Central Administrative Tribunal - Delhi
Prem Singh S/O Ram Swaroop vs Union Of India Through on 19 May, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1727/2011 M.A.No.1347/2011 This the 19th day of May 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) S/Shri 1. Prem Singh s/o Ram Swaroop Pointsman Under SS/Kaithal r/o Railway Quarter Kaithal (Haryana) 2. Om Prakash s/o Chaman Lal Pointsman Under SS/Kaithal r/o Railway Quarter Kaithal (Haryana) 3. Ram Avtar s/o Laxman Singh Cabinman Under SS/Rohtak r/o Railway Colony Rohtak (Haryana) 4. Azad Singh s/o Tek Ram Station Assistant Under TI/KKDE Dhaula Mazra Kuruchhetra r/o Vill. & PO Kharawar Distt. Rohtak (Haryana) 5. Hari Lal s/o Prabhu Senior Pointsman Tughlakabad Northern Railway, New Delhi 6. Pawan Kumar s/o Daya chand Cabinman Northern Railway Bijawasan, New Delhi 7. Nathu ram Rameshwar Dayal Pointsman A Northern Railway Bijawasan 8. Jagdish Parshad Jas Ram Singh Cabinman N R Palamn, New Delhi ..Applicants (By Advocate: Shri B S Mainee) Versus Union of India through 1. Secretary Railway Board Ministry of Railways Rail Bhawan, New Delhi 2. General Manager Northern Railway Headquarters Office Baroda House, New Delhi 3. Divisional Railway Manager Northern Railway State Entry Road New Delhi 4. Jagdish Chand s/o Durga Prasad Cabinman Northern Railway, Tughlakabad 5. Bhag Mal s/o Banarsi Dass Cabinman Northern Railway, Karnal 6. Karan Singh s/o Surat Singh Sr. Pointsman Railway Station Northern Ralway, Biswana (Respondent Nos.4 to 6 through, DRM, N Railway, State Entry Road, New Delhi ..Respondents O R D E R
Shri M.L. Chauhan:
The applicants have filed this OA thereby praying for the following reliefs:
8.1 That this Honble Tribunal may be graciously pleased to allow this application and direct the respondents to convene Review DPC and form the panel on the basis of merit and not on the basis of seniority as per law laid down by the Honble Punjab & High Court upheld by Honble Supreme Court & followed by Full Bench of the Honble Tribunal.
8.2 That the Honble Tribunal may be further pleased to direct the respondents to extend the benefit of Full Bench judgment in B.K. Guptas Case to the Applicants in case they are found within the range of successful candidates on merits and give consequential benefits.
8.3 That this Honble Tribunal may also be pleased to grant any other or further relief which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Along with the OA, the applicants have also filed MA-1347/2011 seeking condonation of delay in filing the OA.
3. Briefly stated, facts of the case are that the respondents took steps for filling 125 vacancies of Goods Guards by issuing notification dated 28.3.2008 and for that purpose, persons from different categories, like Train Clerks, Ticket Collectors, Commercial Clerks, Shunting Masters, Cabin Men, etc. were called for the written examinations, which were held on 6.4.2008, 10.4.2008, 26.4.2008 and 27.4.2008. After holding written examinations, the result was declared vide letter issued by the Divisional Railway Manager dated 2.7.2008 in terms of which 160 candidates, including the applicants, had been declared to have qualified for consideration of DPC. After holding the written examination and conducting DPC, the Divisional Railway Manager, New Delhi issued a final panel in terms of which 92 candidates were placed on the panel and the names of the applicants did not find mention in the said panel.
4. The grievance of the applicants is that the said panel was prepared in violation of the law laid down by the Honble Apex Court in Ram Jay Ram v. Union of India 1996 (1) SC SLJ 537 followed by the Punjab and Haryana High Court judgment dated 9.4.2008 passed in Subhash Chand Joshi v. Union of India (W.P.No.1948/2002), which decision has also been affirmed by the Apex Court by dismissing the Special Leave Appeal (C) No.16774/2008 on 5.12.2009, inasmuch as the Department declared the panel on the basis of seniority but not in accordance with the merit depending on the marks obtained by each candidate. It is stated that the applicants submitted a representation to the General Manager, Northern Railway for consideration of their case in the light of the judgment rendered by the Punjab and Haryana High Court but the respondents have not responded to the same.
5. It is further pleaded that even subsequently the Railway Board has issued a circular, i.e., RBE No.113/2009 dated 19.6.2009, which supersedes all previous instructions containing stipulation to the effect that final panel in such cases is required to be drawn up in the order of seniority from amongst those who secure a minimum of 60% marks in professional ability and 60% marks in the aggregate, provided that those securing a total of 80% or, more marks, are classed as Outstanding and placed at the top of the panel, in the order of seniority and now the panel has to be prepared on the basis of merit uninfluenced by seniority of the candidates.
6. It may be stated that the instructions so issued by the Railway Board vide aforesaid letter dated RBE No.113/2009 were made applicable with immediate effect, i.e., from the date of issue of the letter dated 19.6.2009. It is further stipulated in paragraph 3.2 of the instructions that any previous selection panel drawn up otherwise, before issue of this letter, need not be reopened.
7. Simultaneously, the un-amended sub para 219 (j) of Indian Railway Establishment Manual, Volume I, 1989 was also substituted by the existing clause (iii) below sub-para (j) of 219 in terms of the instructions issued above. In other words, the substituted provision stipulates that the final panel should be drawn up in the order of merit based on aggregate marks of Professional ability and Record of service. However, a candidate must secure a minimum of 60% marks in Professional ability and 60% marks in the aggregate, for being placed on the panel. It was further stipulated that there will be no classification of candidates as Outstanding.
8. As already stated above, the grievance of the applicants is that in terms of RBE No.113/2009 and in view of the decision of the Punjab and Haryana High Court in the case of Subhash Chand Joshi (supra) and subsequent decision rendered by the Full Bench of this Tribunal in R.K. Gupta & others v. Union of India & others (OA-2765/2009) decided on 4.1.2011, the respondents be directed to convene a review DPC and form the panel on the basis of merit.
9. We have heard the learned counsel for the applicants at the admission stage. We are of the view that the applicants are not entitled to any relief for more than one reason. Admittedly, when the posts were advertised and selection process for filling up the post of Guards was taken, results were declared as per procedure in vogue, i.e., in terms of clause (iii) below para 219 (j) final panel in such cases was required to be drawn up in the order of seniority from amongst those who secure a minimum of 60% marks in professional ability and 60% marks in the aggregate, provided that those securing a total of 80% or, more marks, are classed as Outstanding and placed at the top of the panel, in the order of seniority. The applicants knowing fully well about the procedure to be adopted by the department to fill up the post of Guard applied for the said post and appeared in the written test. They also qualified the written test but they were not placed in the panel probably on the ground that they were not senior enough to be included in the panel. Admittedly, the panel was declared on 22.12.2008. They have now made a grievance regarding the panel on the premise that the panel should have been prepared on merit in terms of the law laid down by the Punjab & Haryana High Court and subsequent instructions issued by the Railway Board.
10. The question, which requires our consideration, is whether the applicants, who participated in the selection process with eyes open that the selection will be carried out in terms of paragraph 219 (j) of IREM, which was in vogue at that time and had not challenged the criteria adopted by the respondents for filling up of the post of Guard, can be permitted to make challenge to the said criteria after they have failed in the selection and that too after a lapse of more than two years?
11. Further the question, which requires our consideration, is whether this Tribunal can treat the panel alive for so long and give direction to the State to review the said panel and give appointment to the applicants at this belated stage when in the interregnum the respondents might have held selection and prepared a fresh panel. According to us, the answer to the aforesaid question is in the negative. The law on this point is no longer res integra. The Apex Court in a number of decisions has held that once persons have participated in the selection process based on certain criteria, they are precluded to challenge the said criteria.
12. To the similar effect are also the various decisions of the Apex Court where it has been held that challenge to the recruitment process cannot be made by a person, who has participated in the selection process. At this stage, we wish to refer to the latest decision of the Apex Court in the case of Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & others, (2011) 1 SCC (L&S) 21 wherein the Apex Court has held that challenge to selection criteria after participating in selection process is impermissible. At this stage, we wish to reproduce the paragraph 25 to 28of the said judgment, which thus reads:
25. In this connection, we may refer to the decision of the Supreme Court in Dr. G. Sarana Vs. University of Lucknow & Ors. reported in (1976) 3 SCC 585 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus:-
"15.... He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
26. In P.S. Gopinathan Vs. State of Kerala and Others reported in (2008) 7 SCC 70, this Court relying on the above principle held thus;
"44. .....Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992.The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lucknow......."
27. In Union of India and Others vs. S. Vinodh Kumar and Others reported in (2007) 8 SCC 100 at paragraph:
18.. it was held that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
28. Besides, in K.H. Siraj vs. High Court of Kerala and Others reported in (2006) 6 SCC 395 in paragraph 72 and 74 it was held that candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel.
13. To similar effect is the another decision of the Apex Court in Manish Kumar Shahi v. State of Bihar & others, (2011) 1 SCC (L&S) 256 where, in paragraph 16, the Apex Court has held as follows:
16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioners name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, (1995) 3 SCC 484, Marripati v. Govt. of A.P., (2007) 11 SCC 522, Dhananjay Malik v. State of Uttranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515.
14. Thus, in view of the law laid down by the Apex Court, as held above, it is not permissible for the applicants to challenge the selection process, which was conducted in the year 2008 and the panel prepared. As already stated above, in case the applicants had appeared in the merit list, they would not have challenged the selection and preparation of panel. It is only much after the lapse of about two years when the applicants were not empanelled that they filed this OA for reviewing the panel, which panel has been given effect to in the year 2008.
15. Further the applicants have not given any satisfactory explanation as to why they have not approached this Tribunal at the earliest. It may be stated that the judgment rendered by the Punjab & Haryana High Court on 9.4.2008 stipulates that the panel has to be prepared on merit and not on seniority basis. Admittedly, the panel in respect of 125 posts of Guard, for which purpose steps for filling up the vacancies were taken on 28.3.2008, the panel was prepared much after the decision of the High Court on 22.11.2008. It was open for the applicants to make representation before the authorities that the result of the said exam may not be declared in terms of law laid down by the Punjab & Haryana High Court. It may be stated that the result was declared on 2.7.2008, i.e., three months after the judgment was rendered by the High Court. Since the applicants had qualified in the written examination, they conveniently did not agitate the matter that the panel should be prepared on merit basis and not on seniority basis. Even the circular issued by the Railway Board vide letter dated 19.6.2009 stipulates that the selection already made shall not be re-opened and the criteria for the purpose of preparing the panel on the basis of merit shall be in vogue from the date of issue of the instructions. It may be stated that the applicants have filed this OA only on 2.3.2011.
16. There is yet another reason why the applicants are not entitled to any relief. The applicants have prayed that fresh panel may be made on merit instead of seniority as, according to their learned counsel, the applicants are entitled to be empanelled in case the panel is prepared on the basis of merit. In case the applicants are empanelled, some of the persons who have been incorporated in the impugned panel and granted promotion will have to be reverted. Admittedly, the applicants have not impleaded those persons as party respondents in this OA, who have been empanelled and subsequently selected, as they will be affected in case the relief is granted to the applicants. Thus, on this ground also, the applicants are not entitled to any relief. Thus, the applicants are precluded to make challenge to the panel prepared on 22.12.2008 at this stage in view of the law laid down by the Apex Court, as noticed above.
17. For the foregoing reasons, the OA is found bereft of merit and is accordingly dismissed with no order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/