Kerala High Court
Zulfikkhar Ahamed N vs Union Of India on 11 March, 2020
Bench: K.Vinod Chandran, P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
OP (CAT).No.5 OF 2015(Z)
AGAINST THE ORDER IN OA 187/2011 DATED 01-04-2013 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
ZULFIKKHAR AHAMED N
AGED 49 YEARS
S/O.THE LATE N. MOHAMMED ABDU RAHIMAN, PRESENTLY
WORKING SENIOR TECHNICIAN/TRAIN LIGHTING, OFFICE OF
THE SENIOR SECTION ENGINEER/ELECTRICAL/POWER,
SOUTHERN RAILWAY, PALAKKAD DIVISION, RESIDING AT
QUARTER NO.138 A, HEMAMBIKA NAGAR, RAILWAY COLONY,
KALLEKULANGARA POST, OLAVAKKODE, PALAKKAD DISTRICT-
678009.
BY ADVS.
SMT.K.RADHAMANI AMMA
SRI.ANTONY MUKKATH
SRI.C.P.ANIL RAJ
SRI.JOS LEO JOSE
SRI.K.R.RANJITH
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI-
110 001.
2 GENERAL MANAGER,
SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN
POST, CHENNAI-3.
3 CHIEF PERSONNEL OFFICER,
SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN
POST, CHENNAI-3.
4 SENIOR DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, PALAGHAT DIVISION, PALAKKAD-678002.
OP(CAT) No.5 of 2015 2
5 SARAVANA KUMAR,
TECHNICIAN GRADE-II, PRESENTLY WORKING AS JUNIOR
ENGINEER, POWER/SOUTHERN RAILWAY/ERODE, SALEM
DIVISION, THROUGH 4TH RESPONDENT.
6 P.A.NOUSHAD,
TECHNICAL GRADE-II/PRESENTLY WORKING AS JUNIOR
ENGINEER, POWER/SOUTHERN RAILWAY/MANGALORE THROUGH
4TH RESPONDENT.
7 DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD-
678002.
8 T.C. JOHNSON,
SENIOR DIVISIONAL ELECTRICAL ENGINEER, SOUTHERN
RAILWAY, THIRUVANANTHAPURAM DIVISION,
THIRUVANANTHAPURAM- 695041, PRESENTLY WORKING AS
DEPUTY CHIEF ENGINEER, SOUTHERN RAILWAY, RAILWAY
ELECTRIFICATION, KOZHIKODE- 673011.
R1-4, R7 BY SRI.B.RAJESH, SC, RAILWAYS
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11.03.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) No.5 of 2015 3
J U D G M E N T
Vinod Chandran, J.
The question agitated before this Court is as to whether the Tribunal was correct in having rejected the O.A, when at the earlier instance, further valuation was directed by the Central Administrative Tribunal(for short 'the Tribunal') itself.
2. The issue agitated by the petitioner before the Tribunal in the earlier O.A. No. 275 of 2008 was as to whether the valuation conducted in a Limited Departmental Competitive Examination (for short 'LDCE')was proper or not. The selection was carried out by the Railways for the purpose of filling up of 25% quota by LDCE on merit. A cut off mark of 60% was provided and two persons who obtained marks above the cut off mark was included OP(CAT) No.5 of 2015 4 in the panel for selection. The petitioner got only 55%. The petitioner challenged the same on the ground that the valuation was not proper.
3. The Tribunal, at the first instance by Annexure-A18 order found that the evaluation made by an expert would not be normally interfered with by courts. Even then the Tribunal felt that there was some discrepancy by reason of the answer key having not provided the answer for 1 or 2 questions. It was hence directed that a Senior officer of the Railways will carry out valuation afresh.
4. A Senior Divisional Electrical Engineer carried out the valuation as per the directions issued by the Tribunal which was communicated to the applicant as per Annexure-A21. The present O.A was filed assailing Annexure-A21 on a couple of grounds. One of the grounds raised was that earlier the Divisional Railway Manager had approved the selection panel while the valuation now carried out is by the Senior Divisional OP(CAT) No.5 of 2015 5 Electrical Engineer who is in a lower cadre. It was also contended that Annexure-A21 is a cryptic order and is not in compliance with the directions of the Tribunal.
5. The Tribunal rejected the O.A on the ground that there is constructive res judicata. We do not think that the Tribunal was correct in rejecting the O.A on that ground. Especially since, Annexure-A18 directed a fresh valuation. In any event, an evaluation has been carried out by a Senior officer who is the Senior Divisional Electrical Engineer. Merely because the Divisional Railway Manager had issued the select panel, we cannot presume that he would have carried out the evaluation at the earlier instance. The evaluation necessarily would have to be carried out by a person conversant with the subject in which the examination was conducted. We notice that the subject is scientific in nature and the Senior Divisional Electrical Engineer is competent to carry out such evaluation.
OP(CAT) No.5 of 2015 6
6. On an evaluation carried out, the Valuer agreed with the earlier valuation which cannot be said to be a cryptic order, for reason only of agreeing with the earlier valuation. What would have been ideal is to put marks on re-valuation and just communicate that to the petitioner. But, since the exercise was carried out, pursuant to a judicial order, the Valuer thought it fit to make a speaking order. For that reason we cannot find it to be vitiated, since then a communication of the marks on re-valuation would be assailed as not supported by reasons and not only cryptic but also abrupt.
7. It was found by the Senior Divisional Electrical Engineer that there is no question having more than one answer and no correct answer was rejected. It was also found that no answer has been left without valuation and there is no mistake in totalling. This can only be taken as the Senior Divisional Electrical Engineer having agreed with the earlier valuation; on re-valuation OP(CAT) No.5 of 2015 7 carried out. We do not think there is any scope for further interference in the matter.
The Original Petition is rejected. No order as to costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
P.V.KUNHIKRISHNAN
Pkk JUDGE
OP(CAT) No.5 of 2015 8
APPENDIX
PETITIONER'S EXHIBITSN & ANNEXURES:
EXHIBIT P1 EXHIBIT P1:PHOTOCOPY OF THE OA.NO.187 OF 2011 FILED BY THE PETITIONER/APPLICANT EXHIBIT P2 EXHIBIT P2:PHOTOCOPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 4 AND 7 EXHIBIT P3 EXHIBIT P3:PHOTOCOPY OF THE REPLY STATEMENT OF THE 8TH RESPONDENT EXHIBIT P4 EXHIBIT P4:PHOTOCOPY OF THE REJOINDER STATEMENT TO THE REPLY STATEMENT OF THE RESPONDENTS.
EXHIBIT P5 EXHIBIT P5:PHOTOCOPY OF THE REPLY TO REJOINDER OF THE RESPONDENTS 1 TO 4, 7 & 8.
EXHIBIT P6 EXHIBIT P6:PHOTOCOPY OF THE REPLY STATEMENT OF THE 6TH RESPONDENT. EXHIBIT P7 EXHIBIT P7:A TRUE COPY OF THE RELEVANT PAGE OF ELECTRICAL SAFETY MANUAL ISSUED BY THE CHIEF ELECTRICAL ENGINEER, SOUTHERN RAILWAY.
EXHIBIT P8 EXHIBIT P8:A PHOTOCOPY OF THE DIAGRAM PUBLISHED BY THE TECHNICAL TRAINING CENTRE, ELECTRICAL WORKSHIP, PERAMBUR, SOUTHERN RAILWAY EXHIBIT P9 EXHIBIT P9:A PHOTCOPY OF THE REPLY DATED 18.01.2011 EXHIBIT P10 EXHIBIT P10:A PHOTOCOPY OF THE ORDER DATED 01.04.2013 IN OA. NO.187 OF 2011 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
ANNEXURE A1 TRUE COPY OF THE OFFICE ORDER BEARING NO.JE.60/07 DATED 19.10.2007 ISSUED BY THE 4TH RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE LETTER BEARING OP(CAT) No.5 of 2015 9 NO.J/P.608/111/MES/VOL.VII(LDCE)(PT) DATED 14.09.2007 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A21 TRUE COPY OF THE LETTER BEARING NO.J/P.OA 275/08 DATED 05.05.2010 ISSUED BY THE 4TH RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE NOTIFICATION BEARING NO.J/P.608/111/MES/VOL.VII DATED 30.11.06/01.12.06 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE LETTER BEARING NO.J/P.608/111/MES/VOL.VII(LDCE) DATED 04.05.2007 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE LETTER BEARING NO.J/P.608/111/MES/VOL.VII(LDCE((PT) DATED 21.08.2007 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED 27.09.2007 ADDRESSED TO THE 7TH RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE LETTER BEARING NO.SRMU/PGT NO.812 DATED 27.09.2007 FROM THE DIVISIONAL SECRETARY OF THE SOUTHERN RAILWAY MAZDOOR UNION, ADDRESSED TO THE 7TH RESPONDENT. ANNEXURE A8 TRUE COPY OF THE LETTER BEARING NO.J/P.608/111/MES/VOL.VII (LDCE)(PT) DATED 15.10.2007 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.
ANNEXURE A9 TRUE COPY OF THE RAILWAY BOARD LETTER E(NG)I-98/PM1/17 DATED 20.10.1999 (LESS ITS ENCLOSURE) AS PUBLISHED IN BAHRI'S PUBLICATION OF RAILWAY BOARD ORDERS, 1999.
ANNEXURE A10 TRUE COPY OF THE LETTER BEARING NO.SRMU/PGT NO.830 DATED 18.10.2007 SUBMITTED BY THE SOUTHERN RAILWAY MAZDOOR UNION.
ANNEXURE A11 TRUE COPY OF THE LETTER BEARING OP(CAT) No.5 of 2015 10 NO.SRMU/PGT NO.832 DATED 23.10.2007 SUBMITTED BY THE SOUTHERN RAILWAY MAZDOOR UNION.
ANNEXURE A12 TRUE COPY OF THE LETTER BEARING NO.SRMU/PGT NO.905 DATED 06.02.2008 SUBMITTED BY THE SOUTHERN RAILWAY MAZDOOR UNION.
ANNEXURE A13 TRUE COPY OF THE LETTER BEARING NO.J/P/PG/RTI/2007-08/102 DATED 26.02.2008 FROM THE PUBLIC INFORMATION OFFICER.
ANNEXURE A14 TRUE COPY OF QUESTION PAPER. ANNEXURE A15 TRUE EXTRACT OF INDIAN ELECTRICITY RULES AND REGULATIONS, 1956 AS PUBLISHED BY THE RAILWAYS.
ANNEXURE A16 TRUE EXTRACT OF PARA 9.5.7 OF THE BOOK TITLED TRAIN LIGHTING ISSUED BY THE RAILWAYS.
ANNEXURE A17 TRUE COPY OF PARA 4.18(2) OF THE BOOK PUBLISHED BY THE RESPONDENT RAILWAY. ANNEXURE A18 TRUE COPY OF THE ORDER DATED 18 NOVEMBER 2009 IN OA 275/08 RENDERED BY THIS HON'BLE TRIBUNAL.
ANNEXURE A19 TRUE COPY OF THE REPRESENTATION DATED 02.12.2009 ADDRESSED TO THE 7TH RESPONDENT.
ANNEXURE A20 TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE OFFICE OF THE 4TH RESPONDENT UNDER NO.J/P.OA 275/08 DATED 10.03.2010.
ANNEXURE A22 TRUE COPY OF COMMON ORDER DATED 26 OCTOBER 2010 IN CP(C) 17/2010 AND MA 538/2010 IN OA 275/08 RENDERED BY THIS HON'BLE TRIBUNAL.
ANNEXURE A23 TRUE COPY OF THE REQUEST DATED 12.05.2010 ADDRESSED TO THE PUBLIC INFORMATION OFFICER AND SR.DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT.
OP(CAT) No.5 of 2015 11ANNEXURE A24 TRUE COPY OF THE LETTER BEARING NO.J/P.PG/RTI/2010-11/32 DATED 31.05.2010 ISSUED BY THE PUBLIC INFORMATION OFFICER AND SR.DOP/PGT. ANNEXURE R1 TRUE COPY OF THE OA 275/2008 WITHOUT ANNEXURE.
ANNEXURE R2 TRUE COPY OF THE LETTER DATED 25.03.2010.
ANNEXURE R3 TRUE COPY OF THE ORDER DATED 26.10.2010.
ANNEXURE R4 TRUE COPY OF THE RELEVANT PORTION OF THE INSTRUCTIONS.
ANNEXURE R5 EXTRACT COPY OF THE GUIDELINES TO ACHIEVE ELECTRICAL FUNCTIONAL REQUIREMENTS AT POWER SUPPLY INSTALLATIONS ANNEXURE R6 TRUE COPY OF POWER SUPPLY DIAGRAM OF ROOF MOUNTED PACKAGE UNIT.
ANNEXURE R7 THE CIRCUIT DISGRAM OF KEL MA,E RECTIFIER-CUM-REGULATOR.
ANNEXURE R8 TRUE COPY OF THE ORDER DATED 06.04.2010.
ANNEXURE R6(A) TRUE COPY OF THE LETTER BEARING NO.J/E150/1/5/SUP.TRAINEE, DATED 22.10.2007 ISSUED FROM OFFICE OF THE SR.DEE/G/PALGHAT.
ANNEXURE R6(B) TRUE COPY OF THE OFFICE ORDER BEARING NO.J/E.32/2009 DATED 16.07.2009 ISSUED BY THE 4TH RESPONDENT.
ANNEXURE R6(C) TRUE COPY OF THE LETTER BEARING NO.J/R612/TRD/VOL.3 DATED 23.07.2010 ISSUED BY THE 4TH RESPONDENT.
ANNEXURE R6(D) TRUE COPY OF CERTIFICATE DATED 16.04.2010 ISSUED BY DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT. ANNEXURE R6(E) TRUE COPY OF CERTIFICATE DATED OP(CAT) No.5 of 2015 12 13.4.2007 ISSUED BY DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT. ANNEXURE R6(F) TRUE COPY OF CERTIFICATE NO.12313 DATED 30.07.2011 ISSUED FROM CENTRALIZED ELECTRICAL TRAINING INSTITUTE CENTRAL RAILWAY, THAKURLI, MUMBAI.
ANNEXURE R6(G) TRUE COPY OF RELIEVING LETTER BEARING NO.ETC/27/09 DATED 22.01.2009 ISSUED FROM ELECTRICAL TRAINING CENTRE, PERAMBUR, CHENNAI, SOUTHERN RAILWAY. ANNEXURE R6(H) TRUE COPY OF NOMINATION LETTER NO.J/E.150/T/SUP DATED 04.09.2008 ISSUED FROM DIVISIONAL ELECTRICAL ENGINEER/G/SOUTHERN RAILWAY, PALGHAT.