Mandamus directing the respondents/selection committee to offer an appointment to the petitioners in order to their merit/seniority against the remaining vacant group 'D' post under the notification dated 06.12.2007 within stipulated period of time which may specified by this Hon'ble Court.
III. Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of this case.
IV. Award the cost of the writ petition in favour of petitioner."
Writ A No. 17274 of 2019 (connected C3 writ petition)
18. In the connected C3 writ petition, challenge has been made to the order dated 31.10.2018 passed in O.A. No. 330/00807/2014 (Bhupendra Kumar Yadav and others v. Union of India and others) wherein the original application was dismissed holding that the original applicants are not entitled to be offered appointment, particularly, when they have secured marks below the cut off, no vacancy in OH category is lying vacant and the panel of the year 2000 stood lapsed post holding of selections in the year 2010 and 2014.
Writ A No. 24488 of 2014 (connected C4 writ petition)
19. This petition also relates to the same selection wherein the order dated 27.09.2013 passed in O.A. No. 831 of 2013 (Shiv Bahadur Verma and 33 others v. Union of India and 4 others) was put to challenge whereby the claim of the original applicants was negated on the ground that mere selection does not confer a legal right to be accorded appointment. In the said writ petition on 29.04.2014 and 08.05.2014, the following orders have been passed:
29.04.2014 "By means of this petition the petitioner has challenged the judgment of the learned Central Administrative Tribunal, Allahabad Bench, Allahabad dated 27.9.2013 by which the O.A. filed by the petitioners has been dismissed.
We have heard learned counsel for the petitioners as well as Sri Vivek Singh for the respondents.
In view of the admitted factual position that 593 vacancies were duly advertised, against which selections were held, and a select list comprising of names of 20% in excess of the vacancies was prepared, and in the said excess list the names of the petitioners are mentioned and consequent to non-joining of the selected candidates for various reasons mentioned in the impugned judgment itself, the 593 vacancies are available for appointment. The petitioners herein are duly selected and even as per respondents the matter has been referred to the Railway Board for clearance, therefore, it is not the case of the respondents that the petitioners are not entitled for appointment against the aforesaid vacancies. Prima facie, the reliance placed by the learned Tribunal upon the various judgments referred to in its judgment impugned before us including the judgment of the constitution bench in Shankersan Das Vs. Union of India reported in AIR 1991 SC 1612 appears to be misplaced.
On a consideration of overall facts and circumstances of the case, we deem it fit to direct the respondents to keep seven Group 'D' posts vacant during the pendency of the writ petition.
The respondents are further directed to file their counter affidavit within two weeks. Learned counsel for the petitioners shall file a rejoinder affidavit within a week thereafter. List immediately thereafter.
It is made clear that it shall be open to the Board and other authorities to consider appointing the petitioners against the vacancies in question if they so choose. The pendency of this petition shall not be an impediment for the said purpose."
08.05.2014 "Having heard learned counsel for the applicant, the correction application is allowed.
The number of vacancies occurring in first line of paragraph 3 of our order dated 29.04.2014 as 593 vacancies shall be read as 4549 vacancies.
The order dated 29.04.2014 stands corrected accordingly."
20. Essentially there are two sets of writ petitions preferred against the orders of the Tribunal whereby on one hand, the original applications filed by original applicants have been allowed directing the NER to offer appointment whereas in the second set of the writ petitions relates to the dismissal of the original applications seeking grant of appointment, post selection.
21. Shri S.P. Singh, learned Additional Solicitor General of India assisted by Shri Purnendu Kumar Singh and Shri Ved Mani Tiwari and Shri Rajesh Tripathi, counsel for the NER have submitted that the orders of the Tribunal impugned in the leading and the connected C1 writ petition cannot be sustained for the following reasons:
(a). Mere selection of the original applicants does not confer indefeasible right for being accorded appointment.
(b). Though the advertisement for the Group 'D' post dated 06.12.2007 was for 4549 post (UR-SC-OBC-SC-ST) however, consequent to surrendering of 500 vacancies of Trackman by the Construction Organisation, the total vacancies advertised were limited to 4049, as many as 4087 candidates were selected and appointed but the original applicants figured lower in the select list thus they cannot be offered appointment against non-existent post.
(c). Though it was specifically pleaded and argued before the Tribunal that as many as 500 vacancies were surrendered reducing the original advertised vacancies from 4549 to 4049 but the said crucial aspect having vital importance was not adverted in the impugned judgements.
(d). In absence of any finding recorded by the Tribunal whether the NER was justified or not in surrendering 500 posts of track-man no direction could have been issued requiring the NER to offer appointments to the original applicants.
(e). Reliance placed by the Tribunal upon the judgment in the case of Dinesh Kumar Kashyap (supra) is misplaced and out of context as the selections in the present case are different and distinct from those in the case of Dinesh Kumar Kashyap (supra).
(f) In view of Railway Board circular dated 09/10.07.1964 as well as holding of subsequent selections in the year 2010-12, 2012-13, 2013-14 and 2018-19 no direction could have been issued for according appointment to the original applicants.
(g) The orders of Deputy Personnel Officer/Railway Recruitment Recruitment Cell North Easter Railways (NER), Gorakhpur dated 09.05.2013 and 17.06.2013 did not partake the character of an assurance, however, it only provided that since the original applicants were below in the select list and there were no vacancies, their cases may be considered in future in those contingencies wherein there is any vacancy which occurred post demand from the division/unit or in the cases wherein the selected candidates did not join for certain reasons such as being medically unfit or impersonation proved.
22. Countering the submission of learned ASGI who appears for the NER, Shri Vinod Kumar, Shri Seemant Singh and Shri Suyash Pandey who appears for the original applicants have made the following submissions:
(a) Though mere selection does not confer an indefeasible right to the offered appointment but the same does not give leverage to the employer to act arbitrarily while keeping the post vacant without any justification.
(b) The theory propounded by the employers that post surrendering of 500 vacancies Group 'D' vacancies now no vacancy exist is preposterous, particularly, when the said ground was not taken in the order dated 09.05.2013/17.06.2013. Thus, in view of the law laid down in the case of Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978 SC 851, the employers cannot supplment their case by means of their affidavit.
(c) There is no provision for surrendering the post as the advertisement does not provide for the same.
(d) There are various documents available on record which remains unrebutted that numerous vacancies under Group 'D' post lying vacant against which the original applicants can be accommodated.
(e) The case of the original applications stand squarely covered by the decision in the case of Dinesh Kumar Kashyap (supra).
(f) As regards the arguments raised by the original applicants in the connected C2, C3 and C4, petitions are concerned, it has been argued that the Tribunal committed manifest error of law in rejecting the challenge of the original applicants, particularly, when the original applicants were selected candidates and on account of the arbitrary action of the employers they were not offered appointment in that regard.
23. We have heard the learned counsel for the parties and have perused the record carefully.
24. Evidently, the dispute which gave rise to filing of the original applications before the Tribunal originates from the selection proceedings held in pursuance of an Employment Notice No. NER/RRC/D/2007/1 dated 06.12.2007 for 4549 post of Group 'D' categories. It is not in dispute that the advertised 4549 vacancies stood reduced to 4049 consequent to surrendering of Group 'D' post. As many as 4087 candidates were selected. The controversy stood trigerred when the original applicants were not offered appointment. Reasons exhibited by the NER was that since the original applicants rank lower in the select list and the total number of vacancies stood filled in thus they cannot be offered appointment. The same led to filing of multiple original applications starting from O.A. No. 163 of 2013 (Rahul Kumar and 32 others v. Union of India and four others) and O.A. No. 167 of 2013 (Saroj Kumar Singh and 15 others v. Union of India and four others) which came to be decided on 13.02.2013 and 21.02.2013 requiring the competent authority to consider the representations of the original applicants. Thereafter orders have been passed by the Deputy Personnel Officer/Railway Recruitment Recruitment Cell North Eastern Railways (NER), Gorakhpur on 09.05.2013 and 17.06.2013. The relevant extract of the order dated 09.05.2013 is being quoted hereinunder:
"Accordingly in the important Notice Dated 12.11.11 in the News papers while calling candidates for document verification and medical examination it was clearly mentioned that "only calling of candidates for Document Verification and Medical Examination does not confer any right to candidate for his appointment in railways. In this way a provisional panel of 3956 candidates have been issued and for remaining 593 candidates, posting from the candidates who were called 20% in excess over and above, the advertised vacancies is to be issued in lieu of those found impersonated, absent in document verification, did not submit their medical fitness certificate, is to be done which is pending for want of a clarification from Ministry of Railways, Railway Board regarding Policy of posting from the waiting list in place of absent/impersonation sustained/medically unfit candidates etc. Your rank in the merit list against UR/SC/ST/OBC is 5154 where as rank of the last man in the provisional panel for UR/OBC/SC/ST is 4957. Since you are junior in rank in reference to the last man placed on the panel, you could not be placed on the panel and whenever there shall be a demand from the Division/Unit for posting in place of candidates who did not join or against those who were absent medically unfit or impersonation sustained, your case according to your merit position shall be considered and you shall be advised of your proposed posting accordingly, through Website as well as official letter from the side of the concerned Division/unit regarding your proposed posting.
Further recruitment process on 2010 & 2012 have been initiated and processed under the Ministry of Railways annual programme of recruitment against Group 'D' categories in PB-I (5200-20200) Grade Pay 1800/- (erstwhile Group 'D). However, seniority of candidates selected through earlier panel is always protected under the establishment rules enforced for the time being."
(emphasis by Court)
25. In the similar manner, speaking orders were passed with respect to other original applicants. Since the original applicants in the leading and the C1 petitions were not offered appointment despite the so-called assurance, they preferred O.A. No. 330/00608/14 (Pappu Kumar and 13 others v. State of U.P. and four others) in which in para 14 of the order of the Tribunal it was observed as under:
"14. This OA is, accordingly, disposed of with the direction to the respondents to take a decision on the assurance given to the applicants to offer them appointments against the vacant posts in the impugned order dated 09.05.2013. Since the order J\Cearly mentioned that the seniority of the applicants also stands protected, therefore, the applicants should be given an offer of appointment forthwith in case persons who were cycles selected through later recruitment cycles have been given appointment. Further, since the impugned order also mentions that "you shall be advised of your proposed posting accordingly" this assurance should also be carried out in letter and spirit. We clarify that these directions are given to the respondents squarely in terms of their own assurance contained in their impugned orders and in the light of the Judgment of the Hon'ble Supreme Court referred to above. The respondents particularly respondent No.4 shall ensure that the directions contained in this order are complied with within a period of eight weeks from the date of receipt of this order. No order with respect to the costs."
26. Following the order passed on 03.03.2021 in the case of Pappu Kumar (supra) impugned in the leading writ petition the original applications preferred by original applicants in O.A. No. 330/00208/2020 (Sunil Kumar and others v. Union of India and others) came to be disposed of in similar terms. With respect to the fraction who were unsuccessful before the Tribunal, they preferred writ petition before this Court which is titled connected writ petition C2, C3, C4.
27. Primarily, the bone of contention between the parties is firstly whether it was open for the NER to resile from the assurance given by them to offer appointment to the selected candidates, secondly, legality of the order of the NER in surrendering of 500 posts while reducing the advertised post from 4549 to 4049. In order to address the said issue, this Court is required to analyse the pleadings set forth by the respective parties before the Tribunal. Pleadings reveal that in paragraph no. 2 of the counter reply of NER a specific pleadings have been made that 500 vacancies of Trackman were surrendered by the Construction Organisation, thus, the number of vacancies remained 4049 instead of 4549 and the number of selected candidates were 4087. In order to substantiate the same 'Annexure CR-1' was filed. In para 5, it was further pleaded that a panel of the 2007 selection was prepared on 20.08.2012 and thereafter a fresh panel was based upon 2010 selection was published on 15.02.2013. In para 6 of the counter affidavit, Railway Circular dated 9/10.07.1964 was also annexed so as to contend that the life of the panel is one year and thus it was claimed that there were no vacancies lying vacant against which the original applicants could have been offered appointment since they rank lower in the merit list. The Tribunal despite the aforesaid specific pleadings came to the conclusion, that, in view of the judgment in the case of Dinesh Kumar Kashyap (supra), it was not open for the NER to have denuded the original applicants, the benefits of selection for being offered appointment in the wake of the fact that assurance has been given by them. Moreover, we find that the Tribunal went on to direct the NER to offer appointment to the original applicants without recording any finding as to whether NER was justified in reducing the advertised posts. To put it straight what was required of the Tribunal was to record a specific finding about the legality of the actions of the NER in reducing the advertised posts. In absence of any finding to the said effect, no directions could have been issued for offering appointment to the original applicants, particularly, when it was the consistent case of the NER that there were no posts lying vacant against which the original applicants could have been accommodated.
28. Importantly, also the Tribunal got swayed while observing and holding that there was a specific assurance extended by the NER in the orders dated 09.05.2013 and 17.06.2013 that the original applicants will be offered appointment. A close reading of the said speaking orders reveal that it was not unconditional but the same was conditional and qualified providing that since the original applicants were junior in the rank in reference to the last selected candidates placed on the panel and in the contingency when there shall be a demand from division/unit from posting in place of the candidates who did not join or were found medically unfit or impersonation proved then the original applicants who were lower in the panel their cases may be considered and follow up actions will be taken. It is a cardinal principle of law that the entire document is to be read as a whole and not in isolation. The Tribunal seems to have overlooked the aforesaid aspect of the matter. Insofar as the reliance placed upon the judgement in the case of Dinesh Kumar Kashyap (supra) is concerned, it has not been disputed before us that the selections in the said case are different from the present one. Pertinently, a categorical finding ought to have been returned by the Tribunal with regard to the applicability of the said judgment in the present case which is seemingly lacking.
29. The argument raised on behalf of the original applicants that the number of vacancies could not have been reduced denuding the original applicants of the benefits and the order is to be judged based on reasons mentioned therein and the same cannot be supplemented by fresh reasons in the shape of the affidavit is concerned, the same is also dependant upon the core and the fundamental issue relatable to the legality and the validity of the decision of surrendering of the post. Pertinently, the Tribunal has not recorded any finding on the said aspect.
30. Interestingly, the Tribunal while disposing of the O.A. No. 330/000208/2020 on 17.08.2021 relied upon the order dated 03.03.2021 passed in O.A. No. 608 of 2014 which itself was stayed by this Court in the leading writ petition on 27.09.2021. As regards, connected C2, C3 and C4 writ petitions are concerned, they are, at the instance of original applicants against the orders passed by the Tribunal based upon the plea that the Group 'D' vacancies stood surrendered resulting in reduction of the advertised post, the original applicants could not be offered appointment. Apparently, the issues raised in all the writ petitions are one and the same relatable to the import and the impact of the surrendering of posts resulting in reduction of Group 'D' post in the matter of selection. Probably for the same reasons, the writ petitions were consolidated together.
31. We have, meticulously, scanned the documents available on record and find that the fundamental and the core issues as discussed above which goes to the root of the matter have neither been addressed nor any finding has been recorded in that regard, thus, this Court while exercising the writ jurisdiction is not in a position to delve into the said aspects, particularly, when the Tribunal being the Court of first instance was required to address the said issues while returning the findings in that regard.
32. Accordingly, we are of the firm opinion that the matter needs to be revisited by the Tribunal, consequently, the writ petitions are being decided in the following manner:
(a). The judgement and the order dated 03.03.2021 of the Tribunal in O.A. No. 608 of 2014 (Pappu Kumar and others v. Union of India and others) impugned in the leading writ petition, the order dated 17.08.2021 of the Tribunal in O.A. No. 208 of 2020 (Sunil Kumar and others Vs. Union of India and another) impugned in the connected C1 writ petition, the order dated 02.02.2023 of the Tribunal in O.A. No. 1044 of 2019 (Vijay Kumar Yadav and others Vs. General Manager North Eastern Railway Gorakhpur, District Gorakhpur and others) impugned in the connected C2 writ petition, the order dated 31.10.2018 of the Tribunal in O.A. No. 330/00807 of 2014 (Bhupendra Kumar Yadav and others Vs. Union of India and another) impugned in the connected C3 writ petition, the order dated 27.09.2013 of the Tribunal in O.A. No. 831 of 2013 impugned in the connected C4 writ petition, are set aside.
(b). The original applications stand restored to its original number requiring the Tribunal to decide the controversy afresh.
33. It is open for the parties to take appropriate proceedings for expeditious disposal of the original applications.
34. Needless to point that passing of the order today may not be construed to be an expression on merits as the order of the Tribunal has been set aside on technical grounds, thus, it is open for the parties to raise legal and factual pleas as available to them.
35. With the aforesaid observations, the writ petitions stand partly allowed.
Order Date: 17.05.2024 A.Prajapati (Vikas Budhwar, J.) (Arun Bhansali, C.J.)