Central Administrative Tribunal - Jabalpur
Deepak Kumar Choudhary vs M/O Railways on 1 July, 2024
OA No. 1156 of 2018
Reserved
(On 17.04.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
JABALPUR BENCH
JABALPUR.
Dated: This Monday the 01st day of July 2024
Hon'ble Mr. Justice, Akhil Kumar Srivastava, Member (A)
Hon'ble Mr. Kumar Rajesh Chandra, Member (A)
Original Application No. 1156 of 2018
Deepak Kumar Choudhary, S/o Shri Bihari lal Choudhary, Aged
about 30 yesrs, R/o H.No 2489, Gali No 5, Near Badsah Halwai
Mandir, Gerighat Road, District Jabalpur (M.P.) 482 001.
. . .Applicant
By Adv: Shri M.N. Banerjee
VERSUS
1. Union of India, Through its General Manager, West Central
Railway, Indira Market, Jabalpur (M.Ρ.) 482 001.
2. The Chairman, Railway Recruitment Cell, West Central
Railway, RB-III/422, 1&2, Nehru Railway Coloney
Howbagh, Jabalpur, 482009 (Μ.Ρ).
3. The Divisional Railway Manager West Central Railway,
Jabalpur Division Jabalpur (M.P) 482001.
. . . Respondents
By Adv: Shri P.K. Chourasia
ORDER
By Akhil Kumar Srivastava, Member (J) The instant OA has been filed to direct the respondents to issue appointment order to the applicant on Group 'D' post under 1 OA No. 1156 of 2018 SC category with all consequential benefits, to issue any other order deemed fit by this Tribunal and to award cost.
2. The brief facts of the case are that respondents issued Employment Notice No. RRC/WCR/Group D/2/2012 for appointment on Group 'D' post. The applicant, being an eligible candidate, has submitted his application for appointment on Group 'D' post under ST quota. After scrutiny of application forms, the applicant was issued call letter to appear in the written test scheduled to be held on 18th November, 2013 by allotting Roll No. 208133498. The applicant has been declared successful in the written test and thereafter he has been called to appear for PET test scheduled to be held on 06.03.2014. In this test too, the applicant was decaled successful. Subsequently, the applicant was called for documents verification on 26.05.2014, but thereafter the applicant had not received any communication from the respondents despite making requests in this regard. The applicant, therefore, sought information under Right to Information Act, 2005, to which the applicant has been informed that he has obtained 59.39% marks and the last cut off selected candidate under OBC category was 59.25%. The applicant submits that the last selected candidate under SC category got less marks than 2 OA No. 1156 of 2018 the applicant, but in spite of that, the applicant has been deprived from appointment to a Group 'D' post.
3. The applicant further submits that the RRC even being a model recruitment agency have failed to appreciate the facts that the applicant after facing heavy competition have passed the written examination and physical efficiency test held for appointment in Group D post. However, the candidature of the applicant has not been considered and no reason till today has been assigned by the railways. Apart from it, no reasons have been cited to the applicant in writing or in oral which is unknown procedure and hence the same is arbitrary. The applicant being aggrieved by the aforesaid action of the respondents had preferred a detailed representation, but to no avail. Hence, he prays to allow his OA.
4. The respondents have filed their reply to the OA in which they have stated that the Railway Recruitment Cell WCR, Jabalpur has issued an employment Notice No. 02/2012 dated 22.07.2017 for recruitment to Group 'D' category. They further submit that the Railway Recruitment Cell WCR Jabalpur has issued Provisional Panel Part 1 dated 30.06.2014 and Part 2 dated 09.01.2015 and Part 3 dated 20.04.2017 of selected 3 OA No. 1156 of 2018 candidates against notification dated 02/2012. The applicant was given information under RTI Act by letter dated 16.03.2015 that due to typing error his marks is 59.39% whereas his actual marks are 59.35% and his rank was 3388. The cut of marks of SC candidates was 60.46 and rank was 2932.
5. The respondents have also stated that after publication of panel the applicant was aware that he has not been selected, however, he has neither preferred any representation nor approached this Tribunal within the period of limitation prescribed under Section 21 of the AT Act, 1985 and has only approached this Tribunal after 2 years on 05.12.2018, so this OA is hopelessly time barred. They further submitted that the Hon'ble Apex Court vide its order dated 01.03.2019 passed in MA Nos. 439-442/2019 in C.A. Nos. 11360-11363/2018 titled as Dinesh Kumar Kashyap & Ors. Vs South Central Railway & Ors. made it clear that benefit of the judgment dated 27.11.2018 of Dinesh Kumar Kashyap shall be available to those who had filed petitions before the Central Administrative Tribunal. The aforementioned order of Hon'ble Apex Court reads as under:
"Having heard learned counsel appearing for the applicants and upon perusal of the application(s) for directions, we clarify our judgment dated 27.11.2018 in Civil Appeal Nos. 11360-11363 of 2018 to the extent that the benefit of the said judgment shall be 4 OA No. 1156 of 2018 available to all those persons who had filed petition(s) before the Central Administrative Tribunal (CAT). "
6. The respondents state that Central Administrative Tribunal, Principal Bench, New Delhi vide its order dated 19.03.2019 in O.A. No. 819/2019 dismissed the O.A. on the sole ground that the applicants have filed O.A. after the date of pronouncement of the judgment in Dinesh Kumar Kashyap (supra). Further, one O.A. No. 607/2013 filed by Shri Shami Ahmad Ansari which is similar to this Original Application has been dismissed by this Hon'ble Tribunal vide order dated 10.10.2023 on the following grounds:
"5. We have heard the learned counsel for the parties and perused the pleadings and the documents placed on record. Also gone through the written submissions supplied by learned counsel for the applicant during the course of argument.
6. Having gone through the entire material placed before us, we find that the applicant has failed to establish his case. Since the marks secured by the applicant were less than the marks obtained by the last empanelled candidate under OBC category, he was kept in the list of 20% extra candidates where his name finds place at Sl. No. 18. Even the marks of the last selected candidate from the list of 20% extra candidate were higher than the applicant as he secured 52 marks in comparison to 51.67 marks obtained by the applicant. In any case, there are 10 more OBC candidates above the applicant, who are at Sl. No.08 to 17 in the waiting list. Therefore, action of the respondents not to offer appointment to the applicant does not call for any interference.
7. In the result, this Original Application is dismissed being devoid of any merit. No costs."5 OA No. 1156 of 2018
7. In O.A. No. 1031/2018 filed by one Smt. Priya Sahu which is identical to this Original Application has been dismissed by this Tribunal vide order dated 26.07.2023 on the following grounds:
"5. We have heard the learned counsel for both the sides and have gone through the pleadings and the documents annexed therewith.
6. In the present case, it can be seen that the applicant belongs to OBC category and after qualifying the written test and physical efficiency test, the applicant was sent to Railway Hospital for medical examination. The applicant was found unfit for B-1 and B-2 category and fit for C-1 category. The last candidate appeared for OBC post alongwith the applicant in the required medical category has secured 73.69% (normalised) marks in the written test and applicant has secured 70.63% (normalised) marks, therefore the applicant could not be selected for the said post.
7. In view of the discussions made hereinabove this Original Application lacks merit and is liable to be dismissed and is dismissed accordingly."
8. The respondents submitted that in view of the above the present OA is time barred and devoid of merit. As such the OA may be dismissed.
9. The applicant has filed this rejoinder reply in which he reiterates facts as in the OA.
10. Heard learned counsel for the parties and perused the pleadings and documents available on record.
11. The issue involved in this Original Application is no longer res integra. Recently, this Tribunal in bunch of OAs, i.e. OA No.12/2019 and other connected OAs has decided the issue 6 OA No. 1156 of 2018 regarding consideration of cases of the candidates placed under 20% extra replacement panel vide order dated 06.03.2024. Relying upon the judgment passed by the Hon'ble Apex Court in Dinesh Kumar Kashyap (supra), this Tribunal has observed as under:
"10. We have carefully perused the citations as submitted by learned counsel for the parties during the course of arguments. In the case of Dinesh Kumar Kashyap (Supra) the Hon'ble Apex Court has passed an order to the appellants therein only. However, subsequently, vide order dated 01.04.2019 passed in C.A. No.11360-11363 of 2018, the Hon'ble Apex Court has clarified that the benefits of said judgment shall be made available to all those persons who have filed O.A. before the CAT or before any other court prior to passing of judgment in the case of Dinesh Kumar Kashyap. The notification was issued in the year 2010 the applicants are also similarly situated and there is no bar on these applicants for consideration of their case, Hon'ble Apex Court has not restricted the consideration of the claim of the applicants. The applicants are seeking parity on the settled question of law to the other similarly situated persons who have been considered and the applicants can also be considered if the vacancies have remained unfilled due to non- joining of selected candidates and the said benefit of appointment can be extended in the case of the applicants.
11. This Bench in a catena of cases have followed the dictum of Hon'ble Apex Court in the case of Dinesh Kumar Kashyap (Supra) that has been affirmed by the Hon'ble High Court of M.P. and as such the issue involved in these O.A.s is no longer res-integra for further adjudication.
12. In view of the aforesaid, all these Original Applications are disposed of with the directions to the respondents to examine the vacancy position in the Employement notice No. 02/2010 dated 15.12.2010 and if the vacancies exists, consider the applicants for appointment to the post of Group 'D' under replacement quota as per RBE No 73/2008 dated 17.06.2008 (Annexure A/19) after receipt of Certified Copy of the order of this Tribunal and thereafter issue offer of appointment to the applicants who are declared suitable/fit for job."7 OA No. 1156 of 2018
12. In view of the fact that similar issue has already been decided by this Tribunal we dispose of this Original Application in similar term with the directions to the respondents to examine the vacancy position in the Employment notice No. 02/2010 dated 15.12.2010 and if the vacancy exists, consider the applicant for appointment to the post of Group 'D' under replacement quota as per RBE No 73/2008 dated 17.06.2008 after receipt of certified copy of this order and thereafter issue offer of appointment to the applicant who is declared suitable/fit for job. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Member (A) Member (J)
/Piyush/am
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