Telangana High Court
Union Of India vs Sri. M. Vijay Kumar, on 2 July, 2019
Author: Raghvendra Singh Chauhan
Bench: Raghvendra Singh Chauhan, Shameem Akther
High Court for the State of Telangana
The Hon'ble The Chief Justice Raghvendra Singh Chauhan
and
The Hon'ble Dr. Justice Shameem Akther
W.P. No. 10089 of 2019
Date: 02-07-2019
Between:
Union of India
Rep. by its General Manager,
South Central Railway
Secunderabad and another
...Petitioners
and
Mr. M. Vijay Kumar
...Respondent
Counsel for the petitioners: Mrs. Pushpinder Kaur Counsel for the respondent: Mr. A. Raghu Kumar The Court made the following:
2 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 Order: (per Hon'ble The Chief Justice Raghvendra Singh Chauhan) The Union of India has challenged the legality of order dated 07-09-2018, passed by the Central Administrative Tribunal, Hyderabad Bench (for short 'the Tribunal'), in OA.No.1329 of 2013, whereby the learned Tribunal has allowed the OA filed by the respondent, Mr. M. Vijay Kumar, and has issued the following directions:
"(i) Investigate the identity of the applicant within 30 days of the receipt of this order on the basis of the school certificates, the certificates authenticated by the Railway Officers and other attendant documents, if any produced by the applicant.
On verification and if being found as valid, the issue be referred to Railway Board for approval to take the applicant on the respondent rolls against notification dated 9.2.11 on the date on which the last candidate selected of the said notification has joined the respondent organization.
(ii) If any pre-appointment training is required the same be arranged and completed.
(iii) The applicant be brought on roll with notional seniority to be fixed from the date the individual next in merit of the applicant has been afforded.
(iv) No back wages to be paid for the interregnum period from the date of fixing notional seniority till the date of joining the respondents but pay shall be fixed notionally with the attendant increment and revision of pay as per the VII Pay Commission Recommendation 3 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 so that the applicant is not placed in a state of "junior drawing more pay".
(v) The nonfeasance being not one of inadvertent in character, exclusion of the applicant in the appointment is one of machination by someone in the respondents' organization. Respondents shall make proper investigation and hold an inquiry and take disciplinary action, in accordance with the extant Rules, against the concerned Workshop Manager for not processing the case to its logical end as it involves the future of a poor unemployed youth and it does send a signal to others in the respondent organization to be alert on issues of public importance."
Briefly the facts of the case are that, the respondent had passed 10th class in March, 2001, and intermediate in the year 2004. Having completed his intermediate education, he had applied for National Apprenticeship Certificate issued by the Government of India, Ministry of Labour and Employment, National Council for Vocational Training. He underwent an apprenticeship training from 18-04-2007 to 17-04-2010 in the trade of 'fitter' under the Apprentices Act, 1961, at Carriage Workshop, Lallaguda of South Central Railways. He had passed the prescribed trade test conducted by the National Council for Vocational Training held in October, 2010. Therefore, he was issued National Apprenticeship Certificate. He also underwent Typewriting 4 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 (English) lower test, and passed the same in second class. He was awarded the Technical Examination Certificate by the State Board of Technical Education and Training, Government of Andhra Pradesh. The applicant further claims that he holds NCC 'B' and 'C' certificates for the years 2003 and 2005.
While things stood thus, on 09-02-2011, the respondent No.2, Chief Personnel Officer, South Central Railways, issued a notification for filling up the vacancies of the erstwhile Group 'D' by engaging the Act Apprentices trained in the workshops as substitutes, in pay band of Rs.5200-20,200/- with Grade Pay of Rs.1,800/-. According to the rules governing the selection, the applications had to be submitted by those, who had passed the 10th class, and had successfully completed the Act Apprentices Course, in any trade, in the workshops of South Central Railways. Moreover, the eligible candidates had to attend a walk-in- interview scheduled for 10-03-2011.
Since the respondent fulfilled all the eligible conditions, he applied for the said post, and appeared before the screening committee on 10-03-2011. However, when the 5 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 selection list was finally published, he did not find his name therein. Instead, he discovered that those, who were less meritorious than him, were duly selected. According to the respondent, about 144 candidates were selected vide letter dated 30-03-2011. Therefore, the respondent submitted a series of representations. However, when he approached the petitioners, he was informed that since his physical appearance did not tally with the photograph affixed on his application form, he could not be selected. From 2011 till 2013, the applicant kept on asking the petitioners as to the reason why he was not selected despite the fact that he has established his identity with the submission of his certificates. But, even then, all his pleas fell on deaf ears. Therefore, on 26-01-2013, he sought the requisite information under the Right to Information Act, 2005 (for short 'the RTI Act'). Since the respondent was informed that his case has been kept in abeyance, he filed another application under the RTI Act on 03-03-2013, for seeking the reason as to why his case was kept in abeyance, and was not sent to the competent authority. In reply, the respondent was informed that despite the fact that thirty five persons were selected, two names were not approved by the 6 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 authority. However, according to the respondent, the records established the fact that his case was not considered at all by the competent authority. Therefore, on 29-07-2013, the respondent sent a detailed representation to the General Manager, South Central Railways, respondent No.1. However, even this detailed representation went unheeded. Therefore, the respondent filed the aforesaid OA before the Tribunal. As mentioned above, by order dated 17-09-2018, the learned Tribunal not only allowed the OA, but also gave detailed directions to the petitioners. Hence, this petition before this Court.
Mrs. Pushpinder Kaur, the learned counsel for the petitioners, has vehemently contended that the OA should have been dismissed on the ground of delay and laches. For, the OA was filed in the year 2013 against the notification issued in the year 2011. Therefore, the learned Tribunal was not justified in entertaining and allowing the OA.
Secondly, the learned Tribunal was not justified in directing the petitioner to make proper investigation, to hold an enquiry, and to take disciplinary action against the Workshop Manager for not processing the case of the 7 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 respondent. According to her, this direction intervenes with the discretionary power of the Railway Department. Hence, at least, this direction should be expunged by this Court.
On the other hand, Mr. A. Raghu Kumar, the learned counsel for the respondent, has submitted that the respondent was running from pillar to post trying to discover the reason as to why his case was not considered by the competent authority. Even the detailed representation submitted by him in 2013 did not elicit any response. Hence, the respondent was certainly justified in challenging the omission on the part of the petitioners, and in challenging the fact that less meritorious persons were appointed while he was denied his right of appointment. Therefore, the learned counsel has supported the impugned order.
Needless to say, the respondent did have a right of consideration for his appointment. Considering the fact that other less meritorious persons have been appointed, while the respondent had been left out, obviously, the right of equity enshrined under Article 14 of the Constitution has been violated by the petitioners.
8 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 Moreover, the respondent had been pursuing his remedies by filing the representations before the petitioners. However, it is the petitioners, who have ignored his representations, detailed one or even a peripheral one. Tired of the lackadaisical attitude of the petitioners, the respondent had finally knocked at the doors of the Tribunal. Therefore, the OA did not suffer from the virus of "delay and laches". Hence, the learned Tribunal was certainly justified in issuing the detailed directions to the petitioners.
The learned counsel for the petitioners further informs this Court that in compliance of the directions issued by the learned Tribunal, the identity of the respondent has been verified, and his case has been referred to the Railway Board. Hence, this part of the directions has already been complied with by the petitioners.
Obviously, the petitioners are aggrieved by the direction (v) issued by the learned Tribunal to investigate, and to initiate disciplinary action against the concerned Workshop Manager. Since it is only this limited part that the 9 HCJ & Dr.SA, J W.P.No.10089 of 2019 Dt: 02-07-2019 petitioners seem to be really aggrieved by, direction (v) contained in the impugned order is hereby deleted.
For the reasons stated above, this writ petition is partly allowed as mentioned herein above.
As a sequel, Miscellaneous Petitions, pending if any, stand disposed of as infructuous.
______________________________ (Raghvendra Singh Chauhan, CJ) _____________________ (Dr. Shameem Akther, J) Dt: 2nd July, 2019 lur