Central Administrative Tribunal - Allahabad
Vijendra Kumar Verma vs Union Of India on 9 December, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 09 DAY OF December, 2010) Honble Dr.K.B.S. Rajan, Member (J) Honble Mr. D.C. Lakha, Member (A) Original Application No. 301 of 2007 (U/S 19, Administrative Tribunal Act, 1985) 1. Vijendra Kumar Verma, S/o Late R.K.Verma, R/o A-507, Awas Vikas Colony, Hanspura, Naubasta, Kanpur. 2. Tilakraj Singh, S/o Shri Gaya Raj Singh, R/o 18-A, Colony No. 1, Subedarganj, Allahabad. 3. Somnath S/o late Mewa Lal R/o 140, Rajrooppur, Allahabad. 4. Krishna Prasad S/o Shri Ram Bhari R/o Village Khamilian, Post Auta, Tehsil Meja, P.S. Modha, Allahabad. 5. Rameshwar Singh S/o Shri Raghuvir Singh, R/o 487-A, Tajab Mill Colony, Kanpur. 6. Surendra Kumar S/o Shri Kanhaiya Lal R/o Block-C, 124/2, Govindnagar, Kanpur. 7. Mahesh Prasad, S/o Shri Munni Lal, R/o 484-C, Khushuroo Bagh, Railway Colony, Allahabad. All the applicants are working as Electric Cleaner under the Divisional Personnel Officer, North-Central Railway, Allahabad. Applicants Present for Applicants : Shri A. D. Singh, Advocate Shri P. Srivastava, Advocate. Versus 1. Union of India, through General Manager, North-Central Railway, Allahabad. 2. The Divisional Manager, North-Central Railway, Allahabad. 3. The Divisional Personnel Officer,North-Central Railway, Allahabad. Respondents Present for Respondents : Shri P. Mathur, Advocate Along with Original Application No. 386 of 2007 (U/S 19, Administrative Tribunal Act, 1985) Mohan Lal Yadav, S/o Shri Raja Ram, Resident of Village Unti, P.O. Bamni Hethar, District Allahabad. Applicant Present for Applicant : Shri P. Srivastava, Advocate. Versus 1. Union of India, through General Manager, North-Central Railway, Allahabad. 2. The Divisional Manager, North-Central Railway, Allahabad. 3. The Divisional Personnel Officer, North-Central Railway, Allahabad. Respondents Present for Respondents : Shri P. Mathur, Advocate O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) As the legal issue involved in both the above O.As is one and the same, the two O.As have been dealt with simultaneously and common order is passed. For the facts of the case, OA No. 301 of 2007 plays the pilot role. Minor difference between the two cases has been spelt out at the respective place when reference is made to OA No. 386/2007.
2. The applicants are working as Diesel/Electrical Cleaner. Even after many years of service no promotion has been granted to them. As per the Rule of promotion the person, who has completed 05 years of regular service after passing written examination as well as viva voce may be promoted as Assistant Diesel/Electric Driver in the Grade of Rs.3050-4500 (RSRP). All the applicants are eligible for promotion under the 50% promotional quota. Respondents, vide order dated 27.07.2002 declared the applicants eligible for promotion to the post of Assistant Diesel/Electric Driver Grade of Rs.3050-4590. Accordingly, the applicants were permitted to appear in the written examination on 24.08.2002. All the applicants appeared in the examination and passed. They were declared successful but could not be promoted and no reason was communicated by the respondents. Copy of the result of the examination is filed and marked as Annexure A-3. Since, the applicants could not be promoted, they had again appeared in the Examination in 2003. Respondents vide order dated 02.06.2003 declared the applicants passed and the applicants were called for viva voce. In the viva voce also they were declared qualified, Annexure A-4 refers.
3. Since the applicants were not promoted even after qualifying in the prescribed examination for the second time, they were compelled again to appear in the examination. Thereafter, Respondents vide letter dated 08.08.2005 declared the applicants eligible for appearing in the examination. While, issuing the aforesaid letter the respondents also wanted to know the service record of the applicants. Accordingly the office sent a report/recommendation that the applicants are eligible for promotion and no DAR proceeding is pending against the applicants since the time they have entered in Railway service. All the applicants appeared in viva voce but the result of viva voce was not declared. Ultimately, the respondents vide letter dated 18.01.2006 cancelled the written examination held on 09.07.2005. Cancellation of examination, according to the applicants, is totally arbitrary, discriminatory and without assigning any reason. As such, the letter dated 18.01.2006 is liable to be quashed. Though the vacancies are also available even then respondent no.1 did not give promotion to the applicants nor assigned any reason for non promotion. Other persons who were working in other branches of the respondents/ department have been promoted. Respondents are going to take fresh examination in accordance with new promotional policy and going to fill up the vacancies which were available at the time the applicants successfully completed the examination and were fully eligible. Respondents cannot fill up the old vacancies by framing new policy when the eligible candidates viz. the applicants are already available.
4. Posts of Assistant Diesel/Electric Driver in the Grade of Rs.3050-4590 (RSRP) which were vacant before issuing the letter of Railway Board dated 02.12.2005 have to be filled up under old rules which were in existence at the time the examination took place and the applicants appeared in the examination under the 50% quota. The exam cannot be cancelled on the ground as alleged by the respondents while issuing the impugned letter dated 02.02.2007.
5. By refuting the case of the applicant respondents have filed Counter Affidavit and submitted that the impugned order dated 18.01.2006, 02/08.02.2007 is self explanatory. Selection as initiated by the respondents was against the Railway Boards instructions as circulated by letter dated 02.12.2005. Initiation of fresh proceedings were very much warranted by issuance of a fresh notification dated 16.03.2007. Mistake committed by the respondents on its detection cannot be permitted to be perpetuated. The Railway Board had modified the instructions through a Printed Serial No.1216 of 2002 for filling up of the vacancies in the category of Diesel Assistant/Electric Assistant cadre which specifically contemplates and is required to be filled in terms of the extant procedure in the following terms:-
(i) 50% from against the volunteering Diesel/Electric Loco Fitters of Diesel/Electric Loco sheds with three years service failing which Diesel/Electric Loco Fitters with less than three years service but total service of six years and Diesel/electric Loco Group D staff of Diesel/Electric Loco sheds with a total service of six years in Diesel/Electric Loco sheds having the qualification of course completed Act Apprenticeship of Mechanical/electrical/Electronics Engineering trade or Matriculation with ITI as an additional preferable qualification with upper age limit of 35 years (40 years in the case of SC/ST).
(ii) 50% of the vacancies plus the shortfall, if any against (i) above by direct recruitment through the Railway Recruitment Boards.
6. It has also been decided that volunteering Group C and Group D technical staff of Workshops/Carriage and Wagon Deopts/Elec(TRD)/Elec (Gen) fulfilling the prescribed conditions of eligibility as per para (i) above from those seniority units/Trades/Cadres where surplus staff has been identified may also be considered in the selection for induction/promotion as Diesel/Electric Assistants.
7. By filing Rejoinder Affidavit counsel for the applicant stated that as per general law in case the post which was advertised before any amendment in the rules that will be governed by the old rules prevailing at the time notification of the vacancies for promotional post. Respondents-department without declaring the result, promoted 30 persons from that very list but not declared the result of the applicants and non declaration of the result of viva voce and psycho test is wholly illegal and arbitrary. It is submitted that so far as the instructions of the Railway Board is concerned which resulted into cancellation of the examination is totally illegal because the examination took place as per the rules of the respondents Department and the respondents Department promoted 30 persons from that very list ignoring the claim of the applicant thus adopting the policy of pick and chose ignoring the claim of the applicants.
8. The case in OA No. 386 of 2007 is analogous in facts with that of the other OA No. 301of 2007. The only difference is that whereas the above OA was filed apparently without the knowledge of the publication of order dated 16-03-2007 calling for the fresh examination, this OA has impugned that order as well. In both the cases, applicants who were cleaners appeared for selection and when they were awaiting the results, the very selection examination was cancelled. Hence this OA with the following relief(s):-
8(i) to quash the order dated 16.03.2007 by which the Respondents are going to conduct examination on 14.04.2007 for promotion to the post of Assistant Loco Pilot (Diesel/Electric) as well as the order dated18.01.2006 passed by the Respondent No.3 whereby he has cancelled the selection the Applicant for the post of Assistant Loco Pilot (Diesel/Electric) grade of 3050-4590 (RSRP) of which written examination was held on 09.07.2005 communicated to the Applicant vide letter dated 2/8.02.2007 (filed as Annexure No.A-1 with Compilation-I to this original Application) and direct the Respondents to declare the result of viva voce.
(ii) to direct the Respondents to promote the Applicant on the post of Assistant Loco Pilot (Diesel/Electric) in the grade of 3050-4590 (RSRP).
9. Arguments were heard and documents perused. Provision exists for career prospects of the cleaners by way of promotion to the post of Asst. Loco Pilot through certain examination. For, there is no other promotional avenue for such steam engine cleaners, in view of the switch over from Steam to diesel/electrical system.
10. The main contention of the respondents is that cancellation became inevitable due to the fact that there had been serious irregularities as has been ascertained, in that, ineligibles were allowed to participate in the selection examination. To substantiate, the respondents have made available the relevant noting wherein fourteen individuals were stated to have not fulfilled the eligibility conditions, either in respect of age or in respect of educational qualification or qualifying service criteria.
11. The counsel for the applicant submitted that if there were ineligibles, the appropriate action would have been only to cancel the candidature of such ineligible and en-mass cancellation of the examination for some sporadic irregularities is totally illegal.
12. In all there were 102 eligible candidates in respect of 112 vacancies in DSL side and 226 in Elec. Side. Only 71 participated, of which 14 were found to be ineligible. The question then is whether such candidates who were found eligible should also be bothered with writing another selection examination.
13. Cancellation of examination, be it conducted by the Special Agencies like the Recruitment Boards or by the departments itself is not uncommon. There is no straight jacket formula whereby the examinations are to be either cancelled or left in tact when certain irregularities are found committed. Judicial Review is certainly restricted in regard to cancellation of selection process. The question is whether the case of the applicant comes within the excepted category so that there could be judicial interference.
14. First we would like to refer to the cases where the Apex Court upheld the decision to cancel the selection process.
(i) All India Railway Recruitment Board v. K. Shyam Kumar,(2010) 6 SCC 614 where there was leakage of question paper in advance and some cases were such there was unfair means, consequent to which the examination was cancelled. When the same was challenged and at the High Court level the cancellation was held to unjustified, the Apex Court has held as under:-
16. We heard the learned counsel on either side at length and we have also gone through the extract of the vigilance report which appears in para 15 of the judgment of the High Court. The report indicated that 100 to 200 candidates were suspected to have obtained answers for the questions three hours before the examination through some middleman who had arranged the answers by accepting huge bribe. Apart from the serious allegations of impersonation in respect of 62 candidates it was stated on close scrutiny of the answer sheets, at least six candidates had certainly adopted unfair means to secure qualifying marks in the written test. The report says that investigation prima facie established leakage of question papers to a sizable number of candidates for the examination held on 23-11-2003. Further, it was also noticed that leakage of question paper was preplanned and widespread and the possibility of involvement of the Railway/RRB staff and also outsiders could not be ruled out and hence, recommended that the matter be referred to CBI.
Ultimately, the Apex Court has held as under:-
51. We, therefore, find no infirmity in the decision taken by the Board in conducting the second written test for those who have obtained minimum qualifying marks in the first written test rather than going ahead with the first written test which was tainted by large-scale irregularities and malpractices. The Board can now take further steps to regularise the results of the second test and the appointments of the selected candidates. Ordered accordingly. The appeals are accordingly allowed and the judgment of the High Court is set aside.
(ii) B. Ramanjini v. State of A.P.,(2002) 5 SCC 533 is yet another case of identical nature of mass copying and leakage of question papers and therein too, cancellation of examination was upheld. Here, the Apex Court has held that where the irregularity has occurred in one centre, candidates of other center need not suffer facing re-examination. The Apex Court has held as under:-
8. One cannot have an advantage either by copying or by having a foreknowledge of the question paper or otherwise. In such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The courts ought not to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other.
(iii) Where selection process was vitiated by procedural and other infirmities cancellation thereof was perfectly justified. Union of India vs Tarun K. Singh (2003) 11 SCC 768 refers.
15. In the instant case, the cancellation of the whole examination was ordered on the ground that 14 persons were found to have been ineligible, by way of being overaged, or lack of qualification or not having the requisite years of service. The names have been identified and by virtue of they having participated in the examination, others have not benefitted in any way. If a candidate does not fulfill the qualifications or age limit, his candidature alone is normally cancelled as is the practice by the Recruitment Agencies, which cancel such candidature even at the final stage of selection process. (See Public Service Commission v. Arvind Singh Chauhan,(2009) 9 SCC 135 wherein the Apex Court has held as under:-
23. On account of no record of any concession made on the part of the appellants and considering all the circumstances of the case, it is clear that the respondents were over aged on the specified cut-off dates which makes their application liable for cancellation.
16. Now where cancellation should not be resorted to has been reflected in the case of Union of India v. O. Chakradhar,(2002) 3 SCC 146 , wherein, the Apex Court has held as under :-
8. In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance." (Emphasis supplied) The Apex Court in the case of Union of India v. Rajesh P.U.,(2003) 7 SCC 285 , held as under:-
.....in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational. (Emphasis supplied)
17. The above decision has been cited in a very recent case of East Coast Railway v. Mahadev Appa Rao,(2010) 7 SCC 678 wherein, the question was whether without enquiry a selection process could be cancelled. The answer was in negative. A common aspect in the above aspect and the cases under consideration by the Tribunal is that in both, there was re-examination and the results of the examination were directed to be withheld. In the case of Appa Rao(supra), the authorities have been granted the discretion to cancel either of the examination, depending upon whether the first examination conducted suffered from serious irregularity. The Apex Court has in that case held as under:-
25. The next question then is whether the selection should be finalized on the basis of the test held earlier or the matter allowed to be re-examined by the authority in the context of the representation received by it. In our opinion the latter course would be more in tune with the demands of justice and fairness especially when a second test has been conducted in which all the in service candidates have appeared. The result of this examination/test has not, however, been declared so far apparently because of the pendency of these proceedings. If upon due and proper consideration of the representation received from the candidates who were unsuccessful in the first examination, the competent authority comes to the conclusion that the test earlier held suffered from any infirmity or did not give a fair opportunity to all the candidates, it shall be free to pass a fresh order cancelling the said examination after recording such a finding in which event the second test conducted under the directions of the Tribunal would become the basis for the selection process to be finalized in accordance with law. In case, however, the authority comes to the conclusion that the earlier test suffered from no procedural or other infirmity or did not cause any prejudice to any candidate, the second test/examination shall stand cancelled and the process of selection finalized on the basis of the test held earlier. The order passed by the High Court is to that extent modified and the present appeals disposed of leaving the parties to bear their own costs. In order to avoid any delay in the finalization of the process of appointments which have already been delayed, we direct that the competent authority shall pass an appropriate order on the subject expeditiously but not later than two months from today.
18. The instant cases squarely fall under the category available in the case of O. Chakradhar (supra) and Rajesh P.U. (supra). it is crystal clear that those who were ineligible could easily be separated from those who were found eligible. The ineligibles could easily be filtered out and results of the rest of the candidates who are fully eligible could be declared. From out of the eligible candidates those who had succeeded in the examination could well be considered for promotion while those who could not succeed, if have taken up the second examination and succeeded in that examination, they too could be considered for promotion. In respect of those who have participated only in the second examination and succeeded, the respondents could well considered their cases for promotion as it is observed that the numbers of vacancies were found to be much more than the participants in the examination. Substantial justice would thus be rendered to all by adopting the above procedure. There are as many as 57 cases in respect of which there is no justification in cancelling the examination. Their results have already been kept ready by the respondents. However, the results have been withheld under the orders of the Tribunal dated 13-04-2007.
Incidentally, it is to be emphasized that the applicants are not wrong in their contention that when the earlier vacancies were announced, the selection procedure that was then in extant only should have been adopted. The decision in the case of Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 is appropriate to be referred to here wherein, the Apex Court has held:
The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.
The above rule continues to hold the fort, as could be seen from various subsequent judgments, as for example, in P. Ganeshwar Rao & Ors. vs. State of Andhra Pradesh & Ors., AIR 1988 SC 2068, in which it was stated that the vacancies that occurred prior to the amendment of the Rules will have to be governed by the old Rules and not by the amended Rules. Again, in Arjun Singh Rathore v. B.N. Chaturvedi,(2007) 11 SCC 605 the apex Court has held as under: :
5. Mr. Calla, the learned Senior Counsel for the appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan v. R. Dayal wherein it had been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in Y.V. Rangaiah v. J. Sreenivasa Rao it was opined as under:
8. This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose.
6. The above legal position has not been seriously disputed by the learned counsel for Respondents 6 and 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly.
In State of Punjab v. Arun Kumar Aggarwal,(2007) 10 SCC 402 the Apex Court has held as under:-
32. He has also referred to B.L. Gupta v. MCD (1998) 9 SCC 223, 9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in N.T. Devin Katti v. Karnataka Public Service Commission. In that case after referring to the earlier decisions in Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed.
20. In view of the above, both the applications are allowed. While the impugned order relating to re-examination is not cancelled, impugned order cancelling the earlier examination held on 09-07-3005 is quashed and set aside. Respondents shall analyze the results of both the examinations held and prepare the final result and subject to other conditions for promotion being satisfied, they may consider such successful candidates for promotion to the post of Asst. Loco Pilots. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.
21. Costs easy.
(D.C. Lakha) (Dr. K.B.S. Rajan)
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