Central Administrative Tribunal - Cuttack
T R Barik vs M/O Railways on 5 January, 2024
O.A. No. 199 of 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 199 of 2019
Heard & reserved on :04.01.2024 Order on : 05.01.2024
Present:
Hon'ble Mr.Pramod Kumar Das, Administrative Member
Hon'ble Mr. Rajnish Kumar Rai, Judicial Member
1. Tushar Ranjan Barik, Aged about 42 yrs, S/o Baishnaba
Charan Barik, working as TM-IV under SSE/P.Way/KUR,
Khurda Road, Dist- Khurda.
2. Sanatan Sethi, Aged about 42 years, S/o- Late Budhiram
Sethi, working as TM-III, under SSE/P.Way/KDRP,
Kandarpur, Dist-Cuttack.
3. Amulya Kumar Dandapat, Aged about 45 years, S/o Late
Chntamani Dandapat, working as TM-IV, under
SSE/P.Way/KDRP, Kandarpur, Dist- Cuttack.
4. Saila Ranjan Rout, Aged about 43 years, S/o- Bishnu
Charan Rout, working as TM-IV, under SSE/P.Way/DNM,
Dhanmandal, Dist- Jajpur.
5. Yasobanta Swain, Aged about 36 years, S/o- Bhaskar
Chandra Swain, working as TM-IV, under SSE/P.Way/DNM,
Dhanmandal, Dist- Jajpur.
6. Tapan Biswal, Aged about 32 years, S/o- Kulamani Biswal,
working as TM-IV, under SSE/P.Way/HCNR,
Harichandanpur, Dist- Keonjhar.
7. Rajiba Lochan Mandal Aged about 37 years, S/o- Bipin
Bhihari Mandal, working as TM-IV, under SSE/P.Way/BHC,
Bhadrak.
8. Moida Hemachandra Rao, Aged about 42 years, S/o- Moida
Satyanarayan, working as Helper-II KTV (KOTTAVALASA)
SSE/TELE/KTV, Kottavalasa, Andhra Pradesh.
9. Jaswant Prajapati, Aged about 39 years, S/o- Loanath
Prajapati, working as TM-IV under SSE/P.Way/HCNR,
Harichandanpur, Dist- Keonjhar.
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10. Tapan Kumar Swain, Aged about 40 years, S/o-
Brundaban Swain, working as TM-III under
SSE/P.Way/HCNR, Harichandanpur, Dist- Keonjhar.
11. Sibaram Das, Aged about 41 years, S/o- Kalu Charan
Das, working as TM-IV, under SSE/P.Way/RBA, Rambha,
Ganjam.
12. Rameswar Kumbhar, Aged about 30 years, S/o-
Harekrushna Kumbhar, working as TM-IV, under
SSE/P.Way/MNGD, Waltair, Andhra Pradesh.
13. Partha Sarathi Jena, Aged about 36 years, S/o- Purna
Chandra Jena, working as TM-III, under O/o-
SSE/P.Way/KDRP (working presently under
SSE/P.Way/ROP, (Rupsa) Division: Kharagpur, KGP.
14. Manaranjan Mallick, Age dabout 39 years, S/o- Balaram
Mallick, working as TM-III under SSE/P.Way/GRKN,
Gorakhnath, Dist- Jagatsinghpur.
15. Aruna Budumuru, Aged about 43 years, W/o- Balivada
Venkata Ramesh, working as TM-III, under
SSE/P.Way/DNKL, Dhenkanal.
16. Jayashree Allumalla, Aged about 39 years, D/o- A.
Venkata Giri, working as Helper-II under
SSE/W/WW/KUR, Khurda.
17. Ashok Kumar Sahoo, Aged about 29 years, S/o-
Kartikeswar Sahoo, working as TM-III under
SSE/P.Way/PVP (Parvatipuram), Parvatipuram, Andhra
Pradesh.
18. Gopinath Rout, Aged about 39 years, S/o- Dhruba Rout,
working as TM-III under SSE/P.Way/LKMR, Laxmipur,
Koraput.
19. Kumar Chandra Nayak, Aged about 40 years, S/o-
Krushna Chandra Nayak, working as TM-IV under
SSE/P.Way/KDRP, Kandarpur, Cuttack.
20. Raghunath Nayak, Aged about 36 years, S/o- Alekha
Chandra Nayak, working as TM-III under SSE/P.Way/CTC,
Cuttack.
......Applicant
VERSUS
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O.A. No. 199 of 2019
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1. Union of India represented through its General Manager,
East Coast Railway, Rail Sadan, Chandrasekharpur,
Bhubaneswar, Dist- Khurda.
2. R.R.C. represented through Chief Personal Officer, East
Coast Railway, Bhubaneswar, Dist- Khurda.
3. Dhanurdhar Behera, Aged about 26 years, S/o- Balaram
Behera, Provisional Appointment as TM-IV on dt.
04.11.2015 under SSE/P.Way/Dhenkanal (DKNL), Office
Order No. Engg/188/2015, Ref :- RRC/ECOR/BBS'S Letter
No. ECOR/RRC/D/2012 DTD. 07.10.2015 and
ECOR/RRC/D/2013 dtd. 08.10.2015.
4. Satyanarayan Sahu, Aged about 33 years, S/o- Golak Bihari
Sahu, Provisional Appointment as TM-IV on dt. 09.11.2015
under SSE/P.Way/Gorakhnath (GKRN), Jagatsinghpur by
Office Order No. Engg/217/2015, Ref :- RRC/ECOR/BBS'S
Letter No. ECOR/RRC/D/2012 DTD. 07.10.2015 and
ECOR/RRC/D/2013 dtd. 08.10.2015.
5. Anil Kumar Biswal, Aged about 34 years, S/o- Bhaskar
Chandra Biswal, Provisional Appointment as TM-IV on dt.
03.11.2015 under SSE/P.Way/Baranga (BRAG), Dist-
Khurda by Office Order No. Engg/217/2015, Ref :-
RRC/ECOR/BBS'S Letter No. ECOR/RRC/D/2012 DTD.
07.10.2015 and ECOR/RRC/D/2013 dtd. 08.10.2015.
6. Singhdasmita Barik, aged about 29 years, S/o Pratap
Kumar Barik, provisional appointment as TM-IV on dt.
04.11.2015 under SSE/P.Way/Baranga (BRAG), Dist
Khurda by Office order No. Engg/187/2015, Ref:
RRC/ECOR/BBS'S Letter No. ECOR/RRC/D/2012 DTD.
07.10.2015 AND ECOR/RRC/D/2013 dtd. 08.10.2013.
7. Santosh Kumar Baral, aged about 28 years, S/o Radhanth
Baral, Provisional Appointment as TM IV on dt. 02.11.2015
under SSE/P.Way/Baranga (BRAG), Dist Khurda by Office
Order No. Engg/169/2015 Ref:- RRC/ECOR/BBS'S Letter
No. ECOR/RRC/D/2012/ DTC 07.10.2015 and
ECOR/RRC/D/2013 dtd. 08.10.2015.
8. Manmohan Pradhan, S.o Laxman Pradhan, PF No.
53120152422, Working as Goods Guard Under SMR (KUR),
Khurda Road, East Coast Railway, Dist Khurda, Odisha -
752050.
9. Manoj Kumar Murmu, S/o Dularam Murmu, PF No.
53120152452, Working as Goods Guard under SMR (BHC),
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O.A. No. 199 of 2019
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Bhadrak, East Coast Railway, Dist Bhadrak, Odisha -
756100.
10. Prasanta Kumar Patra, S/o Akrura Charan Patra, PF NO.
5312015240, Working as Goods Guard under SMR (PRDP),
Paradeep, East Coast Railway, Dist Jagatsinghpur, Odisha -
754142.
11. Raj Narayan Sarangi, S/o Rajendra Kumar Sarangi, PF
No. 53120152421, Working as Goods Guard under SMR
(TLHR), Talcher Haridaspur, East Coast Railway, Dist
Talcher, Odisha - 759100.
12. Bibhuti Bhusan Mallick, S/o Kartikeswar Mallick, PF No.
53120152419, Working as Goods Guard under SMR (BHC),
Bhadrak, East Coast Railway, Dist Bhadrak, Odisha -
756100.
13. Soumya Ranjan Mangaraj, S/o Hare Krushna Mangaraj,
PF No. 53120152427, Working as Goods Guard under SMR
(KR), Khurda Road, East Coast Railway, Dist Khurda,
Odisha - 752050.
14. Md. Adil Kumar, S.o Md. Kamruddin, PF No.
53120152329, Working as Goods Guard under SMR (KPR),
Jakhapura, East Coast Railway, Dist Jajpur, Odisha -
755001.
15. Kishore Ch. Swain, S/o Pursatam Swain, PF No.
53120152637, Working as Goods Guard under SMR
(KDJR),M Kendujhar, East Coast Railway, Dist Kendujhar,
Odisha - 758035.
16. Manorajan Barik, S/o Subash Ch. Barik, PF No.
53120152369, Working as Goods Guard under MSR
(JKPR), Jakhapura, East Coast Railway, Dist Jajpur, Odisha -
755001.
17. Debasis Sahoo, S/o Sarbeswar Sahoo, PF No.
53120152482, Working as Goods Guard under SMR
(TLHR), Talcher Haridsaspur, East Coast Railway, Dist
Talcher, Odisha - 759100.
18. Saroj Sahoo, S/o Bishnu Charan Sahoo, PF No.
53120152372, Working as Goods, Guard under SMR
(JKPR), Jakhapura, East Coast Railway, Dist Jajpur, Odisha -
755001.
19. Ranja Kumar Das, S/o Biswanath Das, PF No.
53120152525, Working as Goods Guard under SMR (BHC),
Bhadrak East Coast Railway, Dist Bhadrak, Odisha -=
756100.
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20. Kantarao Dokkara, S/o Balakrishna, PF NO.
53120152456, working as Goods Guard under SMR (PSA),
Plasha, East Coast Railway, Dist Srikakulam, Andhra
Pradesh - 532221.
21. Dibyalochan Pradhan, S/o Digambar Pradhan, PF No.
53120152442, Working as Goods Guard under SMR
(ANGL), Angul, East Coast Railway, Dist Angul, Odisha -
759122.
22. Bikash Kumar Das, S/o Ajay Kumar Das, PF No.
53120152379, Working as Goods Guard under SMR
(ANGL), Anugul, East Coast Railway, Dist Anugul, Odisha -
759122.
23. Manas Kumar Samal, S/o Biswanath Samal, PF No.
53120152396, Working as Goods Guard under SMR
(PRDP) Paradeep, East Coast Railway, Dist Jagatsinghpur,
Odisha - 754142.
24. Dheeraj Kumar, S/o Jag Bihari Choudhry, PF No.
53120152405, Working as Goods Guard under SMR
(KDJR), Kendujhar, East Coast Railway, Dist Kendujhar,
Odisha 758035.
25. Anupas Das, S/o Susil Kumar Das, PF No. 53120152519,
Working as Goods Guard under SMR (KUR), Khurda Road,
East Coast Railway, Dist Khurda, Odisha - 752050.
26. Bijay Kumar Parida, S/o Babji Charan Parida PF NO.
53120152601, Working as Goods Guard under MSR
(TLHR), Talcher Haridaspur, East Coast Railway, Dist
Talcher, Odisha - 759100.
27. Bikash Kumar Nayak, S/o Shankar Shan Nayak, PF No.
53120152539, Working as Goods Guard under SMR
(BHDC), Bhadrak, East Coast Railway, Dist Bhadrak, Odisha
- 756100.
28. Dipak Kumar Behera, S/o iswar Ch. Behera, PF No.
53120152504, Working as Goods Guard under SMR (KUR),
Khurda Road East Coast Railway, Dist Khurda, Odisha -
752050.
29. Kishore Kumar Behera, S/o Kedarnath Behera, PF No.
53120152451, Working as Goods Guard under SMR (KUR),
Khurda Road, East Coast Railway, Dist Khurda, Odisha -
752050.
30. Murarai Nandan, S/o Kamlesh Singh, PF No.
53120152597, Working as Goods Guard under SMR
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O.A. No. 199 of 2019
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(TLHR), Talcher Haridaspur, East Coast Railway, Dist
Talcher, Odisha - 759100.
31. Om Prakash Sharma, S/o Baburam Sharma, PF No.
53120152557, Working as Goods Guard under SMR
(ANGL), Angul, East Coast Railway, Dist Anugul, Odisha -
759122.
32. Vijay Kumar Chaudhary, S/o Kishan Chaudhury, PF No.
53120152320,Working as Goods Guard under SMR
(PRDP), Paradeep, East Coast Railway, Dist Jagatsinghpur,
Odisha - 754142.
......Respondents
For the applicant : Mr P.K.Panda, counsel.
For the respondents : Ms. K.Patnaik, counsel.
O R D E R
Pramod Kumar Das, A.M. The applicants (20 in nos.), challenging the actions/decisions of the Respondent No. 1 and 2 by way of allowing the temporary/provisionally appointed employees to appear in the GDCE Examination/Notification dated 02.11.2015 although the advertisement for said examination was only notified for regular (permanent) employees have filed this OA praying for following reliefs:
"(i) The OA be admitted.
(ii) The panel list prepared under Annexure - 4 series and called for document verification for goods guards post and selected thereafter selection under so far as it relates to Respondent No. 3 to 7 be quashed as the same contains the ineligible candidates and in the alternative the Respondent No. 1 and 2 be directed to make a fresh scrutiny of candidates strictly as per Annexure 1 confining it strictly to the permanent employees and hold fresh examination for GDCE within stipulated time.6 O.A. No. 199 of 2019 7
(iii) Pass order/orders declaring the entire process for selection to the post of Goods Guards vide Annexure 1 is bad, illegal and arbitrary and as such is completely vitiated.
(iv) Pass order/orders directing the Respondents to dispose of the Representation (Annexure A/9).
(v) And pass any other order/orders, direction/directions which would afford complete relief to the applicants be passed by way of selecting them for the posts of goods guards."
2. The short fact of the case as inter alia averred by the applicants in the OA is that they were working as TM-IV Khalasis and gatekeeper in engineering and other department in East Coast Railway under Respondent No. 1 for 6 years. The Respondent No. 1 vide advertisement dated 02.11.2015 (A/1)called for application for examination of GDCE for appointment to Goods Guards from eligible serving regular employees for 349 posts and the last date for submission of application was 01.12.2015. It is submitted that the applicants and several other employees applied for the same. It is submitted that in the said advertisement it was mentioned that only serving regular employees are eligible for applying but the respondents allowed many candidates who joined in their posts after 02.11.2015 to appear in the examination. The applicants have cited joining date of Respondent No. 3 who was appointed on 04.11.2015, Respondent No. 4 on 09.11.2015, Respondent No. 5 on 03.11.2015, Respondent No. 6 on 04.11.2015 and Respondent No. 7 on 02.11.2015. It is submitted that Respondent No. 3 to 7 appointments were only 7 O.A. No. 199 of 2019 8 provisional/temporary and had not been made permanent yet but they were allowed to appear in the examination and subsequently their names find in the empanelled list. It is submitted that similarly many such candidates who have been appointed in between the date of advertisement and last date of application have been allowed to appear in the examination, thus causing prejudice to them. Therefore they pray for allowing this OA.
3. The respondents have filed counter inter alia stating that applicants are unsuccessful candidates who have participated in the selection process thus as per decision in the case of Manish Kumar Shahi vrs State of Bihar, (2010) 12 SCC 576, and Amlana Jyoti Borooah vrs State of Assam, (2009) 3 SCC 227, they are estopped to challenge the same. It is further submitted that the last date of application is cut off date as per judgment of Hon'ble Apex Court in the case of Shri Rakesh Kumar Sharma vrs Govt of NCT of Delhi, (Civil Appeal No. 6116/2013), therefore the private respondents and others who had joined after date of notification but before last date of application were considered and the date of appointment is immaterial. Therefore they prayed for dismissal of the OA.
4. The applicant have filed rejoinder and the respondents have filed written notes of submission reiterating the stand taken by them earlier. 8 O.A. No. 199 of 2019 9
5. Even though notice was issued to the private respondents and opportunities being given none appeared on their behalf or filed their reply.
6. Heard both sides and perused the records.
7. The respondents have cited decision of Hon'ble Apex Court in the case of Manish Kumar Shahi vrs State of Bihar (2010) 12 SCC 576 and Amlana Jyoti Borooah vrs State of Assam (2009) 3 SCC 227 stating that the applicants having appeared in the examination are estopped from challenging the recruitment process. Though it is a well settled law held by cantena of decisions that applicant having partaken in selection process cannot challenge it due to mere non selection but it has been also held by Hon'ble Apex Court in the case of Meeta Sahai vrs State of Bihar that in case where the applicant are alleging misconstruction of statutory rules and discrimination arising therefrom, therefore they can challenge the same. The relevant portion of the judgment is extracted below:
"17. It is well settled that the principle of estoppel prevents a candidatefrom challenging the selection process after having failed in it as reiterated by this Court in a plethora of judgements including Manish KumarShahi v. State of Bihar, observing as follows:
"16. We also agree with the High Court that after having taken partin the process of selection knowing fully well that more than 19%marks have been earmarked for viva voce test, the appellant is notentitled to challenge the criteria or process of selection. Surely, if theappellant's name had appeared in the merit list, he 9 O.A. No. 199 of 2019 10 would not haveeven dreamed of challenging the selection. The appellant invokedjurisdiction of the High Court under Article 226 of the Constitution ofIndia only after he found that his name does not figure in the meritlist prepared by the Commission. This conduct of the appellantclearly disentitles him from questioning the selection and the HighCourt did not commit any error by refusing to entertain the writpetition. The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse whereinevery disgruntled candidate, having failed the selection, challenges it in thehope of getting a second chance."
18. However, we must differentiate from this principle insofar as thecandidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where acandidate alleges misconstruction of statutory rules and discriminatingconsequences arising therefrom, the same cannot be condoned merelybecause a candidate has partaken in it. The constitutional scheme issacrosanct and its violation in any manner is impermissible. In fact, acandidate may not have locus to assail the incurable illegality or derogationof the provisions of the Constitution, unless he/she participates in the selection process."
8. In view of the above, this Tribunal finds that the applicants having raised the ground of whether the action of the respondents in allowing candidates who had joined the service after date of notification is correct or not and is violation of statutory rules and thus discriminatory, the applicants are hence not estopped in challenging the same.
9. The respondents in their written notes of submission have relied on few documents including Railway Board letter dated 02.08.2018 (RBE 10 O.A. No. 199 of 2019 11 112/2018), RBE No. 112/2023 and Railway Recruitment Boards Centralized Employment Notice No. 03/2015 dated 26.12.2015.
10. Now coming to the core issue of this case. It is the case of the applicants that since the date of notification was 02.11.2015 wherein it is mentioned that only serving regular employees are eligible and also where it is mentioned that cut off date for calculating the age limit is date of notification, there cannot be any other date for determining the eligibility and thus the action of the respondents in allowing candidates who had joined after date of notification is illegal. The respondent on the other hand relying on the judgment of Hon'ble Apex Court in the case of Shri Rakesh Kumar Sharma vrs Govt of NCT of Delhi (Civil Appeal No. 6116/2013) contended that last date of application is the cut of date for determining the eligibility and accordingly their action is as per law.
11. Learned counsel for the applicant on the other hand relying on RBE No. 117/2006 dated 22.08.2006 submitted that Board had issued instruction on the above subject to all the General Mangers and clarified that the cut off date for determining the eligibility of staff in selections/LDCEs for promotion within and to Gr C should be date of issue of notification.
12. It is notable that in the notification dated 02.11.2015 (A/1), it was specifically mentioned that the date for calculating the age shall be 11 O.A. No. 199 of 2019 12 reckoned as on the date of notification but as far as eligibility to apply it is specifically stated that "applications are invited from eligible serving regular employees". No cut off date for consideration of eligibility of serving regular employees have been made in the advertisement. The RBE No. 117/2006 relied by learned counsel for the applicant does not help since no specific date has been mentioned in the advertisement.
13. It is well settled law that in the absence of any specific date regarding eligibility, the last date for submission of application should be taken as such last date for consideration eligibility. Hon'ble Apex Court in M.V Nair v. Union of India 1993 2 SCC 429 held as under:
"9. It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date."
14. In Harpal Kaur Chahal v. Director, Punjab Instructions 1995 Supp 4 SCC 706 this Court held: (SCC p. 707, para 2) "2.... It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to the rules."
15. Hon'ble Apex Court in Rakesh Kumar Sharma (supra) has clearly held that:
11. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said va- cancy provided he fulfils the requisite qualification.12 O.A. No. 199 of 2019 13
16. Hon'ble Apex Court in Rekha Chaturvedi vrs University of Rajasthan 1993 Supp 3 SCC 168 has clearly held in para 10 that in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications.
17. Therefore in the absence of any stipulated date mentioned in the advertisement dated 02.11.2015 as regards eligibility of serving regular employees, the last date of receipt of application is to be treated as such date. Hence we do not find any illegality in the part of the respondents in rejecting the claim of the applicant warranting interference by this Tribunal.
18 The OA is accordingly dismissed. No costs.
(Rajnish Kumar Rai) (Pramod Kumar Das)
Member (Judl.) Member (Admn.)
csk
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