Ajay Kumar vs M/O Railways on 30 January, 2019

[Cites 10, Cited by 0]

Central Administrative Tribunal - Chandigarh

Ajay Kumar vs M/O Railways on 30 January, 2019

1. The applicant has approached this Tribunal under section 19 of the Administrative Tribunal Act, 1985, seeking issuance of a direction to the respondents to consider his candidature for the post of Assistant Loco Pilot under OBC/BC-A category.

2. The facts of the case, which led to filing of the instant Original Application (O.A), are that the respondents issued an advertisement on 3.2.2018 (Annexure A-1), inviting applications for various posts including the post of Assistant Loco Pilot and last date of receipt of applications was 5.3.2018. The applicant applied against the same for which written test was conducted on 9.8.2018 in which applicant was successful. He was sent a text message on 22.10.2018 informing him that he has secured qualifying marks in first stage of CBT and he was advised to fill the option for RRB, post preference and exam trade before 23.59 of 21.10.2018. He did not submit the options and as such was advised once again to do it by 23.10.2018 failing which his candidature was to be cancelled, vide message dated 22.10.2018 (Annexure P-3). However, according to the applicant, the screen of his mobile was not working, so he could not submit his options. Ultimately, result of written test was declared on 2.11.2018 in which applicant's name was missing. On enquiry, he was informed that since he did not submit options, so his name was not included. It is only on 20.11.2018, that applicant got repaired his mobile phone and came to know about the 2nd text message indicated above. The applicant submitted a representation dated 24.11.2018 (Annexure P-4) explaining the entire position. Meanwhile, the respondents issued a notice dated 4.12.2018 (Annexure P-5) that a review was under taken and a fresh result of first stage of CBT along with revised list of short listed for second stage was 3 (OA No.060/01504/2018) likely to be published by 20.12.2018. The applicant submits that since he was denied an opportunity of submission of an option, due to technical fault in his mobile phone, and as such he cannot be denied a consideration in the selection as it would be against the principles of natural justice.

3. When the case came up for hearing on 20.12.2018, an affidavit was filed by applicant that he had never received an e-mail about submission of option from the respondents. Thus, the respondents were directed to allow the applicant to appear provisionally for the second stage of CBT, scheduled for 21.12.2018, subject to out-come of the O.A.

4. Meanwhile the applicant moved M.A.No. 48/2019 for issuance of direction to the respondents to allow him to appear provisionally for the second stage CBDT, rescheduled for 20.1.2019 to 23.1.2019.

5. To this M.A., the respondents have filed a reply. They submit that the applicant has not approached with clean hands to this court and obtained stay order by suppressing the true facts. They submit that no candidate has a right of appointment merely by appearing and qualifying the selection process and State is not bound to fill up the advertised vacancy. Reliance is placed on SHANKARSAN DASH VS. UNION OF INDIA, 1991(2) SCT 194 (SC) and UOI VS. K.V. VIJEESH, AIR 1996 SC 1361. It is also pleaded that if a candidate does not fulfil the condition laid down in advertisement, his candidature can always be cancelled. Reliance is placed on UOI & ANOTHER VS. SARWAN RAM & ANOTHER, C.A.No. 9388 of 2014 (SLP (C)No. 706 of 2014 decided on 8.10.2014 by Hon'ble Apex Court. No relaxation can be given if a condition is not fulfilled for which reliance is placed on BEDANGA TALUKDAR VS. SAIFUDAULLAH KHAN & OTHERS, AIR 2012 SC 1803. Moreover, the Courts cannot indulge in security of the application 4 (OA No.060/01504/2018) forms for recruitment for which reliance is placed on BHUPENDER SINGH VS. UOI & OTHERS, O.A.No. 060/0944/2017 decided on 14.11.2017 by this Bench of the Tribunal. The respondents plead that the applicant has mislead this Tribunal by pleading that examination as scheduled for 21.12.218. In fact it was scheduled for 21.1.2019. It is pleaded that no interim relief could be allowed to applicant more so when he has not approached this Tribunal with clean hands, for which reliance is placed on decisions NAMELY K.D. SHARMA VS. STEEL AUTHORITY OF INDIA LTD. AIR 2008 SCW 6654 and Jiwan Dass Sethi Vs. State of Punjab, 1999(3) SCT 115. They plead that the applicant has not followed the guidelines for appearing in the examination and as such he is estopped from challenging the action of the respondents.

6. Today when the case came up for hearing, learned counsel for the respondents made fervent appeal to hear the case on interim relief granted to the applicant. However, considering the fact that the respondents have filed a detailed reply to the M.A. and explained the factual scenario, we proceeded to hear the arguments on merit of the case itself, with their consent.

7. We have heard the learned counsel for the parties at length and examined the material on file, with their able assistance.

8. The facts of the case and documents on record disclose that the RRB had issued advertisement inviting applications for the post of Assistant Loco Pilot (ALP) and Technicians. The applicant was one of the candidates with Registration No. 230037218. He appeared in the written examination and was successful. It is not in dispute that important instructions inter-alia include that candidates should have their own mobile number and valid and active personal email id and 5 (OA No.060/01504/2018) keep them active for the entire duration of recruitment as RRBs shall send all recruitment related communications only through SMS and email till the recruitment is completely over. RRBs will not entertain any request for change of mobile number and e-mail address at any stage. It is also clear that on 20.9.2018, notice was uploaded on the link CEN 01/2018 on the official website of RRB from 22.9.2018 to 1.1.2018 to enable the candidates who appeared in the first stage of CBT to select RRB and priority of option for railway production units and posts. Para 2.0 clearly provides that if needful is not done, candidature will not be considered for second stage of CBT (Annexure R-1). In any case, on 29.9.2018, additional opportunity for selection of RRB, post preference and exam trade was made available on the indicated link from 1.10.2018 to 6.10.2018. On 18.10.2018 anther opportunity for selection of RRB, post preference and exam trade was made available upto 21.10.2018. Again on 21.10.2018 final opportunity was given upto 25.10.2018. The notices were also published in 15 news papers across the concerned areas. The information was also given through SMS and emails including to the applicant (Annexure R-2). In fact, the applicant admits that he did receive first SMS but could not fill up the option and subsequently his mobile's screen was not working. Thus, he cannot be made to suffer for a technical hitch as it would amount to taking benefit of his own wrong. The plea taken by the applicant, to say the least, is childish and does not deserve any consideration for the simple reason that in this stage of technological advancement, when the entire process of sending information is done on email/sms and candidates have been warned to keep their mobiles functional and, in any case, he can also get information from the site of the Railway Recruitment Board if he has not received any information on his phone or e-mail, then the 6 (OA No.060/01504/2018) applicant cannot be allowed to turn around and claim that due to screen being not working, he was not aware of the options to be given more when he admits that first message was received by him. In these circumstances, one cannot but agree with the respondents that the applicant is estopped from challenging the action of the respondents in not allowing him to participate in second stage of CBT, due to his own fault, as he did not fulfil the conditions of the advertisement / selection issued from time to time.

9. The issue involved in this case in fact stands clinched in various cases including one (BEDANGA TALUKDAR VS. SAIFUDAULLAH KHAN & OTHERS (supra) cited by learned counsel for the respondents that a person who does not fulfill the terms and conditions of advertisement, cannot be granted any relaxation. The observations of the Hon'ble Apex Court in that connection make the position more than clear and are reproduced as under :-

"28. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules.

Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.

29. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be 7 (OA No.060/01504/2018) permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.

30. In our opinion, the High Court was in error in concluding that the respondent No.3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21st May, 2010, the Commission has recorded the following conclusions:- "Though Shri S. Khan had mentioned in his letter dated

10.12.2009 that he was resubmitting the Identity Card with regard to Locomotor Disability he, in fact, had submitted the documentary proof of his Locomotor Disability for the first time to the office of the A.P.S.C. through his above letter dated 10.12.2009. However, after receiving the Identity Card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection.

The Commission while examining the matter in details observed that Shri S. Khan was treated as General candidate all along in the examination process and was not treated as Physically Handicapped with Locomotor Disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt. Anima Baishya had submitted an application before the Chairperson on 26.2.2009 claiming herself to be a S.C. candidate for the first time. But her claim for treating herself as a S.C. candidate was not entertained on the grounds that she applied as a General candidate and the caste certificate in support of her claim as S.C. candidate was furnished long after completion of examination process."

31. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of respondent No.1 on the basis of identity card submitted after the selection process was over, with the publication of the select list."

10. Not only that, similar observations were made by this Bench of the Tribunal in the case of BHUPENDER SINGH (supra),as under :-

"6. The applicant was aware through the recruitment notice that he is appearing in a computerized examination and hence his argument of lack of knowledge of computers is not acceptable. Whereas Annexure A2 application form was filed on 10.01.2016, the applicant has belatedly procured the OBC certificate on 15.03.2017, almost a year thereafter, after the declaration of the 2nd stage examination results. Whereas the respondents have provided the opportunity for correction of errors to be made in the application form submitted, upto the closing date for receipt of applications, there was no provision for the relief being sought of for corrections to be made after the final submission of the application form or after participating in the recruitment process . Such an opportunity given to the applicant would be violative of Articles 14 & 16 of the Constitution as such an opportunity is denied to others similarly placed 8 (OA No.060/01504/2018) and the advertisement for the post did not provide for such a provision of correction post-closing date of receipt of application form. This was held by the Apex Court in Bedanga Talukdar Vs. Saifudaullah Khan and Others: AIR 2012 SC 1803. The Apex Court in UOI & Anr. Vs. Sarwan Ram & Anr. In Civil Appeal No. 9388 of 2014 (SLP (C) No. 706 of 2014 decided on 08.10.2014 had held that it is not open to the courts to sit in appeal over the scrutiny of applications submitted by applicants. Further, under Article 226 of the Constitution of India, the High Court in that case was not competent to scrutinize the application filed for appointment and substitute its own opinion based on some evidence to come to a conclusion as to whether the application is defective or otherwise."

11. In this case there is a specific plea taken by the applicant that he had an opportunity of filling in the relevant options but he did not do it and as such he cannot be allowed now to turn around and claim that he should be granted further opportunity or relaxation, which is not permissible, at all, in view of aforesaid factual scenario and the law cited in that relevant connection.

12. In view of the above discussion, these O.As turn out to be devoid of any merit and are dismissed, leaving the parties to bear their own costs. Needless to mention that the Interim Order stands vacated and connected MAs also stand disposed of accordingly.

(P. GOPINATH)                                             (SANJEEV KAUSHIK)
  MEMBER (A)                                                   MEMBER (J)



PLACE: CHANDIGARH.
DATED: JANUARY 30 , 2019


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Central Administrative Tribunal - Chandigarh