Central Administrative Tribunal - Bangalore
Swapnil vs South Western Railway on 16 October, 2023
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OA.No.51/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00051/2021
ORDER RESERVED ON:08.09.2023
DATE OF ORDER: 16.10.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Swapnil
S/o Sheshrao Bhagat,
Aged 31 Yrs. Occ.-NIL;
R/o Plot No.78, Angulimal Nagar,
Nari Road, Post-Uppalwadi,
Nagpur-440026. ....Applicant
(Applicant in person)
Vs.
1.Union of India
Through its General Manager,
General Manager Office, Rail Soudha,
South Western Railway, Gadag Road,
Hubli, Karnataka - 580020.
2. The Chairperson/Director General
Railway Recruitment Control Board, (RRCB).
Rail Bhavan, 1, Raisina Road,
New Delhi-110 001
3. General Manager,
South Western Railway,
Zonal Head Quarters Office,
Hubali-580 020;
District-Dharwad (Karnataka)
4. Chairman,
Railway Recruitment Board,
D-7, Cantonment Railway Quarters,
Shivaji Nagar, Bengaluru,
Karnataka-560 046
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OA.No.51/2021/CAT/Bangalore Bench
Also other Address
18, Millers Road,
Bengaluru - 560046. ....Respondents
(By Shri Vishnu Bhat, Sr. Panel Counsel for Respondents)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) Direct the Respondents to forthwith issue the appointment order to the Applicant on any of the vacant post of C & W anywhere under the jurisdiction of RRB Bangalore or further direct all and every of the 21 RRBs to appoint the Applicant anywhere throughout the India.
b) Call for the records in possession of the Respondents including the final select list, vacancy position, and cut off marks of selected candidates in each category Viz. SC, ST, OBC, UR etc. in respect of CEN-04/2012 for perusal of this Tribunal and further be pleased to call for the records regarding the vacancies filled and employees recruited thereafter from 2012 till 2020.
c) Direct the Respondents to apply the seniority after the last appointed candidate from Cen-04/2012 for the purpose of seniority and fixation of pay and to provide benefits notionally as if he was then appointed from such deemed appointment with all arrears etc., as per law. 3
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d) Any other relief which this Tribunal deems fit and proper in the facts and circumstances of this case.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The Railway Recruitment Control Board had issued an advertisement CEN-04/2012 on 16.6.2012 indenting requirement for several posts at several places under all 21 RRB's.
b) The Applicant had applied in the category No. 17 "Technician Grade-
III/C&W" for Bangalore RRB in the "Scheduled Caste" reservation posts category. The written examination was conducted on l6.12.2012 and the applicant based on the written examination was provisionally shortlisted for the post of Tech/III/C&W in the scale of Rs.5200- 20200 GP 1900. The Results of CEN-04/2012 were declared in which 104 candidates were placed in the main list. Along with the same a standby list of 31 candidates was also published and maintained accordingly.
c) Under the SC category, total vacancies indicated were 16 posts. 4 posts were reserved for persons with disability and 10 posts were reserved for Ex-servicemen. The applicant submits that the total post advertised, therefore, were 118 posts including 4 posts reserved for persons with disability and 10 posts reserved for Ex-servicemen.
d) The Applicant was placed in the standby list of CEN-04/2012. The said results along with standby list of CEN-04/2012 was published on 21.02.2013 (ANNEXURE-A4). The Applicant being in the standby list 4 OA.No.51/2021/CAT/Bangalore Bench was directed to appear for verification of documents on 11.03.2013 at 10-00 Hrs along with original documents vide letter dated 20.02.2013.
e) Out of the 104 candidates, 3 candidates, viz. (i) Manish Tirpude (SC)
(ii) Mr. Addam (SC) and (iii) Mr. Malked Bhimrao Madhao joined their post of Technician C&W at Hospet Railway unit, Jindal Steel Plant area, Vidya Nagar, Hospet, (Hubli-Division) in the State of Karnataka. All these 3 employees left the service within 6-12 months of their joining the post at Hospet. Thus 3 vacancies were created and the Respondents were duty bound to appoint 3 candidates from the standby list.
f) One Shri. Purushottam Kumar Singh No.33915 was at serial No.1 in the standby list. The said Purushottam was appointed in the post of Technician C&W Grade-III on 24.07.2017 at Vasco-da-gama, Mormugao in the State of Goa. Purushottam Kumar Singh joined in unreserved open category. After his appointment, 2 posts remained vacant. However, since the said person had applied under un-reserved category, 3 posts still remained vacant in SC Category.
g) The Applicant ought to have been automatically appointed and posted at Hospet in 2017 just behind the said Purushottam Kumar Singh or thereafter even today.
h) The applicant submits that every RRB can divert their candidates in standby list to any other RRB or any RRB can seek candidates from the standby list of other RRB if they require candidates in particular 5 OA.No.51/2021/CAT/Bangalore Bench category. Such process was carried by RRB Allahabad wherein it had diverted its candidates from the standby list of Allahabad to three other Zones, viz. (i) Central Railway (CR), (ii) Eastern Railway (ER), (iii) South Western Railway (SWR).
i) The applicant filed an application under RTI which was responded vide RRB Bangalore letter dated 20.2.2019, letter dated 25.3.2019, letter dated 30.9.2019 and other similar letters issued by RRB Bangalore stating that the details are not available with the said office.
j) The applicant was kept in the standby /waiting list for years together, despite availability of as many as 17 posts (being unfilled) even as on date.
k) The very purpose of selecting 30% more candidates is to avoid indenting incumbents for various posts every time throughout the country and the selected candidates can and should be called when there is a vacancy of the said post. However, the respondents in spite of using the standby list even till today, which list is though utilised by the respondents for other posts and though as many as 17 posts are vacancy at RRB Bangalore, the same has not been given to the applicant since 2013.
l) The applicant has submitted a copy of a letter issued by South Western Railway dated 13.8.2021 in response to the information sought under RTI pertaining to candidates appointed under SC category under the said selection. As per this letter, enclosed as Annexure A-20, the 6 OA.No.51/2021/CAT/Bangalore Bench Railways have stated that 13 candidates from SC category have joined Hubli Division from the main panel. The names and address of these candidates are furnished as annexure-I. However, as per CEN- 04/2012 a total of 16 candidates were to be recruited under SC category. This indicates there were apparently 3 vacancies which remained unfilled. This falsifies the claim of the respondent that all the posts were filled up. No reason has been assigned by the respondents as to why three posts in SC category have been left unfilled particularly when they had already created a standby list for the same purpose of filling the vacancies if the candidates from the main list fail to turn up or the same remain vacant.
3. The respondents have filed their written statement wherein they have averred as follows:
a) RRB had called for applications for the posts in Technician Category among which one such post was Technician/Gr. III/C&W, Category No. 17 in pay Scale 5200-20200 (GP 1900/-) vide CEN- 04/2012. The applicant had applied offline under SC category for the post of Technician/Gr.III Carriage& Wagon to RRB/Bangalore. The Applicant had applied for RRB/Bangalore only and not to any other RRB as his centre.
b) The recruitment process in RRBs is very transparent and purely based on the merit ranking in the examination conducted and the selection is purely based on the merit of the candidates. There is no manual intervention in the recruitment process and there is no discretionary 7 OA.No.51/2021/CAT/Bangalore Bench power with any authority to consider appointment of candidates to any post. The respondent denies various allegations and averments made therein.
c) The position of the applicant is Standby No. 3 under SC merit for Category No. 17 as opted by the applicant himself. There was no request from Railways/RRBs for diversion of standby papers, the position of the candidate remained to be standby only.
d) There is a clear mention in the call letter for document verification that "It may be noted that merely calling a candidate for document verification does not in any way entitle him/her to an appointment in the Railways. Their candidature is purely provisional and subject to fulfilling the eligibility criteria in all respects and will be rejected at any time if found otherwise. You may please note that your document verification is purely as STAND BY against shortfall in vacancy likely to arise on account of non-report/medical unfitness of the short listed candidates of this category. You may also note that merely calling for document verification does not in any way entitle you to an appointment in the Railways."
e) As per the notification, the notified vacancies in the category of Technician/Gr. III/C&W were as follows: UR-52, SC-16, ST-08, OBC-28; Total 104. The number of Ex Servicemen vacancies was 10, which come under horizontal reservation. However, since qualified Ex Servicemen were not available, the same were filled with normal 8 OA.No.51/2021/CAT/Bangalore Bench candidates. There were no earmarked vacancies for PwBD. However the post was considered as suitable for OH (OL).
f) The movement of standby candidates is done only when (a) there are absentees for document verification; (b) there is an indent for replacement papers from Railways. Diversion of papers is done only when there is an order from Railway Board. The position of the applicant was Standby 3 under SC community. There is no illegality or infirmity in the process being challenged under the present OA. As per the Central Administrative Tribunal Act 1985, the present application is barred by limitation, therefore, deserves to be dismissed on the count of limitation.
g) The position of the applicant is Standby 3 and there was no request from Railways for replacement for this category and the applicant remained shortlisted for empanelment. However the indent was closed on 29.04.2013 and the panel expired on 28.04.2014. Further standby list is not a Pan-India list.
h) Shri. Purshottam Kumar Singh (Roll No. 33915) was a UR candidate and his status was UR standby 2. He was replaced in place of UR candidate who was absent for document verification. Further the position of the applicant is SC standby 3 and the two Standby candidates above the applicant were also not empanelled.
i) It is specifically submitted that the standby are called primarily to avoid shortfall in the panel due to absenteeism of selected candidates. The 9 OA.No.51/2021/CAT/Bangalore Bench position of the applicant is Standby 3 and the two Standby above the applicant were also not empanelled. Further, there was no request from Railways for replacement for this category and the applicant remained shortlisted for empanelment. Moreover, the indent was closed on 29.04.2013 and the panel expired on 28.04.2014.
4. The respondents 1 and 3 have also filed an additional reply statement, in which they have averred as follows:
a) The indent was placed by South Western Railway through Railway Recruitment Board, Bangalore (RRB/BNC) for 104 vacancies of Technician Grade III (C & W) of Mechanical Department with communal breakup of UR-52, OBC-28, SC-16 and ST-08, which was notified in CEN No.04/2012, Cat-17.
b) The entire compliment of the panel was supplied with no balance, i.e., 82 in the first list on 22.3.2013, 04 in second list on 25.3.2013 and 18 in third list dated 29.4.2013 with breakup of UR-49, OBC-30, SC-16 and ST-09. Offer of appointment was issued to all the candidates. In respect of candidates belonging to 'SC' community, out of the 16 candidates, 13 candidates joined. For the remaining 03 vacancies, replacement papers were not called as no requirements against Direct Recruitment Quota (DRQ) were there. The same were filled on compassionate grounds, as per the instructions of Master circular No.16 para VII (b & c). The copy the same is produced as Annexure A-3.10
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5. In his rejoinder the applicant has stated as follows:
a) The respondents here have admitted that out of the 16 candidates under SC category only 13 candidates had joined. It was incumbent on the respondents to fill the remaining 03 posts from the select panel list and there was no other alternative available to the respondents. There is no reason cited for not asking for replacement papers and filling up the same from other candidates on compassionate grounds. It was not open for the respondents to fill these posts from other candidates on compassionate grounds.
6. During the course of arguments, the applicant submitted on 8.8.2023 that the initial information furnished under RTI by South Western Railways to the applicant vide their letter dated 13.8.2021 (Annexure A-20), indicated that there were 13 vacancies available under the SC category and all these 13 vacancies had been filled up. However, in the additional reply statement filed by the Railways, it was mentioned that there were 16 vacancies, out of which 13 posts were filled up and the remaining 3 posts were filled later by appointment on compassionate grounds.
7. The learned counsel for respondents sought time on 8.8.2023 to substantiate his argument in this regard with the particulars. However, in the subsequent hearing on 28.08.2023, the learned counsel submitted that he had received a letter addressed to him from the Assistant Personnel Officer South Western Railway, dated 25.08.23, stating that the RRB papers for appointment of 104 candidates, as well as the concerned RTI file through which the information under RTI had been furnished was not readily available. 11
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8. In view of these submissions, this Tribunal was constrained to issue summons to Respondent No.3 (GM SWR) to be present before this Tribunal in person on 8.9.2023 along with the original records to substantiate the stand of the Railways.
9. Subsequently, MA 336/2023 was filed by the Respondent No.3 seeking exemption from personal appearance and requesting to allow the Principal Chief Personnel Officer, South Western Railway and Coordinating head of the Department to be present before this Tribunal on 08.9.2023. The said MA was allowed for the reasons stated in the MA336/2023.
10. Shri R. Aaivu, Principal Chief Personnel Officer, South Western Railway and Shri K. Asif Hafeez, Senior Divisional Personnel Officer, were present on 8.9.2023 with the original records. An affidavit was filed by Shri S. Purandara Naik, Deputy Chief Personnel Officer, South Western Railway, giving specific details relating to the vacancy position and the related facts pertaining to this case.
11. This additional affidavit filed by the Respondents on 08.9.2023, stated as follows:
a) A Centralized Employment Notice No. 04/2012 was issued by the Railway Recruitment Boards, in which 104 vacancies for Technician-
III (C&W) were advertised. A panel of 104 candidates was received from RRB/Bengaluru, and subsequently provided to the Hubli Division for offering appointments. The contention of the Applicant that 12 OA.No.51/2021/CAT/Bangalore Bench vacancies notified were 118 is not correct. The vacancies notified for ex-servicemen were already included in 104 vacancies.
b) The Applicant has claimed in terms of para 4.8 of OA that 3 candidates had left the service within 6-12 months on joining the post, and he should be considered against these vacancies. In this connection, it is stated that Shri Manish Narayan Tripude was appointed against UR post and left the service after a brief period of work. Shri Malakhed Bhimrao Madhao was removed from service with effect from 10.04.2017 due to unauthorized absence and Shri K. Adam was also removed from service with effect from 13.05.2016 due to unauthorized absence.
c) Replacement papers can be sought from RRB only in the case of non-
joining of candidates within the currency period i.e. within a period of one year in terms of Railway Board's Letter No.E(RRB)/2001/25/26, dated 15.03.2002 (RBE No.35/2002) and Board's Letter No.E(RRB)/2004/3/8, dated 05.05.2006. In the instant case, the employees were removed from service after expiry of currency of the panel.
d) The applicant has contended in terms of para.4.9 of OA that Shri Purshottam Kumar Singh, who is from the standby list, was appointed. In this context, it is clarified that Shri Purshottam Kumar Singh's name was included in the main panel, and he was one of the 104 candidates, specifically a UR candidate, who was appointed to a UR vacancy. 13
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e) Out of the 16 SC candidates on the panel received, 9 were appointed as Technician-III (C&W) in Hubli Division, while the remaining 7 papers were diverted to EMD Shed/Hubli, as vacancies in C&W wing were not available in Hubli Division. 9 candidates were offered appointment as Technician-III in Mechanical Department (C&W wing) in Hubli Division. Out of the 7 candidates allotted to EMD Shed/Hubli, the following three had not responded to the offer of appointment: (a) Shelke Vishal Sudhir (b) Guriya Kumari (c) Chhotelal Tanty.
f) It is submitted that, replacement papers against the above three candidates were not sought from RRB, as the standby list available with RRB is for the post of Technician-III (C&W) only, and not for the Diesel Shed. Subsequently, 19 vacancies (UR-13, SC-02, ST-01 & OBC-03) in the category of Technician (C&W) were filled by way of compassionate ground appointments from 2013 till 2022.
g) The Applicant has claimed in terms of para 4.7 of OA that all the formalities for his appointment have been completed, except for the accrual of a vacancy, which is the only thing left. In this connection, it is stated that the medical classification for the post of Technician-III (C&W) is B1. The applicant was not subjected to medical examination, and hence the suitability of the candidate for the post of Technician-III (C&W) is not known.
h) The currency of RRB panel is valid for a period of one year, and can be extended for a period of one year with the approval of General Manager in terms of Railway Board's Letter No.E(RRB)/2001/25/26, 14 OA.No.51/2021/CAT/Bangalore Bench dated 15.03.2002 (RBE No.35/2002). Date of panel was 29.04.2013 and validity of the panel was up to 28.04.2014. Validity of the panel was not extended further.
i) All the candidates, who were offered the appointment as Technician-
III (C&W) in Hubli Division have joined, and there are no instances of candidates failing to report as Technician-III (C&W). Hence, calling of candidates from the stand-by list has not arisen. As the currency of the panel is no more, it is not feasible to operate the standby panel at this distant date, and this situation is not covered by the rules.
12. Heard the applicant in person, the learned counsel for the respondents and perused the pleadings made by them.
13. In the present case, the applicant had applied for the post of Technician III (C&W). The applicant belongs to SC category. As per the initial advertisement, there were 16 vacancies notified against the SC quota for the post of Technician III (C&W). From a perusal of the pleadings made by the applicant and the respondents, it is established that out of 16 vacancies, only 13 vacancies were filled up by the respondents. Out of these 9 posts were filled up in Hubli Division and the remaining 7 posts were allotted to EMD Shed, Hubli. Out of these 7 posts, only 4 posts were filled up, since 3 candidates did not respond to the offer of appointment, namely (1) Shelke Vishal Sudhir, (2) Guriya Kumari & (3) Chhotelal Tanty.
14. The respondents have submitted that the replacement names against these 3 candidates who had not joined were not sought from the RRB. The reason 15 OA.No.51/2021/CAT/Bangalore Bench for not asking for replacement papers, as per the respondents, was that the standby list available with RRB was for the post of Technician-III (C&W) only, and not for the Diesel Shed.
15. This contention of the respondents cannot be countenanced. Out of 16 persons in the panel, 9 persons were appointed to the post of Technician-III, Hubli Division, while papers of 7 candidates had been diverted and allotted to EMD Shed Hubli. These 7 candidates were also out of the same panel of Technician III only. Hence, the reasons cited by the respondents in their reply for not asking for replacement papers for 3 candidates who had not joined at EMD Shed Hubli, that the posts belonged to Diesel Shed and were not of Technician III (C&W), cannot be countenanced. No such distinction was made while diverting 7 candidates out of 16 candidates available in the panel to EMD Shed. The contention of the respondents that the standby list was not availed from the RRB since these posts were in diesel shed, therefore, cannot be countenanced and deserves to be rejected.
16. These three posts which had become available due to non-joining of the selected candidates, should have been filled up after availing the names from the available standby list with the RRB of suitable SC candidates. However, the respondents utilised these available vacancies for appointing candidates on compassionate grounds from 2013 till 2022. It is apparent that the respondents have grossly erred in not asking for the names of suitable SC category candidates available in the standby list with the RRB at that time in the year 2013. The applicant was admittedly in this list of standby candidates at serial no: 3.
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17. The respondents have stated that the validity of RRB panel was for a period of one year and could be extended for further period of one year with the approval of General Manager in terms of letter RBE 35/2002 dated 15.3.2002. Accordingly, the validity of the panel was only upto 28.4.2014.
18. The respondents have not specified as to what was the time frame available to them to call for additional names from the standby list of SC candidates, after three persons in the SC panel had not responded to the offer of appointment. The very purpose of keeping the standby list is to ensure filling up of all the posts from this standby list in case the persons who are in the main list, do not join.
19. A perusal of the Railway Board's instructions dated 20.8.2009, indicates as follows:
"Some Railways had brought to the notice of the Board that out of the candidates whose names are borne on RRB panels, a fairly large number either do not report or fail in the medical examination. Due to this, the actual materialization of the panel is often short of the total vacancies for which the panel had been prepared. To overcome this problem, Board had issued directives vide reference [1] above permitting.20% extra candidates to be called for certificate verification and kept in readiness in case the indenting Railway/ Unit asks for a replacement panel. This percentage was revised to 30% vide reference [2] above. This subject was also discussed in CPO's conference held on 01.05.2009.17
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2. It has, however, been observed that a number of Railways / Units are not making use of the facility of Replacement Panels. They are adding the vacancies of the previous indent to the next indent. Due to this, on one hand the vacancies remain unfilled and on the other, time, money & energy are wasted in forming a fresh panel. It is, therefore, reiterated that Railways/ Units must make full use of the provision of Replacement panels. From now on whenever a fresh indent is placed on RRB, it should carry a certification that the previous panel for the Post has been exhausted and the provision for Replacement Panel has been made use of. If not, reasons for the same should be spelt out."
20. The above circular clearly indicates that the Railways/ Units must make full use of the provisions of replacement panels. Keeping these instructions in view, it is apparent that the respondents were required to call for names from the standby list for filling up the 3 vacancies under SC category due to non- joining of the selected 3 candidates out of 16 posts. The diversion of these vacancies for filling them up from other persons on compassionate grounds cannot be countenanced. These vacancies had been advertised to be filled up through direct recruitment out of candidates who had applied against these advertised posts after getting duly selected/ shortlisted based on their performance in the selection procedure conducted by the RRB.
21. The respondents have taken the stand that the currency of the replacement panel was valid up to 28.4.2014 only, and this validity cannot be extended further. However, a right had accrued to the applicant after being listed in the standby panel and his non-consideration from the standby list to fill up 18 OA.No.51/2021/CAT/Bangalore Bench vacancies created by non-joining of 3 persons, cannot be countenanced in the interest of justice. The applicant had no information or knowledge of the correct position of availability of three vacancies due to non-joining of three candidates. This information became known to the applicant only after he was informed through RTI on 13.08.2021 by the Principal Chief Personnel Officer SWR Hubli. The specific details including the names of 3 candidates who did not join become available only after filing of the affidavit by Deputy Chief Personnel Officer (HQ & Welfare) South Western Railways Hubli on 8.9.2023. The delay, if any, in this case is due to the non- availability of correct and appropriate information to the applicant, and deserves to be condoned.
22. Accordingly, the present OA has merit and deserves to be allowed. Keeping the above in view, the following orders are made:
a) The respondents are directed to consider the name of the applicant for appointment against one of the three vacancies which were available at that time in the year 2013, due to non-joining of the 3 candidates at EMD Hubli Shed, namely (1) Shelke Vishal Sudhir, (2) Guriya Kumari & (3) Chhotelal Tanty.
b) Since these three available vacancies have been filled up by the respondents subsequently, by diversion, from other candidates on compassionate grounds, the respondents are directed to consider creating a supernumerary post by adjustment from an anticipated future vacancy, for the purpose of appointment of the applicant, if found otherwise suitable.19
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c) However, keeping in view the specific circumstances of this case, the applicant would be considered to have been appointed with prospective effect only and will be entitled to all benefits including pay only from the date of his joining on the said post under rules.
23. The OA is disposed of with the above directions. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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