Central Administrative Tribunal - Cuttack
Rohita Khamari vs M/O Railways on 5 January, 2024
O.A No. 504 of 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 504 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. Rohita Kharmari, aged about 34 years, Son of Rama
Chandra Khamari, At Majhipali, PO Pada, PS Bijepur, Dist
Baragarh, now working as Track Maintainer in the Office of
DRM, East Coast Railway, Sambalpur Division, PO
Modipara, Sambalpur, PIN 768002.
......Applicant
VERSUS
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. DRM East Coast Railway, Sambalpur Division, PO Modipara
Sambalpur, Odisha PIN 768002.
4. Uttam Kumar Biswal, Station Manger, Baghbahra Railway
Station, aT/PO Bagbahra, Dist Mahasamund, State
Chhatisgarh PIN 493449.
5. Madhusudan Sharma Station Master, Dumuriput Railway
Station, At PO Dumuriput, Dist Koraput, State Odisha PIN
764021.
6. Tapobanta Sahu, Station Manager, Saragipalli Railway
Station, At/PO Saragipali, Dist Angul, State Odisha PIN
759127.
7. Mukesh Kumar Goods Guard, Sambalpur Railway Station,
At/PO Khetrajpur, Dist Sambalpur, State Odisha PIN
768003.
......Respondents
O.A No. 504 of 2019
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For the applicant : Mr P.K.Panda, counsel.
For the respondents : Mr. B. Samantaray, counsel.
O R D E R
Pramod Kumar Das, A.M. The applicant challenging the actions/decisions of the Respondent No. 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) Admit the original application and after hearing from the parties may quash/set aside the order dated 25.04.2019 and direct the concerned respondents to enlisted the name of the applicant in the 6th panel list for appointment to the post of ASM and Goods Guard in pursuant to the advertisement vide Annexure A/1 series.
And/or pass an order(s)/direction(s) as this Hon'ble Tribunal deem fit and proper."
2. The short fact of the case as inter alia averred by the applicant in the OA is that he while working as Tack Maintainer at Sambalpur Divison Respondent No. 1 vide advertisement dated 02.11.2015 and 06.07.2015 (A/1)called for application for examination of GDCE for appointment to Goods Guards from eligible serving regular employees and the last date for submission of application was 01.12.2015. It is submitted that the applicant and several other employees applied for the same. It is O.A No. 504 of 2019 3 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 which he had obtained through RTI dated 01.06.2017 (A/4). 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. It is submitted that the respondents had committed blunder while calculating the mark of the applicant and if it had been done correctly he could have scored 61.33% instead of 56.63% and cited the case of one Jhasketan Pradhan who was awarded normalized score and his name find place in provisional list. It is submitted that he had filed OA No. 179/2019 which was disposed of vide order dated 18.03.2019 directing the respondents to dispose of his representation. It is submitted that Respondent No. 2 vide order dated 25.04.2019 rejected his claim. Hence the OA.
3. The respondents have filed counter inter alia stating that applicant 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 O.A No. 504 of 2019 4 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. The respondents submitted that teh marks were correctly calculated and the applicant had scored only 56.63 mark out of 100 in the written test and 20.93% out of 30 in the aptitude test, accordingly the mark secured by the applicant was 60.57% but the mark scored by last candidate in OBC community was 68.204%. 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.
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 O.A No. 504 of 2019 5 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 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 O.A No. 504 of 2019 6 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 112/2018), RBE No. 112/2023 and Railway Recruitment Boards Centralized Employment Notice No. 03/2015 dated 26.12.2015.
10. As regards to submission of the applicant that the respondents have committed blunder in calculating the marks scored by him, it is seen from records that the answer papers were OMR designed and after the computer evaluation the raw score of 61.67% was awarded to him which after normalization was equated to 56.63%. The same principle has been applied uniformly to all the candidates. It is also seen that the last candidate in OBC community selected for the post of ASM had secured 68.24 marks and for the post of Goods Guard it was 63.58 marks. Therefore the said contention has no merit. Now coming to the core issue O.A No. 504 of 2019 7 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 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 O.A No. 504 of 2019 8 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 of 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.
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 O.A No. 504 of 2019 9 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 to eligibility of serving regular employees, the last date of receiving application is to be treated as such date. Hence we do not find any illegality on 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