Patna High Court - Orders
Rajnikant Ojha vs The Union Of India & Ors on 2 September, 2014
Author: Chakradhari Sharan Singh
Bench: Sharan Singh, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23062 of 2013
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1. Rajnikant Ojha S/O Shri Siyaram Ojha R/O Village Pipra Jagdish, P.O.
Lahanga Dumariya, P.S. Bihiya, Distt. Bhojpur (Bihar)
2. Tej Narayan Ojha S/O Shri Jay Narayan Ojha R/O Village Pipra Jagdish,
P.O. Lehnga Dumariya, P.S. Bihiya, Distt. Bhojpur (Bihar)
.... .... Petitioner/s
Versus
1. Union Of India, Through Secretary, Ministry Of Railways
2. Chief Security Commissioner /RPF/ECR/Hajipur
3. Dy. Chief Security Commissioner/ RPF/ECR/Hajipur
4. Chief Security Commissioner/ RPF/NR
5. Chairman, Ancillary Recruitment Committee (RPF), Patna Centre
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Harsh Singh
For the Respondent/s : Mr. Siddharth Prasad
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
CAV ORDER
10 02-09-20141. Annexure-1 to the writ application dated 7.3.2008 is an advertisement being Employment Notice No. 1 of 2008, inviting applications from eligible male candidates for filling up various posts of ancillary staffs in Railway Protection Force and Railway Protection Special Force. From the contents of the said advertisement, it would appear that vacancies were notified against various posts of ancillary staffs mentioned in the said advertisement for different recruitment Centre including the recruitment Centre at Patna. From the said advertisement, it would appear that 86 unreserved posts of Water Carrier were advertised for different Railways for which the recruitment was to 2 be held at the recruitment Centre, Patna. The petitioners, two in number, were applicants for the said unreserved posts of Water Carrier and had participated in the selection process held at Recruitment Centre, Patna.
2. This is not in dispute that the petitioners fulfilled the eligibility criteria as per the advertisement. The selection test was conducted in the month of November, 2008.
3. It is the case of the petitioners that they participated in 100 M race and qualified. They also cleared the height and chest measurement criteria. It is their specific case in paragraph 7 of the writ application that they appeared in the physical fitness test and trade test that took place over the next two days and qualified all tests, which has not been denied by the respondents in their counter affidavit. The denial to the statement made in paragraph 7 of the writ application in the counter affidavit is only to the extent that according to the respondents the petitioners were not assured about the appointment letter, as final merit list duly approved by the competent authority was not published.
4. The petitioners are said to have waited for several months but they could not get any communication from the respondents despite their visits to the offices of the respondents. The petitioner no.1 thereafter, sought for an information under the 3 Right to Information Act from Public Information Officer cum- Deputy Chief Security Commissioner ( Respondent NO.3) regarding the status of appointment of ancillary staff notified vide said Employment Notice no. 1 of 2008. The respondent No.3, Deputy Chief Security Commissioner/RPF/ECR/Hajipur in reply to the said query made in the application under Right to Information Act informed by a communication dated 7.1.2010 that the recruitment notified vide Employment Notice No. 1 of 2008 to the extent it related to Patna Centre had been cancelled by the Chief Security Commissioner/RPF/NR. Along with the said communication, a notice published in the Employment News dated 26.9.2009- 2.10.2009 was also enclosed. The said information dated 7..1.2010 has been brought on record as Annexure-4 to the present writ application. The contents of the notice published in the said Employment News annexed along with the said letter dated 7.1.2010 is crucial for adjudication of the present case and it is therefore being quoted hereinbelow:-
"The Employment Notice no. 01/2008 dated 7.3.2008 published in Employment News dated 22-28 March, 2008 for the post of Ancillary Staff in RPF/RPSF for recruitment Centre „Patna‟ stands cancelled. Fresh notification for recruitment of Ancillary Staff will be issued shortly. However, all the candidates found fit in physical 4 measurement during the recruitment held at Patna Centre will be allowed to appear in the fresh recruitment. They need not apply afresh".
5. From the said notice as quoted hereinabove, it would appear that selection process for appointment to various ancillary staff was cancelled only to the extent it related to the process conducted for Patna Centre. The said notice indicated that fresh notification for recruitment of ancillary staff will be issued "Shortly". It also indicated that all candidates found fit for physical measurement during the recruitment held at Patna Centre will be allowed to appear in the fresh recruitment and they will not be required to apply afresh. I consider it apt to mention here itself that till date fresh notification in compliance of the notice of cancellation of selection process for recruitment Centre, Patna has not been issued.
6. Petitioner no.1 thereafter, vide an application dated 8.2.2010 under the Right to Information Act sought information as regards reason for cancellation of the recruitment as also if any enquiry was conducted prior to such cancellation, enquiry report be furnished to him. He did not receive any reply, however. The petitioner no.1 is said to have thereafter, preferred appeal before the appellate authority under 5 the Right to Information Act on 25.3.2010. The petitioner No.1 was asked thereafter, vide letter dated 7.4.2010 to peruse the enquiry report in the office of the respondents. It is the petitioners‟ plea, as would appear from Annexure-7 also, that what the petitioner No.1 was shown was "Scrutiny Report" as not an enquiry report.
7. It is further plea of the petitioners that they again approached under Right to Information Act, seeking copy of the enquiry report which was made available for his perusal on 6.5.2010. The petitioner no.1 is said to have sought information whether a merit list had been prepared pursuant to the examination of candidates under Employment Notice no. 1 of 2008. He also sought information seeking reason for non preparation of the merit list, in case it was not prepared. If prepared, he also sought for a merit list. In paragraph 17 of the writ application it is stated that though a copy of the scrutiny report containing 12 pages in all was provided to the petitioner No.1, but merit list was not supplied to him. It is specifically stated in the said paragraph that on enquiry about the petitioners, they were shown merit list which contained their names. This statement has been replied in paragraph 12 of the counter affidavit stating that there was no question of the 6 names of the petitioners to be there in the merit list as no final merit list duly approved by the competent authority was ever published.
8. Before I move towards the facts of the case further, I must to refer to the order dated 25.3.2014, passed in this case whereby the respondents were required to produce the original records pertaining to the recruitment process held pursuant to the said advertisement dated 7.3.2008, to the extent the same related to the post of Water Carrier ( Unreserved) for Patna Centre.
9. Mr. Siddharth Prasad, learned counsel appearing on behalf of the respondents had produced before this Court the original records. It has transpired on the basis of the said record that petitioner no.1 was placed at serial No. 42 and petitioner no.2 at serial no.30 in the tentative merit list prepared for 86 unreserved posts of water Carrier. It has thus, transpired from the said record that had merit list been published on the basis of said selection process, merit position of petitioner no.1 would have been 42 and that of petitioner no.2, of 30 as against 86 unreserved posts of Water Carrier advertised through Employment Notice no. 1 dated 0703.2008. The specific pleading in the writ application that petitioner 7 no.1 was shown a merit list which contained name of the petitioners has not been denied specifically in the counter affidavit thus, stands established on perusal of the original records. There is, therefore, no dispute about the fact that had the merit list prepared on the basis of said selection process been published as that was, the petitioners would have been declared selected and recommended for appointment against unreserved post of Water Carrier. As has been noted above, this is evident from the original record also which was produced before me by the learned counsel appearing on behalf of the respondents for perusal. There is no and there cannot be any dispute as regards this aspect of the matter.
10. Now, moving on the facts further; the scrutiny report supplied to the petitioner has been brought on record as Annexure-10 to the writ application. Referring to the said scrutiny report it has been pleaded that some irregularities were found in specific cases relating to the posts of Water Carrier in general category and discrepancies pointed out in course of scrutiny were subsequently clarified/corrected. Reference has been made to Note 5 dated 16.4.2009 with the subject "observation in connection with the proceedings of Ancillary Recruitment in RPF/RPSF-2008 for Patna Centre". 8 The said Note-5 contains the comments upon parawise reply on scrutiny submitted by the Chairman, Ancillary Recruitment Committee dated 14.4.2009. It has been recorded at the bottom of said Note 5 as follows:-
"On perusal of the third scrutiny it has been observed at the irregularities pointed out during various stages of scrutiny seems to have been clarified satisfactorily."
11. In the background of these facts, it is the plea of the petitioners that the irregularities were not such as to necessitate cancellation of entire process of selection held at recruitment Centre, Patna. Even if, there were some deficiencies, such deficiencies could not be said to be incurable. It has further been pleaded, referring to Scrutiny report and observation that there is no question mark on the bonafide of the selection of these petitioners.
12. After having received the said information under the Right to Information Act, the petitioners moved before this Court for relief prayed in the present writ application vide CWJC No. 15450 of 2010. Under some apperent legal misconception that the petitioners had remedies before the Central Administrative Tribunal constituted under 9 Administrative Tribunal Act, they elected to withdraw the said writ application. The writ application was accordingly, permitted to be withdrawn by an order dated 16.9.2010 with a liberty to the petitioners to approach the Central Administrative Tribunal, Patna. The petitioners accordingly, approached the Central Administrative Tribunal, Patna Bench, Patna by filing O.A. No. 741 of 2010. The Central Administrative Tribunal, however, came to the conclusion that since the posts in question being combatised, the Central Administrative Tribunal had no jurisdiction. The O. A. No. 741 of 2010 was accordingly, dismissed by an order dated 17.4.2013 with a liberty to the petitioners to approach appropriate forum in accordance with law.
13. With the liberty granted by the Central Administrative Tribunal and in the background of these facts as notice above, the present writ application has been filed, seeking quashing of the notice/communiqué No. 5539/2009 (Annexuree-1) as published in Employment News (26.9.2009- 2.10.2009) issued by the respondent no.4, whereby employment Notice no. 1 of 2008 dated 7.3.2008 for the posts of Ancillary staff in RPF/RPSF for recruitment Centre, Patna has been cancelled. The petitioners, accordingly, seek a 10 direction from this Court upon the respondent authorities to consider the cases of these petitioners and appoint them to the posts of Water Carrier as per their position in the tentative merit list, which according to them was wrongly withheld and allowed to be published.
14. A counter affidavit has been filed on behalf of the respondents. There is no substantial denial of the facts pleaded in the writ application which have been taken note of in the present order as above. The gist of the statements made in the counter affidavit is that Employment Notice no. 1 of 2008 dated 7.3.2008 was cancelled by Chief Security Commissioner, R.P.F., Northern Railway, Baroda House, New Delhi due to irregularities detected by the Scrutiny committee in the proceedings of Selection Committee. No merit list was approved by the competent authority and therefore, there was, therefore, no question of publication of merit list. Several irregularities were detected by the Scrutiny Committee in the selection proceeding of the Selection Committee which were not clarified by the Chairman of the Selection Committee. Such irregularities/illegalities committed by the Selection Committee during recruitment were all pervasive and hit the very fundamental of the recruitment and no segregation as 11 suggested by the petitioners was possible.
15. Curiously enough, the counter affidavit has not dealt Note No.5 dated 16.4.2009 ( 3rd Scrutiny at page 38 of writ petition), wherein the scrutiny Committee is said to have recorded that irregularities pointed out during various stages of scrutiny seem to have been clarified satisfactorily.
16. This is one aspect of the matter where the contention of the petitioners is that the decision and cancellation of the recruitment process to the extent it related to recruitment Centre, Patna was arbitrary and unreasonable. Reliance in support of his submission has been placed upon Supreme Court judgments reported in (2003) 7 SCC 285 (Union of India Vs. Rajesh P.U., Puthivalnikathu) and (2010) 7 SCC 678 ( East Coast Rly. Vs. Mahander Appa) by Mr. Harsh Singh, learned counsel appearing on behalf of the petitioners. He has also placed reliance upon a judgment of Division Bench of this Court reported in 2014(1) PLJR 731 ( Union of India Vs. S.P. Tripathi) in this regard.
17. Mr. Siddharath Prasad, learned counsel appearing on behalf of the respondents, on the other hand, has drawn my attention to an order dated 22.7.2011 passed by this Court in CWJC No. 7095 of 2011 ( Manoj Kumar Chaudhary 12 vs. Union of India and ors) to contend that this Court dismissed the said writ application in which the petitioner of that case had sought for a direction to publish the result of the same selection list; in view of the fact that the respondents had already decided not to go ahead with the said selection process for the reasons set out in the said counter affidavit. Operative portion of the said order of this Court dated 22.7.2011, which is relevant, is being quoted hereinbelow:-
"Learned counsel for the petitioner fairly states that it is not the case of the petitioner that any such candidate who appeared in the said selection test has been appointed. This Court, invoking its writ jurisdiction based on pleadings on record, cannot command the respondents to publish the result since they have already decided not to go ahead with the said selection process for the reasons set out in the counter affidavit. This Court, therefore, declines the relief (s) prayed for in the application.
The application is dismissed."
18. He has accordingly, contended that the said order of this Court dated 22.7.2011 passed in CWJC No. 7095 of 2011 is binding upon this Court in the present proceeding and the present writ application deserves to be dismissed accordingly. In reply, Mr. Harsh Singh, learned counsel appearing on behalf of the petitioners has submitted that the said order of this Court dated 22.7.2011 cannot have any binding effect on the present proceeding applying the well 13 recognized and accepted doctrine of sub silentio relying upon judgments of the Supreme Court reported in (1991) 4 SCC 139 ( State of U.P. Vs. Synthetics and Chemiclas Ltd.) as well as ( 2003) 7 SCC 197 ( Divisional Controller, KSRTC Vs. Mahadeva Shetty). He has submitted that this Court in CWJC No. 7095 of 2011 did not have the occasion to deal with the validity of the decision of cancellation of the employment notice No.1 itself to the extent it related to recruitment Centre, Patna; the reasonableness and bonafide of the decision in the light of Supreme Court judgments in case of ( 2003) 7 SCC 285 ( Union of India Vs. Rajesh P.U., Puthuvalnikathu) and (2010) 7 SCC 678 ( East Coast Rly. Vs. Mahander Appa). He has accordingly, submitted that in the facts and circumstances of the case, said order of this Court cannot be treated as ex cathedra statement having the weight of authoritative pronouncement.
19. Mr. Siddharath Prasad, learned counsel appearing on behalf of the respondents, while making his submission on the basis of the contents of the counter affidavit has also placed reliance upon a supreme Court judgment reported in (2005) 3 SCC 618 ( Food Corporation of India Vs. Bhanu) to contend that in any circumstance, even a successful 14 candidate does not acquire any indefeasible right to be appointed which cannot be legitimately denied. He has submitted that it is a matter purely of a policy decision to fill up or not to fill up the posts and there should ordinarily be no interference with such policy decision while exercising power of judicial review under Article 226 of the Constitution of India.
20. There is another fact, which is a development during the pendency of the present writ application, which important and cannot be loss sight of.
21. A supplementary affidavit has been filed on behalf of the petitioners, stating that the respondents have come out with Employment Notice No. 1 of 2013 published in employment News dated 21-27 December, 2013 as well as in the daily Newspaper "Hindustan" dated 11.1.2014. Said employment notice is also available on the Website of the Indian Railway which has been brought on record as Annexure-14 to the supplementary affidavit. Through the said Employment notice, applications have been invited for filling up the posts of Ancillary staff in different trades in Railway Protection Force including Railway Protection Special Force and such posts include the posts of constable ( water carrier). 15 Referring to the Employment Notice no. 1 of 2013, it is contention of the petitioners that even this notice issued after five years does not have any reference to the notice cancelling selection process issued in 2009 which had required that all candidates found fit in physical measurement during the recruitment held at Patna Centre would be allowed to appear in the first recruitment and that they did not need to apply afresh.
22. To say it precisely, the contention on behalf of the petitioners is that the cancellation of Employment Notice No.1 of 2008 to the extent it related to selection at recruitment Centre, Patna does not have any valid foundation. Further, there is complete non-compliance of terms of cancellation notice in as much as the Respondents did not issue notification as contemplated therein and thus petitioners have been deprived of their fundamental rights to be considered for appointment.
23. On the basis of rival pleadings and respective submissions made on behalf of the parties, the points which have emerged for consideration is as to whether cancellation of entire selection process for appointment to the post of Water Carrier to the extent it related to the recruitment held at Patna Centre, Patna by the respondents was wholly arbitrary and it 16 fails to satisfy the touch- stone of reasonableness in the action of the respondents. Whether there has been due application of mind by the Respondents before cancelling the entire selection process and such application of mind is reflected from the material available on record in the present case which include the pleadings of the respondents?
24. In view of the submissions made on behalf of the respondents a question has also arisen as to whether this Court is not required any further to go into the validity of the action of the respondents of cancelling the entire process of selection in view of an earlier order dated 22.7.2011 passed in CWJC No. 7095 of 2011 ( Manoj Kumar Choudhary Vs. Union of India & ors) (supra), where this Court considering the same cancellation of selection process held " based on pleadings on record, this Court invoking writ jurisdiction could not command the respondents to publish the result since they had already decided not to go ahead with the said selection process for the reasons set out in the counter affidavit". Whereas learned counsel for the respondents has harped upon the said order dated 22.7.2011 in case of Manoj Kr. Choudhary ( supra) to contend that the dispute over cancellation of the process of selection cannot be reopened again as the matter 17 came to be finally settled by this Court, learned counsel for the petitioners has contended that the pleadings and other materials which are there on record in the present proceedings were not available before this Court at the time of disposal of the writ application i.e. CWJC No. 7095 of 2001 ( Manoj Kumar Choudhary( (supra) and therefore, the earlier order of this Court would not bind this Court in present proceeding, applying doctrine of sub-silentio. In this background, this Court is called upon to consider that even if this Court comes to the conclusion that decision of the respondents to cancel the entire process of selection was arbitrary and unreasonable and a result of non application of mind by the competent authority, whether any relief asking the respondents to act on the basis of earlier held selection process can be given, in view of the order of this Court in case of Manoj Kr. Choudhary ( supra) wherein this Court had refused to command the respondents to publish the results.
25. I will deal with these aspects, as noted above, in the light of the submissions made on behalf of the parties but in my opinion the most important aspect which requires consideration in the present case is as to whether the respondents were under obligation to act at least as per their 18 own decision in the light of the cancellation of selection process in question according to which a fresh notification for recruitment to the extent it related to Patna Centre was required to be issued shortly after issuance of notice in the Employment News dated 26.9.2009-2.10.2009 and it further required that candidates found fit in physical measurement during recruitment held at Patna Centre would be allowed to appear in fresh recruitment and that they were not needed to apply afresh. This is an admitted position that no fresh notice was issued in terms of the said notice published in the employment News dated 26.9.2009 to 2.10.2009. In this background the question which has arisen is as to what would be the effect of failure on the part of the respondents to issue fresh notification and denying the applicants of employment notice No. 1 of 2008 to the extent it related to Patna Centre, their right to be considered for the posts against which they had applied. In case this Court comes to the conclusion that such denial of opportunity to the petitioner to be considered for appointment against which they had applied amounts to violation of their fundamental rights adumbrated under Articles 14 and 16 of the Constitution of India, then what relief this Court can allow them in the present proceedings under Article 226 of the 19 Constitution of India, would be next question.
26. As has been discussed above, the reason behind cancellation of the selection process in question has been described to be irregularities committed in course of selection process. The decision is based on the scrutiny conducted at various stages. In course of scrutiny of merit list certain irregularities were found. Comments by the Chairman of the Selection Board upon the scrutiny submitted were also submitted. Note file dated 16.4.2009 deals with third scrutiny. It has been observed after considering the scrutiny reports and comments by the Chairman of the Selection Board that irregularities pointed out during various stages of scrutiny seemed to have been clarified satisfactorily. Nothing has been brought on record to demonstrate that the observations in note file dated 16.4.2009 were considered by the competent authority before taking into account the said notes file dated 16.4.2009 which is part of Annexure 10 to the writ application. I consider it appropriate to quote the said note file here itself for quick reference:-
"Sub:- Observation in connection with the proceedings of Ancillary Recruitment in RPF/RPSF-2008, for Patna Centre.
Ref:- NO/ RNC/Recruit/Ancillary/Spl/09/01/Dted. 14.4.2009
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On the above subject under reference as directed we the undersigned have gone through the para-wise reply on scrutiny, submitted by the Chairman Ancillary Recruitment Committee dated 14.4.2009. The comments on para wise reply is being furnished is here under against each of the following para:-
1.A-I:- As reported the key of the 08 boxes in sealed cover has been received by SO to CSC on 15.04.2009 through steno to CSC. The locked boxes ( 08 box) are kept in C & TE/Coy/DNR as stated by the Chairman which have not yet been received by SO to CSC at Hajipur till date.
The mistakes are found corrected and has been verified.
2.B-5:- clarified.
3.- No comments.
8.H-16:- No comments.
12(5):- clarified 12(7):- clarified.
13. Corrected in the merit list by putting initials of the Committee members in the remark column manually.
On perusal of the merit list
following irregularities are observed:-
(i) It has been observed that under
category of OBC/Safaiwala total vacancy is shown as 09 ( nine) where as under selected merit list it is reflected as 05+01 ( not filled up in absence of qualified candidates) which adds to 06 candidates instead of 09( nine).
It has been observed that under category of UR/BARBER total vacancy is reflected as 11 (eleven) where as under selected merit list it is reflected as 12 ( twelve) which is more than the notified vacancy.
The above needs to be clarified by the Chairman whether it is a printing error or otherwise.
On perusal of the third scrutiny it has been observed that the irregularities pointed out during various stages of scrutiny seems to have been clarified satisfactorily."
21
27. It would need to be reiterated and it has already been recorded above on the basis of the pleadings in the writ application as well as on the basis of original records produced by learned counsel appearing on behalf of the respondents that had there been a merit list/result published on the basis of the selection process in question the petitioners would have been declared successful by virtue of their position at serial no. 42 and 30 respectively. They have, therefore, a genuine grievance that if the said selection process was required to be cancelled, decision in that regard should have been taken on the basis of due appreciation of materials on record and there should have been due application of mind by the competent authority which must be apparent from the decision itself. Though I consider that a candidate does not acquire an indefeasible right to a post merely on the ground that he cleared all the tests held for recruitment to that post and found placed in the select list, yet any decision of the State refusing to appoint on the basis of such selection has to be reasonable and for valid, genuine and bonafide purpose. The law in this regard has been laid down recently in case of East Coast Railway Vs. Mahadeo Appa Rao ( supra) by Supreme Court. The Court held in paragraph 14 as follows:-
22
"14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State‟s decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter."
28. The Court in the said case held that Article 14 of the Constitution strikes at arbitrariness which is an antithesis of the fundamental right guaranteed contained in Articles 14 and 16 of the Constitution. What action of a public authority would amount to arbitrary exercise of power has been explained by the Supreme Court in the said case referring to the case of Shrilekha Vidyarthi Vs. State of .P reported in (1991) 1 SCC 212 and dealing with the issue the Supreme Court held in paragraph 23 as follows:-
"23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And 23 disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable."
29. In the present case, as has been noted above, the para-wise reply submitted by the Chairman, Ancillary Recruitment committee dated 14.4.2009 was considered by a Committee as would be evident from note file dated 16.5.2009 and the Committee observed that the irregularities pointed out during various stages of scrutiny seemed to have been clarified satisfactorily. Further, on the basis of scrutiny report, which has been brought on record as Annexure-10 to the writ application it cannot be said irregularities were all pervasive and beyond correction/segregation.
30. Upon perusal of the records annexed to the writ application, I find it difficult to sustain the decision of the respondents to cancel the entire selection process in the facts and circumstances of the case, as such decision is not based upon proper application of mind to the relevant facts.
31. Coming to the order of this Court dated 22.7.2011 passed in case of Manoj Kumar Choudhary ( supra), much emphasis upon which has been placed by the learned 24 counsel appearing on behalf of the respondents clearly indicated " this Court invoking its writ jurisdiction based on pleadings on record cannot command the respondents to publish the result since they have already been decided not to go ahead with the selection process for the reasons set out in the counter affidavit". The order was passed on the basis of pleadings on record, particularly in view of the stand taken in the counter affidavit filed by the respondents in that case in paragraphs 4 and 5 which had been quoted by this Court in the said order dated 22.7.2011 which read thus:-
"4. That it is submitted that the Employment Notice No. 01/2008 dated 7.3.2008 published for recruitment of RPF/RPSF Ancillary Staff was cancelled by the competent authority i.e. Chief Security Commissioner/RPF/Northern Raiway, as several irregularities were detected by Scrutiny Committee in process of selection concluded by the selection Committee, and a news in this regard was published through Employment News Paper.
5. That it is further submitted that the petitioner has been informed through letter no. E/p/RT/ACT/05/184/1 dated 18.4.2011 that the selections of recruitment of Ancillary Staff vide Employment notice No. 1/2008 has been cancelled by Chief Security Commissioner/RPF/Northern Railway."
32. This has to be kept in mind that said Manoj 25 Kumar Choudhary had raised a grievance that result of the selection test was not being published. The question whether the cancellation of selection process itself was arbitrary or not was neither raised nor adjudicated upon by this Court in case of Manoj Kumar Choudhary ( supra). The Court refrained from issuance of any order to publish the result on the basis of selection process which was cancelled by the competent authority. Learned counsel for the petitioner has placed great emphasis upon Supreme Court judgment in case of State of U.P. Vs. Synthetic and Chemical Ltd. (supra) in support of his submission that the order of this Court dated 22.7.2011 passed in case of Manoj Kumar Choudhary (supra) cannot be treated as binding precedent even for the said selection process as it is sub silentio, particular reference has been made in this regard to paragraph 41 which reads thus:-
"41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passes sub- silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind." ( Salmond on Jurisprudence 12th Edn.,p. 153). In Lancaster Motor Company ( London) Ltd V. 26 Bremith Ltd." the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. It was approved by this Court in Municipal Corporation of Delhi V. Gurnam Kaur.14 The bench held that, „precedent sub- silentio and without argument are of no moment‟. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article
141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao V. Union Territory of Pondicherry‟15 it was observed,‟it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein‟. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent, Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
33. Learned counsel appearing on behalf of the respondents has placed reliance upon judgment in case of Food Corporation of India and ors. Vs. Bhanu Lodh and others (supra) has contended that merely on the ground that the vacancies are notified, State is not obliged to fill up all the vacancies unless there is some provision to the contrary in 27 applicable rules. He has submitted referring to the said judgment that whether to fill up or not to fill up the post is a policy decision and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review. There cannot be any dispute over the proposition of law as advanced by learned counsel appearing on behalf of the respondents. However, as I have held, no cogent materials have been brought on record by the respondents to satisfy this court that there was due application of mind by the competent authority i.e. Chief Security Commissioner/RPF/ Northern Railway before taking a decision to cancel the entire selection process particularly in view of note file dated 16.4.2009 wherein the Committee observed that irregularities pointed out during various stages of scrutiny seemed to have been clarified satisfactorily. The decision to cancel the entire process of selection, for the reasons as noted above, was therefore an arbitrary exercise of power, applying the principle laid down by the Supreme Court in paragraph 23 in case of East Coast Railway vs. Mahadeo Appa Rao ( supra).
34. The facts of the present case demonstrate arbitrary action of much higher degree on the part of the respondents subsequent to cancellation of the selection in 28 question which is evident, admitted and writ large. Even if, it is presumed that the competent authority which has been described to be the Chief Security Commissioner, RPF, Northern Railway took a decision bonafide to cancel the selection process as a whole and in his opinion there were large scale irregularities in the process of selection, he was bound by the terms notice published in Employment News dated 26.9.2009 to 2.10.2009 which contained the information as regards cancellation of selection process and the fact that fresh notification for recruitment of Ancillary staff would be issued shortly and all the candidates found fit in physical measurement during recruitment held at Patna Centre would be allowed to appear in the fresh recruitment and that they would not be required to apply afresh. It certainly meant that eligible candidates who had applied against post advertised vide employment notice no. 1 of 2008 and with respect to which selection came to be cancelled were to be considered afresh against the said vacancies and they were not required to apply afresh. There is absolutely no explanation by the respondents as to why they did not proceed immediately thereafter and held a selection process afresh with respect to the vacancies advertised confining it to the candidates who had applied. 29 Respondent as well as the competent authority chose to maintain complete silence over the issuance of notification in terms of cancellation notice published in Employment News dated 26.9.2009 to 2.10.2009. This, in my opinion, took away in most illegal and arbitrary manner, the rights of these petitioners to be considered against the post for which they had applied. The petitioners who participated and were placed high in the merit list, which could not be published, because of an arbitrary decision were kept away from even being considered for the said advertised post. This in my opinion, amounts to gross abuse of power and dereliction of duty in carrying out its own promise by the State through cancellation notice that fresh notification for recruitment would be issued shortly which was not done. I am of the considered view on the basis of discussion as above, that fundamental rights of the petitioners guaranteed to them under Articles 14 and 16 of the Constitution of India have been breached by the respondents. Such infringement of fundamental rights will certainly need to be cured or compensated in exercise of plenary writ jurisdiction of this Court under Article 226 of the Constitution of India.
35. Learned counsel for the respondents has 30 attempted to persuade this Court that the vacancies against which the petitioners had applied in 2008 have been added to subsequent vacancies and all such posts have been advertised recently and therefore no direction can be issued for publication of their result and their appointment against those post. He has also attempted to persuade this Court that there has been delay on the part of the petitioners in approaching this Court and, for that reason also they are not entitled to any relief. As has been recorded above, the petitioners had earlier approached this Court by filing CWJC No. 15450 of 2010. It has been pleaded in the writ application that the petitioners had been approaching the authorities seeking information as regards stage of declaration of the result. They learnt about the decision of the respondents to cancel the selection process through an information received by them under the Right to Information Act. The writ application was, however, permitted to be withdrawn by an order dated 16.9.2010 under the impression that they had remedy before the Central Administrative Tribunal. They approached the Tribunal immediately thereafter. However, Central Administrative Tribunal rejected their case vide order dated 17.4.2013 on the ground that the Tribunal had no jurisdiction, the post in 31 question being combatised. Thereafter the petitioners approached this Court by filing the present writ application.
36. In view of these facts, the writ application cannot be thrown on the ground of delay and latches. The plea that the posts have been advertised recently, goes against the respondents in the sense that the petitioners had a right to be considered on the basis of their applications against the posts for which they had applied and participated in the selection process which was cancelled with a condition that the persons who had cleared the physical test would not be required to apply afresh which the respondents failed to comply with. In my opinion the petitioners have been consistently, constantly and diligently pursuing their matter from the very beginning.
37. This court is mindful of the fact that in a populous country like India, where job opportunities are few and sparse, public employment is much coveted for the youth. Denial of opportunity to compete for such posts and to be considered for appointment without any valid, justifiable reason is bound to generate a sense of discontentment among them. An arbitrary and whimsical decision by respondents to cancel a selection process held at a particular centre succeeded by denial to hold a fresh selection process in violation of their own promise 32 made by them through public notice can be genesis of reasonable suspicion in minds of youth over the bone fide of administrative action/inaction. The men entrusted with the task of recruitment/selection for public employment are not only called upon to ensure that best persons are selected most suited for requirement of the post. Equally important is their duty to be sensitive to the legitimate expectation of the aspirants vying for such posts on the basis of their merit through open competition/selection process, that they are treated fairly. Such fairness in action should not only be practised but it should be manifest from their conduct.
38. The question which now arises is as to what relief this Court can grant to the petitioners in exercise of power under Article 226 of the Constitution of India, once I have come to a definite conclusion that the petitioners have suffered injustice at the hands of the respondents. It has been held by our Courts including the Supreme Court that jurisdiction of this Court under Article 226 of the Constitution has wide amplitude to access injustice in any form or manner.
39. In case of I.T.C. Ltd. Vs. State of Karnataka reported in 1985 (Supp.) SCC 476 the Supreme Court observed as follows:-
33
"195. Courts of today cannot and do not any longer remain passive with the negative attitude, merely striking down a law or preventing something being done. "Thou shall not do‟t" used to be previous form of remedy encouraged by courts. But the new attitude is towards positive affirmative actions, directing people or authorities concerned that "thou shall do‟t" in this matter......."
40. In case of Ramesh Chandra Sankla Vs. Vikram Cement reported in (2008) 14 SCC 58 the Supreme Court approving a celebrated judgment of Allahabad High Court in case of Jodhey Vs. State noticed the law as follows:-
"90. Now, it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey Vs. State observed:-
"10......... There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein."
41. Further in case of Krishan Yadav vs. State of Haryana reported in ( 1994) 4 SCC 165 the Supreme Court laid the law. In case of Hira Tikkoo Vs. Union Territory, Chandigarh reported in (2004) 6 SCC 765 the Supreme Court 34 made the following observations on the question of awarding compensation against an arbitrary public action:-
"25. Surely, the doctrine of estoppel cannot be applied against public authorities when their mistaken advice or representation is found to be in breach of a statute and therefore, against general public interest. The question, however, is whether the parties or individuals, who had suffered because of the mistake and negligence on the part of the statutory public authorities, would have any remedy of redressal for the loss they have suffered. The "rules of fairness" by which every public authority is bound, require them to compensate loss occasioned to private parties or citizens who were misled in acting on such mistaken or negligent advice of the public authority......"
The jurisdiction of this Court is wide enough under Article 226 of the Constitution of India, in view of above judicial pronouncements.
42. After six years of commencement of selection process, I , however, desist myself from issuing any direction to the respondents compelling them to appoint these petitioners against those posts on the basis of selection process which came to be cancelled, though I have held that cancellation of selection process was an arbitrary exercise of power. This I am doing keeping in mind the nature of service where age of the incumbent at the entry level for the purpose of their 35 training etc, matters a lot. Further, the direction of this Court in case of Manoj Kumar Choudhary (supra) is also staring at me. However, since I have held that fundamental rights of these petitioners under Articles 14 and 16 have been breached, because of non compliance of terms of the cancellation notice, I am of the considered opinion that they will be required to be compensated by the respondents. I would, therefore, direct the respondents particularly respondent no.12 the Chief Security Commissioner, Railway Protection Force, Northern Railway, (Respondent no.4) to pay to these petitioners a sum of Rs. 5 lakh each in order to compensate the infringement of their fundamental rights by respondents within a period of three months from the date of receipt/production of a copy of this order. If the said amount is not paid within the period specified, it would incur interest at the rate of 12% per annum after the said period of three months. If the amount is not paid even within one year, it will carry interest 18% per annum from the expiry of the said period of one year till the date of actual payment.
43. The Court deprecates the matter in which concerned Chief Security Commissioner, N.R who was the competent authority took a decision to cancel the entire 36 selection process and thereafter failed to ensure issuance of a notification contemplated in the cancellation notice itself. I would therefore, direct the Railway Board of Ministry of Railway to hold an enquiry into the circumstance in which the terms of cancellation notice were not complied with, obviating consideration of these petitioners and other similarly situated persons of their appointment to the posts advertised. Such enquiry must be instituted by the Railway Board and concluded within a period of three months from the date of the communication of this order. The chairman of the Railway Board will be responsible for carrying out this order. The Chairman of the Railway Board will also consider initiation of disciplinary proceeding against the persons found responsible for their inaction in this regard.
44. This application is allowed with the observations as above.
5 Let a copy of this order be communicated by the Registry through Fax to the Chairman, Railway Board, Ministry of Railways, Government of India, New Delhi.
(Chakradhari Sharan Singh, J) ArunKumar/-