Central Administrative Tribunal - Jaipur
Vijendra Singh vs M/O Railways on 5 April, 2022
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OA No. 237/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 237/2016
Order reserved on 30.03.2022
DATE OF ORDER: 05.04.2022
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
1. Vijendra Singh S/o Bahadur Singh, aged about
37 years R/o Village Alampura, Post Badangarh,
Tehsil Chirawa, District Jhunjhunu.
2. Surendra Singh S/o Zila Singh, aged about 40
years R/o Village & Post Khachroli, Tehsil
Matanhail, District Jhajjar (Haryana).
3. Deva Ram S/o Bheekharam, aged about 39 years
R/o Plot No. 100, Shiv Shakti Nagar, Jhalamand,
Jodhpur.
4. Prayag Singh S/o Shri Uttam Singh, aged about
37 years, R/o P.No. 176, Kh. No. 112, Goutam
Nagar, Banar Road, Nandari Tehsil Jodhpur,
District Jodhpur (Raj).
....Applicants
None present for the applicants.
VERSUS
1. Union of India through General Manager, North
Western Railway, Jawahar Circle, Jagatpura,
Jaipur.
2. Chief Personnel Officer, North Western Railway,
Jawahar Circle, Jagatpura, Jaipur.
3. Chairman, Railway, Railway Recruitment Cell,
North Western Railway. Opp. Divisional Railway
Manager Office, Power House Road, Jaipur-
302006.
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OA No. 237/2016
4. The Assistant Personnel Officer, (Recruitment
and Training), Railway Recruitment Cell, North
Western Railway, Opp. Divisional Railway
Manager Office, Power House Road, Jaipur-
302006.
.... Respondents
Shri Anupam Agarwal, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"(i) The impugned order / letter dated 10.11.2015 may kindly be quashed and set aside.
(ii) The respondents may kindly be directed to allow the applicants in further selection process i.e. medical examination by considering their candidature in Ex-serviceman category and if they found in merit, they may be given appointment on the post of Group-D with all consequential benefits.
(iii) Any other directions and orders, which are, deem proper in the facts and circumstances of the case may kindly be allowed to the Applicants."
2. The brief facts of the case, as stated by the applicants, are that the respondents had issued an Employment Notification No. 03/2013 dated 3 OA No. 237/2016 14.12.2013 for recruitment of several Group 'D' posts in Pay Band-1 (Rs. 5,200-20,200) with Grade Pay of Rs. 1800/- and applicants who belonged to Ex- Serviceman category had applied for the same as they fulfilled all the requisites for the said appointment. After being issued a call letter, they appeared for the written examination held on different dates and after qualifying the same, they were called for Physical Efficiency Test (PET), in which they appeared on 26.02.2015 and were declared pass. Thereafter, they were called for documents verification on different dates. Applicants came to know that after completion of selection process, they were temporarily disqualified by assigning reason that they have filled the Certificate No. in Column No. 12 of the application form in place of Discharge Book No. despite this fact that in Column No. 12 of the application form, the respondents sought the information in respect of Discharge Book No. / Certificate No. and, therefore, the applicants opted the Certificate No. in the column no. 12 of the application form and, thus, there is no fault on the part of the applicants. Thereafter, they tried to contact the respondents to consider their candidature under Ex-serviceman category but it was all in vain and ultimately they sent a legal notice 4 OA No. 237/2016 dated 30.05.2015 (Annexure A/6) to the respondents through their Advocate, but the same was not replied. Thereafter, under RTI Act, they made an application and sought information. Respondents vide letter dated 18.01.2016 along with letter dated 22.01.2016 (Annexure A/7), informed the applicants that the recruitment process is still not completed and Railways have issued panel of only 46 Ex-serviceman though in recruitment process, 263 candidates in Ex- serviceman category have qualified the written examination, out of which only 81 candidates have qualified the PET. Thus, it is clear that number of posts of Trackman under Ex-serviceman category are still lying vacant with the respondents but the applicants have been deprived from the appointment only on the ground of minor mistake of filling the certificate number in the application form in place of Discharge Book no. Therefore, the applicants filed SBCWP No. 10388/2015 before the Hon'ble High Court and during the pendency of the Writ Petition, the respondents rejected their candidature vide impugned order / letter dated 10.11.2015 (Annexure A/1) only on the ground that the Discharge Book no. mentioned in the application form are not compared with the original discharge book. Ultimately, the Writ Petition 5 OA No. 237/2016 was dismissed by the Hon'ble High Court vide its order dated 11.03.2016 with liberty to approach the CAT for redressal of their grievances. Therefore being aggrieved by the impugned order / letter dated 10.11.2015 (Annexure A/1) and action of the respondents to deprive the applicants from appointment under Ex-Serviceman category, they have approached this Tribunal for redressal of their grievances.
3. This Tribunal vide its order dated 22.04.2016 had issued notices to respondents and had passed interim orders to the extent that in case the selection process has not been completed as on date with reference to Employment Notification dated 14.12.2013 and vacancies are still available in Ex-serviceman quota, then one post each, for the 4 applicants, may be kept vacant till the next date of hearing. The said interim relief is continuing till date.
4. After issue of notices, the respondents have filed their reply stating that bare perusal of the notification would demonstrate that despite specific instructions in the employment notice, applicants failed to follow the same inasmuch as they failed to fill the discharge 6 OA No. 237/2016 book number/certificate number in Col. No. 17 of the application form. The discharge book of ex-serviceman army personnel is an important authentic document wherein the details of appointment, character, army rule, date of discharge, period of service, photo, discharge certificate number and reasons of discharge are given. The same was disclosed at the time of documents verification. Applicants, however, filled their PPO number which was neither found mentioned in Column No. 17 of the application form nor contained such details. Applicants had applied on-line. In case, he had applied off-line then his candidature would have been cancelled at the initial scrutiny level as respondents had cancelled many such applications who had applied off-line. Para 15.5 of the employment notification specifically stipulates that the candidates claiming the benefit under the category of ex- serviceman shall produce a copy of discharge certificate issued by the competent authority at the time of documents verification and enclose a copy of the same with the application form, failing which his/her candidature will not be treated as ex- serviceman. Applicants because of their on-line applications and, thus, absence of any document along with it treating their applications as correct were 7 OA No. 237/2016 allowed to participate in the selection, but the same does not create any right in their favour and, therefore, any challenge for the relief is without any substance. It is erroneous to state that Column No. 12 pertains to service details of ex-serviceman, in fact it is Column No. 17 which provides for it. As the lapse committed is by the applicants themselves, therefore, they have no right to seek appointment and their candidatures were rightly rejected. Thus, the applicants have no claim for the said post and the present O.A. deserves to be dismissed on the said ground itself and the interim order dated 22.04.2016 be vacated as their action is in consonance with the rules. In support of their contentions, the respondents have relied upon the following judgments:-
"(1) Hon'ble Apex Court's judgement in the case of Bedanga Talukdar vs. Saifudaullah Khan & Ors., reported in 2011 (12) SCC 85.
(2) Hon'ble Apex Court's judgement in the case of Union of India & Anr. vs. Sarwan Ram & Anr. [SLP (Civil) No. 706/2014] decided on 08.10.2014."
5. The applicant has not filed any rejoinder denying the submissions of the respondents.
6. The respondents have filed an MA No. 642/2017 for bringing additional facts on record in compliance of 8 OA No. 237/2016 Tribunal's order dated 28.08.2017 and stated that there is no vacancy available in the quota as the unfilled vacancies for ex-serviceman had been filled by other eligible candidates. They further added that against 184 vacancies, 46 ex-serviceman candidates were empanelled. However, subsequently the remaining unfilled vacancies had been filled by preparing the panel on 06.10.2015 as per Railway Board letter No. E(NG)-II/2009/RR-1/10 dated 23.07.2015 and a copy of Note clarifying this aspect is enclosed as Annexure- MA/1. Thus, all vacancies notified in the notification No. 3/13 for ex-serviceman quota stood filled prior to passing of the interim directions of this Tribunal dated 22.04.2016. The said M.A. has been allowed by this Tribunal vide its order dated 25.07.2018 and the additional facts are taken on record.
7. The applicants have filed an Additional Affidavit in compliance of order dated 25.07.2018 passed by the Tribunal wherein they were granted liberty to file counter to the additional facts brought on record by the respondents. Applicants state that the contention of the respondents that unfilled vacancies for the ex- serviceman category have been filled by other eligible 9 OA No. 237/2016 candidates and that there is no vacancy available in the quota are false and baseless. From perusal of Annexure A/7 (RTI information dated 18.01.2016), it is clear that total 263 ex-serviceman candidates had qualified the written examination, out of which, 81 ex- serviceman candidates declared qualified in PET and panel of 46 ex-serviceman candidates have been declared by the RRC and selection process is not completed till date. Applicants further stated that as per information asked by the applicants under RTI Act, respondents vide letter dated 04.08.2016 (Annexure A/8 annexed with MA No. 36/2017), wherein it was informed that in present recruitment, 147 posts in ex- serviceman category are lying vacant due to non- availability of eligible candidates. Thus, it is clear that the contention of the respondents that remaining vacant posts were filled vide panel no.
740E/RRC/Grade Pay 1800/3/2013/result/panel dated 06.10.2015 is false and baseless. Also information provided by the respondents vide letters dated 15.12.2017 along with letters 08.12.2017 & 13.12.2017, it is clear that 138 posts in ex- serviceman category are lying vacant and the same have still not been filled and, therefore, applicants are entitled for appointment in the posts in question. 10 OA No. 237/2016
8. We have heard Shri R.K. Saini, learned counsel for the applicants on 29.03.2022 and also gone through the written arguments including the judgments relied upon by the applicants and have also heard Shri Anupam Agarwal, learned counsel for the respondents on 30.03.2022 and also gone through the judgments relied upon by the respondents.
9. The applicants and the respondents reiterated their submissions as stated earlier.
10. The question which requires to be considered is whether the candidature of the applicants ought to have been cancelled on the ground of human error / bonafide mistake in not filling up column 17 about the Discharge Book Number/ Certificate Number and when they have already been protected by the interim directions and when no third party rights are affected.
11. After hearing the parties and perusing the pleadings, the factual matrix of the case is that applicants belonging to Ex-serviceman category had applied online for Group 'D' posts, [Pay Band-1 (Rs. 5,200-20,200) with Grade Pay of Rs. 1800/-], in pursuance to the Employment Notification No. 03/2013 dated 14.12.2013 after fulfilling the criteria 11 OA No. 237/2016 as required. After being issued a call letter, they appeared for the written examination held on different dates and after qualifying the same, they were called for Physical Efficiency Test (PET), in which they appeared on 26.02.2015 and were declared pass. Thereafter, they were called for documents verification on different dates at RRC, Jaipur. At the time of documents verification, respondents have verified all the documents and have found that while filling Column No. 17 of the application form, at the place of Discharge Book Number/ Certificate Number, applicants have filled details of PPO, which was not required. Respondents state that the applicants are themselves responsible for the lapse committed by them and, therefore, they have no right to seek employment. Since there was no response from the respondents, the applicants sent legal notice to the respondents but the same too was not responded. Thereafter, applicants made application under RTI Act seeking several information pertaining to the vacancies in ex-serviceman quota with regard to notification no. 3/2013. Respondents vide letter dated 18.01.2016 along with letter dated 22.01.2016 (Annexure A/7), informed the applicants that the recruitment process is still not completed and 12 OA No. 237/2016 Railways have issued panel of only 46 Ex-serviceman though in recruitment process, 263 candidates in Ex- serviceman category have qualified the written examination, out of which only 81 candidates have qualified the PET. Thus, it is seen that under ex- serviceman category, there are posts still lying vacant.
12. We have noticed that information provided by applicants at Column No. 17, (wrongly mentioned as Column No.12), did not tally with their Discharge Book/Certificate as applicants had wrongly, may be by mistake, filled details about PPO. It is the case of respondents that had the applicants applied off-line then their candidature would have been cancelled as the respondents have cancelled several applications on similar reasons, who had applied off-line. Thus, according to respondents, action for rejecting candidature of the applicants has been taken as per the instructions of the Notification.
13. After going through the case of the applicants, we see that the stand taken by the respondents is that as per provisions contained in para 17.7 of the employment notification, it was clear that "the RRC, Jaipur is free to reject any application not fulfilling the requisite eligibility conditions and criteria, at any stage 13 OA No. 237/2016 of recruitment. If appointed erroneously, such candidates' services shall be summarily terminated without assigning any reason." We have noted that the applicants at Column No. 17 have wrongly given details about PPO instead of giving information about Discharge Book No. / Certificate No. and details pertaining to their service. Despite instructions, the applicants failed to submit duly filled up application form. So the candidature of the applicants for Group 'D' posts has been rejected as per para 17.7 of the employment notification and the same was communicated to the applicant vide letter dated 10.11.2015 (Annexure A/1). Thus, as the candidature of the applicants was rejected as per specific condition mentioned in the Notification dated 14.12.2013, as such, there is no illegality in rejecting the application form of the applicants.
14. It is seen that the applicants had merely forgotten to fill column no. 17 of the application form giving details about Discharge Book No. / Certificate No. but instead have given details about PPO. It is in fact a mistake / human error in filling up the application form for which the applicants could have been personally called and asked to fill the same and they 14 OA No. 237/2016 could have been called for further selection process, if any, and they need not be penalized for such a mistake. Also in the present case no third party rights are affected as the applicants are having interim protection in their favour vide order dated 22.04.2016 wherein one post each of Group 'D', for the four applicants, under the notification dated 14.12.2013 are kept vacant for them with a rider that in case the selection process is not completed as on date and vacancies are still available in Ex-serviceman quota.
15. It is trite law that even in administrative matters, if decision adversely affects a person's legal right or interest, the decision must be taken fairly and reasonably. Even in absence of any provisions for giving an opportunity, the principles of natural justice is inbuilt. Though it is true that the advertisement/ employment notification clearly stated that the candidates to be cautious in filling online applications and any mistake/error would debar such applications, but due to the bonafide mistake on the part of the applicants to fill up column no. 17 of application form pertaining to Discharge Book No. / Certificate No., the respondents should have allowed the said correction, but the same was not done. It is clear that while filling 15 OA No. 237/2016 the application form, human error cannot be completely ruled out and the applicants, therefore, should not be penalized so harshly for such an error. A candidate whose marks are above cut off marks or is in merit deserves an opportunity before his candidature is rejected only on some error. As such, in the present case, the bonafide mistake committed by the applicants is only about not filling up Discharge Book No. / Certificate No. in column no. 17 of the application form, thus, the application form deserves to be rectified /corrected and they should be allowed to rectify the error by allowing them to fill column No. 17 of the application form and they should be allowed to complete their further formalities of selection.
16. We are in agreement with the judgment of the Hon'ble High Court of Rajasthan, Jaipur Bench passed in the case of Kavita Choudhary vs. The Registrar (Examination), Rajasthan High Court, Jodhpur & Anr., [DB Civil Special Appeal (Writ) No. 1700/2017] decided on 1st November, 2017, relied upon by the applicants, wherein the Hon'ble High Court has held that a bonafide mistake which does not affect a third party right should be allowed to be cured. On the other hand, we do not agree with the judgments relied 16 OA No. 237/2016 upon by the respondents as the facts of the said cases are not applicable to the facts and circumstances of the present case.
17. We have also considered the fact that as per information dated 18.01.2016 provided to the applicants under RTI Act, as well as information provided through other letters dated 04.08.2016, 15.12.2017, 08.12.2017 and 13.12.2017, as discussed above, it is clear that the selection process is not completed and there are several posts lying vacant under the Ex-serviceman quota pertaining to the employment notification 03/2013 dated 14.12.2013. On the other hand, we do not agree with the Note attached as MA/1 by the respondents that the remaining unfilled vacancies have been filled up by preparing the panel on 06.10.2015 as per Railway Board's letter No. E (NG)-II /2009/ RR-1 /10 dated 23.07.2015.
18. In view of the observations made herein-above, the action of the respondents calls for interference and the impugned order/letter dated 10.11.2015 (Annexure A/1) requires to be quashed and set aside by this Tribunal.
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19. Accordingly, impugned order/letter dated 10.11.2015 (Annexure A/1) is hereby quashed and set aside. The respondents are directed to permit the applicants to carry out the necessary corrections in the application form and also pass appropriate orders in that respect and allow the applicants to participate in further selection process i.e. medical examination by considering their candidature in Ex-serviceman category and also in view of the interim protection granted to the applicants vide order dated 22.04.2016 and if otherwise found suitable in all respect for the posts of Group 'D', they may be given appointment on the said posts. The said exercise be carried out within a period of three months from the date of receipt of a certified copy of this order.
20. The Original Application is, therefore, allowed to the extent indicated herein-above. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/