Central Administrative Tribunal - Allahabad
Shiv Bahadur Verma vs Railway Recruitment Cell on 15 May, 2026
Reserved on 06.05.2026 AFR
Central Administrative Tribunal, Allahabad Bench, Allahabad
th
This the 15 of May, 2026
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 831 of 2013
1. Shiv Bahadur Verma, Roll No. 10748883 S/o Shri Mata Sharan
Verma R/o C/o Shri Nath Patel, 144/23, Purana Allahpur, Allahabad,
District Allahabad
2. Vijay Kumar Yadav, Roll No. 10719499 S/o Shri Ram Jeet Yadav
R/o Village Katai Tikar, Post Bhatparani, Police Station Bhatparani,
Deoria, District Deoria.
3. Radhy Shyam Yadav, Roll No. 10700749 S/o Shri Raj Bahadur
Yadav R/o Village Narhan Post, Bhorroh, Police Station Gola,
Gorakhpur, District Gorakhpur
4. Kanchan Kumar, Roll No. 10734495S/o Shri Kedar Mahto R/o
Village Bilouri Post, Bilouri, Police Station Lakhisarai, District
Lakhisarai, (Bihar)
5. Rabindra Prasad, Roll No. 10746326S/o Shri Chandeshwari Prasad
R/o Village Mirzapur Post, Changeri, Police Station Barahat, Banka,
District Banka, (Bihar)
6. Raja Ram Singh, Roll No. 10715836S/o Shri Bindeshwar
SinghR/o Village Yogia Post Kamlawadi, Police Station Ladania,
Madhubani, District Madhubani, (Bihar)
7. Sanjay Kumar, Roll No. 10715550S/o Shri Binda Singh R/o
Village Rampur Mahesh Post, Parauna, Police Station Taraiyan,
Chhapra, District Chhapra, (Bihar)
8. Mukesh Kumar, Roll No. 10728870S/o Shri Kaleshwar Gupta R/o
C/o Ram Vilas Das Village & Post Ajhour Police Station
RITU RAJ
Nimachandpura, Begusarai District Begusarai, (Bihar)
SINGH
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9. Veerendra Kumar Rai, Roll No. 10730372S/o Shri Ram Adhar
RaiR/o Village Khadwal Post Mahna, Police Station Dildar Nagar,
Ghazipur, District Ghazipur,
10. Binay Kumar Das, Roll No. 10736169S/o Shri Baldeo DasR/o
Village Chhota Merkhi Post Kasathi, Police Station Madhupur,
Deoghar, District Deoghar, (Jharkhand)
11. Naween Kumar Sah, Roll No. 10733845S/o Shri Jagdish SahR/o
C/o Jagdish Narayan Sahu Village Kapuri Dwal Lohallaganj Post
Lalbagh, Police Station Bahadurpur, Darbhanga, District Darbhanga,
(Bihar)
12. Pradeep Kumar, Roll No. 10761784S/o Shri Indra Deo SahR/o
Village Manjhaun (Sangat) Post Manjhaul, Police Station Cheriya
Bariyarpur, Begusarai, District Begusarai, (Bihar)
13. Raushan Raj, Roll No. 10748454S/o Shri Vinay Kumar
VermaR/o Village Pathrahi Tola Post Jhanjharpur R.S. (Near Old
Registry Office) Police Station Jhanjharpur, Madhubani, District
Madhubani (Bihar)
14. Maneger Sharma, Roll No. 10723143S/o Shri Samarth
SharmaR/o Makan No. 283/63ka/21/5, Premwati Nagar,
Harchandpur Garhi Kanauria Post Office Manaknagar, Police Station
Alambagh, Lucknow, District Lucknow.
15. Arjun Yadav, Roll No. 10751741S/o Shri Gulab YadavR/o
Village Manu Barwa Post Markara, Police Station Bhaluwani,
Deoria, District Deoria
16. Awadhesh Singh Yadav, Roll No. 10759393S/o Shri Haridwar
Singh YadavR/o Village Todarpur Post Gummna, Police Station
Jangipur, Ghazipur, District Ghazipur,
17. Hari Prasad, Roll No. 10760026S/o Shri Ram KrishnaR/o Village
Kataun Post Unchgaon Sani,Police Station Bighapur, Unnao, District
RITU RAJ Unnao
SINGH
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18. Arun Kumar, Roll No. 10721151S/o Late Baso PaswanR/o
Village Chandwari Post Mokama,Police Station Mokama, Patna
District Patna (Bihar)
19. Chandrika Prasad, Roll No. 10749189S/o Late Balaee RamR/o
Village Ranipur Post Sathiaon, Police Station Mubarakpur,
Azamgarh, District Azamgarh
20. Ajeet Kumar Sah, Roll No. 10727037S/o Shri Ram Ayodhya Sah,
R/o Village Semariya Post Revalganj, Police Station Revalganj,
Saran District Saran (Bihar)
21. Sudarshan Baudh, Roll No. 10762728S/o Shri Kalkatti RamR/o
Village & Post Beta Varkalan Police Station Jamania, Ghazipur,
District Ghazipur.
22. Ram Bharose, Roll No. 10745619S/o Shri Ganga RamR/o
Village Chhivalaha Post Chhivalaha, Police Station Sareni, Rae
Bareli District Rae Bareli.
23.Shiv Hari Kushvaha, Roll No. 10756404S/o Shri Rajendra
KushavahaR/o Village & Post Jaddu ParasianPolice Station
Madanpur, Deoria, District Deoria
24. Santosh Kumar Yadav, Roll No. 10733260S/o Shri Brijbhan
YadavR/o Village Ibrahimpur Post Vind Mathiya,Police Station
Mubarakpur, Azamgarh, District Azamgarh.
25. Ravi Kant Gupta, Roll No 10722889S/o Shri Nirmal Kumar
GuptaR/o Village Piro Post Piro, Police Station Piro, Bhojpur,
District Bhojpur (Bihar)
26. Vikram Singh, Roll No. 10704577S/o Shri Ramesh SinghR/o
Mohalla Dharamnagar, (Near Ghar Sansar Provision Store) Bharauli
Road, Police Station Dehat Kotwali, Bhind District Bhind (M.P.)
RITU RAJ
SINGH
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27. Sandeep Kumar Sharma Roll No. 10701946 S/o Shri Babban
SharmaR/o Village Samsuddinpur, Post Revalganj, Police Station
Revalganj, Saran, District Saran (Bihar)
28. Raju Roll No. 10734520S/o Shri ShatrohanR/o Village Bhanpur,
Post Babupur, Police Station Rampur Kalan, Sitapur, District Sitapur
29. Amar Nath Bind, Roll No. 10720462S/o Shri Shambhu NathR/o
Village Semari Charanha Post Semari Kachchawan, Police Station
Kachchawan, Mirzapur, District Mirzapur,
30.Rang Bahadur, Roll No. 10712560S/o Shri Santosh KumarR/o
Village Kaithawal, Post Jagatpur, Police Station Utaraon, Allahabad,
District Allahabad.
31. Sunil Kumar, Roll No. 10711678S/o Shri Dular Chandra
PrasadR/o Village Nokha Station Road, Near PN Bank Police Station
Nokha, RohtasDistrict Rohtas (Bihar)
32. Kamlesh Kumar, Roll No. 10717704S/o Shri Anant LalR/o
Village Shilpi, Post Risul, Sonebhadra, District Sonebhadra.
33. Bulet Chaudhary, Roll No. 10728923S/o Natthu ChaudharyR/o
Village Bagahi, Mushari Tola,Police Station Bairia, Paschimi
Champaran, Betia, District Betia (Bihar)
34.Rajni Kant Singh, Roll No. 10753209S/o Rama Kant SinghR/o
Village & Post Dedhgawan, Police Station Sohwal, Ghazipur,
District Ghazipur
........... APPLICANTS
By Advocate: Shri Vinod Kumar and Shri Shiv Mangal Prajapati
Versus
1. The Union of India through the Secretary, Ministry of Railway,
Government of India, New Delhi.
2. The General Manager, North Eastern Railway, Gorakhpur, District
Gorakhpur.
RITU RAJ
SINGH
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3. The Railway Recruitment Cell, Through its Chairman / Secretary,
North Eastern Railway (NER) Gorakhpur, District Gorakhpur.
4. The Deputy Personnel Officer / Railway Recruitment Cell, North
Eastern Railway (NER) Gorakhpur.
5. The Assistant Personnel Officer, Railway Recruitment Cell, CCM,
Annex Building, Railway Board, No 14, North Eastern Railway
(NER) Gorakhpur.
..........RESPONDENTS
By Advocate: Shri Manoj Kumar Sharma
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (Judicial) Shri Vinod Kumar and Shri Shiv Mangal Prajapati, learned counsel for the applicants and Shri Manoj Kumar Sharma, learned counsel for the respondents, were present at the time of hearing.
2. The present original application has been filed seeking following reliefs:
"(i) An order or direction, to set-aside the part of the impugned order dated 10/4/2013, passed by the Respondent No 4, marked as Annexure -1, to the compilation - I to this application.
(ii)An order or direction, to declare the Remaining Result / Final Selection List of Group "D" Posts held in pursuance of the Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007.
(iii) An order or direction, to the Respondent No 1, for posting the candidates from the waiting list for the unfilled vacancies in pursuance of the Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007
(iv) An order or direction, directing the Respondents, to appoint the applicants on the vacant seats of Group "D" Posts in view of the written examination result/selection list dated 13/11/2011, published in pursuance of the Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007 RITU RAJ SINGH 6
(v) Issue any other, order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, if any may also be granted.
(vi) Award cost of the applicants."
3. The instant original application has been filed by the applicants challenging the order(s) dated 10.04.2013 passed by the respondent no 4 by way of which the candidature of the applicants was rejected citing the ground that since their merit was lower than that of the last selected candidate in the selection process conducted on the basis of the Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007 in the North Eastern Railway, they cannot be placed in the replacement panel and thus cannot be issued offer of appointment at that stage. However, it was recorded in the order that whenever there shall be a demand from the Division / Unit for posting in place of candidates who did not join or against those who were absent / medically unfit or impersonation sustained, their case according to their merit position shall be considered.
The brief facts of the case are that vide Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007, applications were invited for appointment on Group D Posts in North Eastern Railways to which the applicants applied. The applicants appeared in the physical eligibility test followed by the written examination and subsequent stage of medical examination and document verification. The applicants have contended that despite successfully clearing all the stages of the examination, they have not been issued offer of appointment and instead allege that by way of the illegal impugned order dated 10.04.2013, they have been denied appointment. Several illegalities and irregularities are alleged to have been committed at the end of the respondents as the applicants have contended that the respondents have changed the terms and conditions of the advertisement midway through the selection process which is not permissible according to law. Allegation has also been made that the entire selection process has been arbitrarily carried out and RITU RAJ SINGH furthermore the respondents have reduced the number of vacancies 7 midway through the selection process which has inflicted irreparable loss and injury to several candidates and the same is also not permissible according to law. The applicants have also contended that upon non-issuance of the results, the applicants have approached the competent authority of the respondents and got assurance of their selection but no selection has been made.
The applicants have alleged that their case is supported by several case laws and judgments pronounced by different Courts across the country including the Apex Court and thus as their main relief, have prayed for the quashing of the order dated 10.04.2013 by way of directing the respondents to declare the remaining result / final select list of Group "D" posts held in pursuance of the Advertisement dated 06.12.2007. Further direction has been sought to the respondent no 1 for posting the candidates from the waiting list for the unfilled vacancies in pursuance of the aforesaid advertisement and also to direct the respondents to grant appointment to the applicants on the vacant seats of Group D posts in view of the result of the written examination published vide list dated 13.11.2011 in the aforesaid advertisement.
Respondents have filed counter against the OA wherein it has been stated that several posts of Group "D" category were notified vide Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007 in the North Eastern Railway and all the stages of the selection process viz., the physical eligibility test, written test, medical test and document verification have been conducted and carried out in accordance with extant rules and statutory provisions governing the subject matter. The applicants had successfully cleared the various stages of the examination / selection process but owing to the fact that their merit was lower than the merit of the last selected candidate which was mentioned in the select list issued by the respondents, the applicants were not granted appointment. There is no error in the way the entire selection process was carried out and by way of this misconceived OA, the applicants are agitating unreasonable claims. The RITU RAJ respondents have also contended that no terms and conditions of the SINGH 8 advertisement were changed during midway of the selection process and the exercise of reducing / surrendering the vacancies has been carried out after obtaining the approval of the competent authority and as per the stipulations enumerated in the advertisement itself. Respondents have further contended that the life of the selection panel against which the applicants claim selection or appointment has already ended and no relief is liable to be granted at this stage. Thus, the respondents have contended that there is no illegality in the impugned order.
4. Heard learned counsel for the parties.
5. Disclosing a brief history of the case, learned counsel for the applicants submitted that the applicants had applied for Group D posts advertised vide Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007 in the North Eastern Railway. After qualifying the physical eligibility test, they were permitted to appear in the written examination held on 16.02.2011. On the basis of the written examination, a total of 5363 candidates were declared successful against the 4549 advertised posts. Subsequently, call letters were issued to the successful candidates to appear before the respondents for verifications of the testimonials on the prescribed date and time. Initially, out of total number of 4549 vacancies, the result of only 3722 candidates was published on 24.08.2012 with a notification dated 24.08.2012 conveying that result of some of the candidates were withheld on account of certain irregularities and after obtaining the report of the expert, the result will be declared. Thereafter, again a list of 220 candidates was published by the respondents but names of the applicants were not present therein. Learned counsel further argued that when all the vacancies were not filled and the applicants who were in the select list were not issued offer of appointment, they approached before the authority concerned and an assurance was given to them that as and when demand is made by any Unit, unfilled vacancies will be filled up. Referring to the aforesaid facts, it was further argued that assurance given by the respondents themselves RITU RAJ was not fulfilled as for 4549 vacancies, only select list of 3942 SINGH 9 candidates was declared whereas the list of 607 candidates was not declared. Also, the applicants came to know that the result of 3722 candidates in the month of August 2012, about 526 candidates in that did not report for joining and therefore the vacancies are unfilled but the respondents are not issuing directions for filling up of the said posts even though the eligible candidates are available. It is also argued that after finalization of the selection process, the respondents have issued the final panel list containing the name of only 4049 candidates in place of total notified vacancy 4549. It was argued that the respondents have surrendered 500 vacancies of Trackman out of the total notified vacancies. Learned counsel argued that even if the respondents have surrendered 500 vacancies out of the total 4549 vacancies, they should have filled up the remaining 4049 vacancies but instead they have filled up 4087 vacancies and no justification has been given as to how as many as 38 extra vacancies have been filled up and thus there has been arbitrariness on the part of the respondents / selection committee.
6. Learned counsel for the applicants further argued that although fresh vacancies in the year 2010 were advertised yet the applicants claim for appointment against the unfilled vacancies was legally permissible and the respondents ought to have filled all the advertised vacancies. Learned counsel further argued that in the similar circumstances, for the vacancy year 2010, when unfilled vacancies were not filled up, selected candidates approached before the Tribunal and that matter went up to the Hon'ble Supreme Court of India. The Hon'ble Supreme Court directed the respondents to fill up all the advertised vacancies. In this regard, learned counsel for the applicants has placed reliance upon the judgment passed by the Apex Court in the case of Dinesh Kumar Kashyap and others Vs South East Central Railway and others reported in (2019) 12 SCC 798. Learned counsel argued that although in the case of Dinesh Kumar Kashyap (supra), the Apex Court made a distinction for applicability of the decisions passed in those cases to the extent of candidates who RITU RAJ had approached before the Tribunal yet the ratio laid down in the said SINGH 10 case is equally applicable to the present case of the applicants also. Referring to the facts disclosed in the counter affidavit as well as the judgment and order passed by the Hon'ble High Court of Allahabad in leading Writ Petition No 8561 of 2021 decided on 17.05.2024 filed against the judgment and order passed in the present OA itself, it was next argued that the plea of the respondents to surrender 500 vacancies of Trackman is illegal and there is no provision to surrender the vacancy. If in any case, it is necessitated, it can only be done by the competent authority. Referring to the aforesaid fact, it was also argued that no such order as passed by the competent authority has been brought on record by the respondents. Thus, respondents can be directed to fill up all the vacancies advertised through Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007. Learned counsel for the applicants also argued that respondents cannot change the terms and conditions of the advertisement during the midway stage of the selection process. It is also argued that selection process is completed after offering appointment to the selected candidates. In this matter, certain vacancies have not been filled up and during selection process, 500 vacancies are said to be surrendered. Thus, action of the respondents is against the settled proposition of law.
7. Learned counsel for the applicants further argued that similar issue came up for consideration before the Hon'ble Chattisgarh High Court (at Bilaspur) for the vacancies year 2010 and the Hon'ble Court allowed the writ petition affirming the order passed by the Tribunal in light of the judgment passed in the case of Dinesh Kumar Kashyap (supra) by the Apex Court. Thus, argued that the OA be allowed and the respondents be directed to fill up the entire vacancies advertised through Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007 otherwise the applicants shall suffer irreparable loss and injury. It was also argued that already there has been considerable delay in the selection process and by further prolonging, the respondents are discriminating against the applicants by only giving RITU RAJ assurance and not granting appointment. All the case laws which SINGH 11 have been relied upon by the learned counsel for the applicants to substantiate his case are as follows:
i. Judgment dated 17.05.2024 passed by the Hon'ble High Court of Allahabad in Writ A No 8561 of 2021 (Leading Writ Petition) titled Union of India and 4 others Vs Pappu Kumar and 13 Others, and connected matters.
ii. Judgment passed by the Hon'ble Supreme Court of India in the case of Dinesh Kumar Kashyap and others Vs South East Central Railway and others reported in (2019) 12 SCC 798.
iii. Judgment dated 05.12.2025 passed by the Hon'ble High Court of Chhattisgarh at Bilaspur in WPs No 6291 of 2024 titled Union of India Vs Smt R Santoshi and others, And connected matters.
iv. Judgment dated 07.11.2024 passed by the Hon'ble Supreme Court of India in Civil Appeal No 2634 of 2013 titled Tej Prakash Pathak and Others Vs Rajasthan High Court and Others.
Further, the learned counsel for the applicants, through the OA as well as Rejoinder Affidavit has placed reliance upon several letters/OMs/Circulars which are as follows:
i. RBE No 73/2008 dated 17.06.2008 issued by the Railway Board, Ministry of Railways, Government of India vide letter no E(NG)-II/96/RR-1/62/Vol II on the subject of "Recruitment of Group 'D' staf on Indian railways - Calling of candidates for document verification regarding."
ii. Letter dated 02.08.2013 issued by the Office of the CWM (Personnel), North Eastern Railway, Izzatnagar.
iii. Letter dated 04/06.10.2010 issued by the Office of the CWM (Personnel), North Eastern Railway, Izzatnagar.
RITU RAJ SINGH 12
8. Learned counsel for the respondents vehemently opposed the averments of the applicants' counsel and referring to the counter affidavit, he argued that after being successful in the Physical Efficiency Test and Written Examination, 5450 candidates were called for Document Verification and Medical Examination as per provision contained in Railway Board's letter dated 17.06.2008. Thus, list of 5450 candidates was prepared on the basis of marks obtained in the written examination. Applicants no 1 to 17, 19 to 23, 25 to 29, 31, 32 were called for document verification as only 20% extra candidates as per provision contained in Railway Board's letter dated 17.06.2008 but could not get empanelled due to their low merit. It is further argued that in the document verification, the applicant no 18, 24, 30, 33 and 34 were found prima facie suspicious by the DV officials. Thus, all the concerned documents pertaining to the aforesaid candidates were sent for forensic examination and as per the report of the foresic expert, the candidature of the applicant no 30 and 33, after issuing notice to them and inviting their representation, was rejected and they were debarred from all RRC examinations for lifetime in view of Railway Board's letter dated 11.07.2001. On the basis of the opinion of the forensic expert, since impersonation was not established in the case of applicant no 18, 24 and 34, their name were included in the provisional part panel and their dossiers were sent to the railway division /unit concerned.
9. Learned counsel for the respondents further stated that although the applicants found place in the select list published in the selection process carried out in Advertisement No. NER/RRC/D/2007/1 dated 06/12/2007 (including 20% extra) but due to non-availability of vacancy, they could not be offered the appointment. It is also argued that the applicants merit is lower than the last selected candidate and due to this reason also, the applicants' claim cannot be allowed. It is next argued that in the selection process, employment has been conferred upon 4087 candidates. It is RITU RAJ next argued that a list of 341 candidates for the post of Trackman was SINGH 13 sent to the Construction Division. Since the Construction Division returned the list disclosing that no post is available in the Construction Division due to lapse of time, it was next argued that this fact was raised by the respondents from the very beginning and there is no issue of taking a plea after the appointment. It is also argued that the authority concerned who has returned the list of 341 candidates for the post of Trackman was well competent to return the same. To substantiate this argument, learned counsel for the respondents referred to the original advertisement particularly paragraph no 14.1 and further argued that in the notification itself, it has been clarified that advertised posts may increase or decrease. Learned counsel for the respondents also referred to the advertisement and further argued that in total, 500 posts of Trackman were advertised for the Construction Division which could not be filled up due to abolition of the said posts as selection process was delayed and by that time the need for trackman was over in the Construction Division. It is next argued that when Construction Division returned the list, those candidates were adjusted in some other unit(s) and none of the candidates were appointed who were lower in merit than the applicants. It is also argued that judgment rendered by the Hon'ble Supreme Court of India in the case of Dinesh Kumar Kashyap (supra) cannot be applied to the facts and circumstances of the present case as it relates to a different notification and subsequent notifications / advertisements in the year 2010 and 2012 have been issued and process has been completed. It is also argued that few more candidates were also issued offer of appointment but those were also in the merit list and they are not lower in position than the applicants. It is further argued that judgment relied upon by the learned counsel for the applicants in Smt R Santoshi (supra) and argued that Hon'ble Chattisgarh High Court has observed that the Dinesh Kumar Kashyap (supra) case will not be automatically extended to all categories of candidates irrespective of chronology or conduct and it would be applicable only for those candidates who had approached the Tribunal within time. It is argued that on the ground of the decision given by the Hon'ble Delhi High Court, no direction could be given RITU RAJ SINGH to issue offer of appointment particularly in the facts and 14 circumstances that applicants are included only in replacement panel. Life of the select list/replacement panel has ended. Entire selection process got over in the year 2014 itself and no change in the condition of the advertisement had been made during the selection process. Learned counsel for the respondents also placed reliance upon the following case laws:
i. Judgment dated 16.04.2025 passed by the Hon'ble High Court of Delhi in W.P. (C) No. 10630 of 2018 and CM Appl. 48749/2023 titled Ashish Kumar Vs Union of India and Anothers.
ii. Judgment dated 05.01.2006 passed by the Hon'ble Supreme Court of India in Civil Appeal No 6663 of 2004 titled Union of India and Others Vs Kali Dass Batish And Another.
10. We have considered the rival submissions and gone through the entire records including the OA, counter affidavit as well as rejoinder and written submissions and also have meticulously perused the case laws relied upon by the contesting parties.
11. Admittedly, the applicants were declared successful in select list prepared on the basis of 20% extra candidates. No offer of appointment has ever been issued in favour of the applicants. Although they have completed PET, written examination as well as document verification. It is also the case of the applicants that the respondents have withheld the result of the 827 candidates including the candidates who were absent for document verification. 106 candidates were found medically unfit. Applicants have also raised that 219 candidates had not joined. Applicants Shiv Bahadur and some other have also approached before this Tribunal through OA No 1669 of 2012 which was decided on 07.12.2012 directing the respondents to decide the representation. It is also the case of the applicants that since vacancies are available and applicants found place in replacement panel, they have legitimate expectation for RITU RAJ appointment. A perusal of the record also reveals that the present OA SINGH 15 was decided by at the stage of admission on 27.09.2023 and the OA was dismissed. Thereafter, the applicants of this OA have challenged the order passed in the OA before the Hon'ble High Court. The OAs filed on similar grounds had also been decided and the applicants / respondents in those OAs have also challenged the order passed in the OAs before the Hon'ble High Court of Allahabad and the Writ A No 8561 of 2021 (leading writ petition) was decided along with the connected writ petitions on 17.05.2024 setting aside the order passed in the OAs with the direction to the Tribunal to hear the parties afresh and decide the matter afresh. Thus, parties in the present OA were heard after affording to the respondents to file counter affidavit. The respondents' case is that the applicants found place in the replacement panel. No person below the merit of the applicants have been issued offer of appointment. A list of 341 candidates was sent to the Construction Division which was returned by it with the observation that posts were abolished. It is the case of the respondents that 341 candidates in the aforesaid list were adjusted in different units. This plea has been taken on behalf of the respondents that on surrender of 341 posts by the Construction Division, no post was available.
12. Thus before discussing the submissions raised across the Bar, it will be useful to quote the law laid down by the Hon'ble Courts in the case laws relied upon by the parties:
i. Relying upon the judgment passed by the Hon'ble High Court of Allahabad in the case of Pappu Kumar (supra), learned counsel for the applicants has emphasized upon the following portion:
"27. Primarily, the bone of contention between the parties is firstly whether it was open for the NER to resile from the assurance given by them to offer appointment to the selected candidates, secondly, legality of the order of the NER in surrendering of 500 posts while reducing the advertised post from 4549 to 4049. In order to address the said issue, this Court is required to analyse the pleadings set forth by the respective RITU RAJ parties before the Tribunal. Pleadings reveal that in paragraph no. 2 of SINGH the counter reply of NER a specific pleadings have been made that 500 16 vacancies of Trackman were surrendered by the Construction Organisation, thus, the number of vacancies remained 4049 instead of 4549 and the number of selected candidates were 4087. In order to substantiate the same 'Annexure CR-1' was filed. In para 5, it was further pleaded that a panel of the 2007 selection was prepared on 20.08.2012 and thereafter a fresh panel was based upon 2010 selection was published on 15.02.2013. In para 6 of the counter affidavit, Railway Circular dated 9/10.07.1964 was also annexed so as to contend that the life of the panel is one year and thus it was claimed that there were no vacancies lying vacant against which the original applicants could have been offered appointment since they rank lower in the merit list. The Tribunal despite the aforesaid specific pleadings came to the conclusion, that, in view of the judgment in the case of Dinesh Kumar Kashyap (supra), it was not open for the NER to have denuded the original applicants, the benefits of selection for being offered appointment in the wake of the fact that assurance has been given by them. Moreover, we find that the Tribunal went on to direct the NER to offer appointment to the original applicants without recording any finding as to whether NER was justified in reducing the advertised posts. To put it straight what was required of the Tribunal was to record a specific finding about the legality of the actions of the NER in reducing the advertised posts. In absence of any finding to the said effect, no directions could have been issued for offering appointment to the original applicants, particularly, when it was the consistent case of the NER that there were no posts lying vacant against which the original applicants could have been accommodated.
28. Importantly, also the Tribunal got swayed while observing and holding that there was a specific assurance extended by the NER in the orders dated 09.05.2013 and 17.06.2013 that the original applicants will be offered appointment. A close reading of the said speaking orders reveal that it was not unconditional but the same was conditional and qualified providing that since the original applicants were junior in the rank in reference to the last selected candidates placed on the panel and in the contingency when there shall be a demand from division/unit from posting in place of the candidates who did not join or were found medically unfit or impersonation proved then the original applicants who were lower in the panel their cases may be considered and follow up actions will be taken. It is a cardinal principle of law that the entire RITU RAJ document is to be read as a whole and not in isolation. The Tribunal SINGH 17 seems to have overlooked the aforesaid aspect of the matter. Insofar as the reliance placed upon the judgement in the case of Dinesh Kumar Kashyap (supra) is concerned, it has not been disputed before us that the selections in the said case are different from the present one. Pertinently, a categorical finding ought to have been returned by the Tribunal with regard to the applicability of the said judgment in the present case which is seemingly lacking.
29. The argument raised on behalf of the original applicants that the number of vacancies could not have been reduced denuding the original applicants of the benefits and the order is to be judged based on reasons mentioned therein and the same cannot be supplemented by fresh reasons in the shape of the affidavit is concerned, the same is also dependant upon the core and the fundamental issue relatable to the legality and the validity of the decision of surrendering of the post. Pertinently, the Tribunal has not recorded any finding on the said aspect.
30. Interestingly, the Tribunal while disposing of the O.A. No. 330/000208/2020 on 17.08.2021 relied upon the order dated 03.03.2021 passed in O.A. No. 608 of 2014 which itself was stayed by this Court in the leading writ petition on 27.09.2021. As regards, connected C2, C3 and C4 writ petitions are concerned, they are, at the instance of original applicants against the orders passed by the Tribunal based upon the plea that the Group 'D' vacancies stood surrendered resulting in reduction of the advertised post, the original applicants could not be offered appointment. Apparently, the issues raised in all the writ petitions are one and the same relatable to the import and the impact of the surrendering of posts resulting in reduction of Group 'D' post in the matter of selection. Probably for the same reasons, the writ petitions were consolidated together.
31. We have, meticulously, scanned the documents available on record and find that the fundamental and the core issues as discussed above which goes to the root of the matter have neither been addressed nor any finding has been recorded in that regard, thus, this Court while exercising the writ jurisdiction is not in a position to delve into the said aspects, particularly, when the Tribunal being the Court of first instance was required to address the said issues while returning the findings in that regard.
RITU RAJ SINGH 18
32. Accordingly, we are of the firm opinion that the matter needs to be revisited by the Tribunal, consequently, the writ petitions are being decided in the following manner:
(a). The judgement and the order dated 03.03.2021 of the Tribunal in O.A. No. 608 of 2014 (Pappu Kumar and others v. Union of India and others) impugned in the leading writ petition, the order dated 17.08.2021 of the Tribunal in O.A. No. 208 of 2020 (Sunil Kumar and others Vs. Union of India and another) impugned in the connected C1 writ petition, the order dated 02.02.2023 of the Tribunal in O.A. No. 1044 of 2019 (Vijay Kumar Yadav and others Vs. General Manager North Eastern Railway Gorakhpur, District Gorakhpur and others) impugned in the connected C2 writ petition, the order dated 31.10.2018 of the Tribunal in O.A. No. 330/00807 of 2014 (Bhupendra Kumar Yadav and others Vs. Union of India and another) impugned in the connected C3 writ petition, the order dated 27.09.2013 of the Tribunal in O.A. No. 831 of 2013 impugned in the connected C4 writ petition, are set aside
(b). The original applications stand restored to its original number requiring the Tribunal to decide the controversy afresh.
33. It is open for the parties to take appropriate proceedings for expeditious disposal of the original applications.
34. Needless to point that passing of the order today may not be construed to be an expression on merits as the order of the Tribunal has been set aside on technical grounds, thus, it is open for the parties to raise legal and factual pleas as available to them.
35. With the aforesaid observations, the writ petitions stand partly allowed."
ii. Relying upon the judgment passed by the Hon'ble High Court of Chhattisgarh at Bilaspur in the case of Smt R Santoshi (supra), learned counsel for the applicants has emphasized upon the following portion:
"42. Fifth, the scope and effect of the Supreme Court's decisions require close examination. The judgment in Dinesh Kumar Kashyap (supra) extended relief to those petitioners who had approached the CAT and directed compliance in a manner that, by its terms, assisted that class; RITU RAJ subsequent orders of the Supreme Court clarified and enlarged the scope SINGH 19 of relief to certain categories who had filed proceedings in time. The doctrine of "fence-sitters" and the maxim that law aids the vigilant (vigilantibus non dormientibus jura subveniunt) are well established; where a litigant slept over his rights and only later sought parity after others had succeeded, courts have declined to grant relief on equitable grounds. But these equitable principles cannot be mechanically applied to deny substantive legal rights where the right to appointment flows from an extant replacement list and available vacancies and where no finding of mala fides or deliberate suppression by an applicant is made on the record. Moreover, where the Supreme Court dismissed interlocutory applications for want of maintainability or on procedural grounds (e.g., by the Registrar), such procedural dismissals do not ipso facto decide the substantive entitlement of the petitioners who were not directly before the Supreme Court for adjudication on merits.
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45. Eighth, the competing public interest considerations are salient and must inform the Court's approach. On one side lies the public interest in orderly, predictable and timely recruitment for public employment and in preventing undue burden on the public exchequer by reopening long- closed selections. On the other side is the public interest in ensuring that meritorious candidates who have cleared all stages of a competitive process are not deprived of appointment through administrative inaction or selective appointments of lesser-merit candidates. The Court's task is to achieve balance: to prevent opportunistic litigation and to deter fence- sitting, while at the same time ensuring that genuine legal entitlements are not trampled by technicalities or by administrative indifference.
46. Ninth, having regard to the above, the approach adopted by the CAT, a direction for administrative verification of vacancy position and consequential consideration of eligible candidates on the wait-list, is one that seeks to reconcile these competing considerations. It does not automatically or mechanically order appointments; it requires the respondents to examine the position, to ascertain whether vacancies remain that can legally be filled from the replacement list, and only thereafter to issue offer-letters to those found fit. This process preserves the Railways' managerial discretion and simultaneously protects the legal rights of the petitioners.
RITU RAJ SINGH 20
47. Tenth and finally, it will now be necessary to adjudicate the following matters with specificity: (i) identify which petitioners (if any) are clearly time-barred or disentitled by conduct (i.e., those who are "fence-sitters"
or who have suppressed material facts); (ii) identify which petitioners have bona fide and subsisting claims arising from vacancies that remain unfilled and who are therefore entitled to consideration under the replacement quota; (iii) determine whether any appointments already made by the Railways in later recruitments have lawfully absorbed the alleged vacancies and, if so, to what extent; and (iv) frame suitable directions to the respondents that are precise, practicable and consonant with law, for instance, a limited, time-bound vacancy audit, medical verification of those on the replacement list, and issuance of appointment letters where legally permissible, subject to usual checks of antecedents and fitness.
48. In Dinesh Kumar Kashyap (supra), the Hon'ble Supreme Court has held as under :-
"5. Aggrieved, the appellants approached the High Court of Chhattisgarh in which they also took another plea that persons from the 20% extra replacement panel had been offered appointment by the Railways in many other zones and it was only in the 3 divisions of Bilaspur, Raipur and Nagpur that this was not done. The writ petition was dismissed holding that the appellants herein had no right and also that merely because some appointments have been made in other zones from the replacement panel, it would not create any right in the appellants.
f. The main issue which arises before us is whether the SECR could have ignored the 20% extra panel despite the letter dated 02.07.2008 without giving any cogent reason for the same. No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found RITU RAJ place in the In replacement panel. In this behalf we may make reference SINGH 21 to the judgment of this Court in R.S. Mittal vs. Union of India (U0I), (1995) Suppl. 2 SCC 230, wherein it was held as follows:-
"12. It is no doubt correct that a person on the select- panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."
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54. Accordingly, the writ petitions filed by the Union of India / Railways (including WPS No. 6291 of 2024 and all connected matters being WPS No.4069/2025, WPS No.4127/2025, WPS No.4047/2025, WPS No.4134/2025, WPS No.4024/2025, WPS No.4044/2025, WPS No.4120/2025, WPS No.4330/2025, WPS No.4143/2025, WPS No.10041/2025, WPS No.4119/2025, WPS No.4313/2025, WPS No.7203/2024, WPS No.4039/2025, WPS No.2019/2025, WPS No.7198/2024, WPS No.4020/2025, WPS No.7469/2024, WPS No.23/2025, WPS No.2023/2025, WPS No.2037/2025, WPS No.2027/2025, WPS No.2022/2025, WPS No.2026/2025, WPS No.2016/2025, WPS No.1953/2025, WPS No.2030/2025, WPS No.2158/2025, WPS No.2159/2025, WPS No.2121/2025, WPS No.2892/2025, WPS No.2918/2025, WPS No.2912/2025, WPS No.2915/2025, WPS No.2920/2025, WPS No.2891/2025, WPS No.2929/2025, WPS No.2943/2025, WPS No.2910/2025, WPS No.8558/2024, WPS No.7188/2024, WPS No.7199/2024, WPS No.354/2025, WPS No.3149/2025, WPS No.4975/2025, WPS No.4953/2025, WPS No.4659/2025, WPS No.4607/2025, WPS RITU RAJ No.4611/2025, WPS No.4562/2025, WPS No.4587/2025 & WPS SINGH 22 No.4597/2025) are dismissed, but without any order as to costs subject to the following directions which are intended to be precise, practicable and protective of administrative discretion as well as candidates' legal rights:-
• The respondents (Railways/SECR) shall, through an officer not below the rank of Divisional Railway Manager or an officer of equivalent administrative standing assisted by a small team, carry out a focused vacancy audit of Employment Notice No. SECR/02/2010 dated 15.12.2010 (including all part-panels and replacement/wait lists) and the subsequent recruitments in 2018 and 2019 relevant to the posts in question. The audit shall record, with documentary support, (i) posts originally advertised but not finally filled from the 2010 process, (ii) posts subsequently filled in subsequent recruitments and the authority by which they were filled, and (iii) posts that still, on paper and in fact, remain unfilled and are legally capable of being filled from the 2010 replacement list.
• The vacancy audit shall be conducted in a fair, transparent manner and a written vacancy-position report shall be prepared and placed on record before the authority that will consider cases for appointment. The audit shall also identify to the extent possible from available records, those specific slots (if any) that remain legally capable of being filled from the 2010 replacement list. The audit must be completed preferably within a period of four months so that meritorious claimants are not indefinitely delayed. (The Railways shall ensure that the audit is completed and the report placed on the file for further action without undue delay.) • If the vacancy audit establishes that one or more vacancies legitimately remain available to be filled from the replacement list arising out of SECR/02/2010, the Railways shall proceed to consider the names of eligible candidates on that replacement list in order of merit, and shall subject each candidate to the usual departmental checks (antecedents, medical fitness, verification of original documents) before issuing any offer letters. No candidate shall be appointed without fulfilling the normal antecedent and medical fitness checks.
• Where the vacancy audit shows that a particular post has already been lawfully absorbed in a subsequent recruitment cycle (for example under CEN 02/2018 or RRC-01/2019), that post shall not be available for fresh RITU RAJ appointment from the 2010 replacement list; in such cases the Railways' SINGH 23 recorded position of lawful absorption shall prevail subject to proof to the contrary.
• If, during the administrative exercise, it is found that any candidate has suppressed material facts or has engaged in deliberate mala fides (for example, by willful suppression of prior proceedings they instituted and which directly bear on their claim), the Railways may reject such claim after affording the candidate a fair opportunity to be heard. Any such rejection shall be for recorded reasons and shall be subject to usual judicial review.
• The Railways shall furnish, as part of the administrative record, the vacancy-audit report and a short note of action taken by the competent appointing authority in respect of each candidate considered under this exercise. Where offer letters are issued, such letters shall make express reference to the replacement list source and be expressly subject to usual verifications.
• If any aggrieved party considers that the Railways have acted arbitrarily, or contrary to the requirements of the replacement list or the CAT's order, such party shall be entitled to approach the CAT for appropriate redress; the remedy of judicial review remains open to prejudiced parties.
• There shall be no award of costs. Given the public importance and mixed factual nature of the issues, each party shall bear its own costs.
• The precise scheduling and time-line for the audit and consequent administrative steps shall be determined by the competent authority having regard to available administrative exigencies and the requirement of fair and thorough inquiry; nothing in this order fetters the discretion of the appointing authority to adopt a structured timetable consistent with these directions.
55. For the foregoing reasons and having regard to the balanced approach mandated by law between the need for orderly public recruitment and the protection of substantive legal rights of meritorious candidates, the writ petitions filed by the Union of India / Railways are dismissed and the CAT's common order dated 06.03.2024 is upheld to the extent that it directs an administrative examination of the vacancy position and consequent consideration of eligible candidates on the RITU RAJ replacement list in conformity with law and these directions. Parties will SINGH act in accordance with this order."
24iii. Relying upon the judgment passed by the Hon'ble Supreme Court of India in the case of Tej Prakash Pathak (supra), learned counsel for the applicants has emphasized upon the following portion:
"42. We, therefore, answer the reference in the following terms:
(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;
(2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;
(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra).
Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;
(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ nonarbitrary and has a rational nexus to the object sought to be achieved.
(5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;
(6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list."
RITU RAJ SINGH 25 iv. Relying upon the judgment passed by the Hon'ble Supreme Court of India in the case of Kali Dass Batish (supra), learned counsel for the respondents has emphasized upon the following portion:
16. In Shankarsan Dash Vs Union of India, 1991(2) SCT 555 (SC) :
(1991)3 SCC 47 as under:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla v. State of Haryana, (1986)4 SCC 268 or Jatinder Kumar v. State of Punjab (1985)1 SCC 122.
This, in our view is the correct approach to be adopted in dealing with a matter of this nature."
v. Relying upon the judgment passed by the Hon'ble Delhi High Court in the case of Ashish Kumar (supra), learned counsel for the respondents has emphasized upon the following portion:
11. The petitioner's contention would imply that no recruitment exercise can be carried out for a particular post until the entire pool of wait listed or reserve candidates is exhausted, regardless of the number of vacancies that were advertised in the advertisement in question. I find no basis for such a suggestion, which is contrary to the settled law that wait listed candidates can be appointed against vacancies for which they apply, in RITU RAJ terms of the recruitment notification. Reference may be made, in this SINGH 26 connection, to the observations of the Supreme Court in Mukul Saikia & Ors. v. State of Assam & Ors3 , and State of Orissa & Anr. v. Rajkishore Nanda & Ors4 . In the latter judgment, the Supreme Court has summarised the legal position thus:
"11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Biharv. Secretariat Asstt. Successful Examinees Union 19865 , Prem Singh v. Haryana SEB6 , Ashok Kumar v. Banking Service Recruitment Board7 , Surinder Singh v. State of Punjab8 and Rakhi Ray v. High Court of Delhi9
12. In State of Punjab v. Raghbir Chand Sharma10 this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that the post can be filled up offering the appointment to the next candidate in the select list observing as under : (SCC p. 115, para 4) "4. ... With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the RITU RAJ SINGH 27 subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."
13. In Mukul Saikia v. State of Assam11 this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The select list "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of select list had expired as soon as the number of posts advertised were filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies" and the said course is impermissible in law.
14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India12 held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J&K13, Union of India v. S.S. Uppal14, Bihar Public Service Commission v. State of Bihar15, Simanchal Panda v. State of Orissa16, Punjab SEB v. Malkiat Singh17, Union of India v. Kali Dass Batish18, Divisional Forest Officer v. M. Ramalinga Reddy19, Subha B. Nair v. State of Kerala20, Mukul Saikia v. State of Assam21 and S.S. Balu v. State of Kerala22.
16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he RITU RAJ approaches the court after the expiry of the select list. If the SINGH 28 selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar v. State of A.P.23, State of Bihar v. Mohd. Kalimuddin24, State of U.P. v. Harish Chandra25, Sushma Suri v. Govt. of NCT of Delhi26 , State of U.P. v. Ram Swarup Saroj27, K. Thulaseedharan v. Kerala State Public Service Commission28, Deepa Keyes v. Kerala SEB29 and Subha B. Nair30."
13. In Dinesh Kumar Kashyap (supra) case, Hon'ble Supreme Court of India directed the Union of India to consider the case of the petitioners who had approached the Central Administrative Tribunal and to grant them appointment over and above the first selected candidates of the selection process which commenced in the year 2012 but immediately below the candidates of the 2010 selection process for the purpose of seniority. On the basis of direction given in Dinesh Kumar Kashyap (supra) case, similarly situated candidates of the recruitment year 2010 who had also approached the Tribunal, the OAs were allowed and the order passed in the OAs were challenged before the Hon'ble Chhattisgarh High Court in Writ Petition No 6291 of 2024 and other connected writ petitions. Hon'ble High Court of Chhattisgarh has held that the direction given by the Tribunals to audit the vacancies in a fair and transparent manner and a written vacancy position report shall be prepared and placed on record before the authority. Thus, that will be taken into consideration for issuing the offer of appointment. While deciding the aforesaid writ petitions, Hon'ble Chhattisgarh High Court has also held that Hon'ble Supreme Court itself clarified that the judgment passed in the Dinesh Kumar Kashyap (supra) case will also apply to those categories who have approached the Court in time.
14. In the case of Tej Prakash (supra), a Constitution Bench of the Hon'ble Supreme Court dealt with the issue of changing the terms and conditions of the examination midway of the selection process and the paragraph no 42 of the same has already been quoted above. RITU RAJ Similarly, the ratio laid down by the respective Courts in the case of SINGH 29 Ashish Kumar (supra) and Kali Dass Batish (supra) have also been quoted above, which we are going to discuss in the following paragraph.
15. The first and foremost question for consideration in this matter is as to whether the ratio laid down in the case of Dinesh Kumar Kashyap (supra) is applicable in the facts and circumstances of the present matter also. Admittedly, the decision in Dinesh Kumar Kashyap (supra) case came up for the recruitment year 2010. The present matter is related to the recruitment year 2007. Hon'ble Supreme Court while allowing the prayer made by the petitioners in Dinesh Kumar Kashyap (supra) case has restricted the relief only to those candidates who had approached the Tribunal. On clarification, the Hon'ble Supreme Court clarified the judgment rendered in the Dinesh Kumar Kashyap (supra) case to be applicable to all the OAs / writ petitions which has been filed till decision in that case. Learned counsel for the applicants has raised that ratio laid down in Dinesh Kumar Kashyap (supra) case is applicable in the present matter also.
16. We have analyzed the submissions raised on behalf of the parties on this issue and compared the same with the ratio laid down in Dinesh Kumar Kashyap (case) as well as the Hon'ble Chhattisgarh High Court case. Since in Dinesh Kumar Kashyap (supra) case, prayer of the candidate of the replacement panel of the recruitment year 2010 was under consideration and the Hon'ble Supreme Court of India had restricted the direction given in that only to the extent of OA / writ petitions filed till the date of judgment in that case. It implies that judgment / directions given in Dinesh Kumar Kashyap (supra) case cannot be applied to other recruitments. This issue also came up for consideration before Hon'ble Chhattisgarh High Court in R Santoshi (supra) case and the Hon'ble Chhattisgarh High Court has also clarified in para no 52 that judgment of the Hon'ble Supreme Court in Dinesh Kumar Kashyap (supra) case read with the subsequent miscellaneous orders confers relief upon candidates who RITU RAJ had approached the Tribunal within time, it's ratio does not SINGH 30 automatically extend to all categories of candidates. If such is the position, we are of the view that judgment of Dinesh Kumar Kashyap (supra) case cannot be applied for the candidates of replacement panel of the recruitment year 2007 which is a different recruitment. Thus, submissions raised on behalf of the applicants in this respect are not acceptable.
17. As far as changing of the conditions of the advertisement midway during the selection process is concerned, a Constitution Bench of the Hon'ble Supreme Court in the case of Tej Prakash (supra) considered all the judgment passed by the Supreme Court as on date and has held that eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process cannot be changed midway during the recruitment process unless the extant rules so permit or the advertisement, which is not contrary to the extant rules, so permit. In this respect, it will be useful to quote the para no 14 of the advertisement under question and the same is as follows:
"14. INSTUCTIONS FOR THE CANDIDATES 14.1 The number of vacancies shown is provisional and is liable to be increased or decreased."
Thus, the aforesaid quotation clearly envisages that vacancy advertised through the advertisement can be increased or decreased. Thus, submission raised on behalf of the applicants that by surrendering the vacancies advertised through the advertisement under discussion, the respondents are changing the conditions of the advertisement midway during the selection process, does not sustain. Since specific stipulation in the advertisement for decreasing / increasing the vacancy has been disclosed and the Hon'ble Supreme Court of India in the case of Tej Prakash (supra) has also held that conditions can be changed if the advertisement itself permits and it is not contrary to the extant rules. Thus, it is pertinent to mention here RITU RAJ that nothing is brought on record on behalf of the applicants to show SINGH 31 that condition stipulated in the advertisement in regard to decreasing / increasing of the vacancies is contrary to the extant rules. It is also noteworthy that applicants have applied and appeared in the selection process accepting the condition stipulated in the advertisement. Thus, it can safely be held that by decreasing the vacancies, the respondents have not committed any fault or violation of the statutory provision.
18. Submissions have also been raised on behalf of the applicants that there is no specific provision for surrendering the vacancies. The respondents themselves have admitted that there is no provision for surrendering the vacancy and a contrary plea has also been taken by the respondents that 500 vacancies advertised in the advertisement pertaining to the Construction Division were surrendered. In this respect, learned counsel for the respondents has relied upon RBE No 73/2008, letter dated 20.09.2012 issued by Office of Chief Administrative Officer / Construction, Gorakhpur, North Eastern Railway (Annexure no CR -3 to the Counter dated 02.04.2026) and the note dated 22.04.2014 whereby utilization of replacement panel for the list of 20% extra candidates of 2007 examination was declined. Learned counsel for the applicants has relied upon RBE No 17/2024 stating that reduction of notified vacancies or cancellation of indent as well as enhancement /reduction of notified vacancy cannot be done by HR. He has also argued that in the present matter, the authority who returned the vacancy was not competent to return / surrender the same.
19. We have minutely analyzed the submissions raised on behalf of the parties in this respect and we find that RBE No 17/2024 is related to the modification / cancellation of indent placed for GDCE examination and this is issued on 16.02.2024. Since RBE 17/2024 is relating to GDCE examination and has been issued on 16.02.2024, it cannot be applied to issuing offer of appointment for the vacancy year 2007 for the open recruitment. To decide the issue regarding the legality of surrendering of 500 vacancies, it will also be useful to RITU RAJ refer to the advertised posts of the Trackman in CAO / Con / BO SINGH 32 which were the total of 500 posts (UR-252, SC-75, ST-38 and OBC
135) as were given in the advertisement dated 06.12.2007. Thus, in the advertisement itself, at page no 1, in the column 9 Track Man, 500 vacancies had been advertised belonging to the Construction Division (CAO). Notification itself reveals that vacancy advertised may increase or decrease and it is provisional. In that situation, we do not find any illegality in returning / surrendering of the vacancies.
20. Now, coming to the next point as to whether assurance said to have been given by the respondents to the applicants to issue offer of appointment to the selected candidates is an enforceable legal right. In this respect, the ratio laid down by the Hon'ble Supreme Court in Shankarsan (supra) case can be taken into consideration in which the Apex Court has clearly held that only on the ground that a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. The Apex Court has also held that unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, the State is also bound to act reasonably and not arbitrarily. In this matter, correct position is that 500 vacancies have been surrendered / returned by the Construction Division and thus vacancies advertised through Advertisement dated 06.12.2007 were reduced. Applicants' case is that vide the order dated 09.05.2013 and 17.06.2013, it was assured to the applicants to consider their claim as per the merit position and they will be informed through website as well as official letter from the end of the Division / Unit concerned. Although in these letters, it was also mentioned that seniority of the selected candidates through earlier panel was protected under the established rules enforced from time to time but contents of these letters cannot be taken as assurance to issue offer of appointment mandatorily in favour of the applicants. In view of the law laid down in Shankarsan (supra) case, plea taken by the learned counsel for the applicants is not acceptable. RITU RAJ Admittedly, the applicants are placed in replacement panel, a number SINGH 33 of posts have been surrendered / returned by the Construction division as due to passage of time, requirement of employees does not exist in the Construction Division for the reason that they have to complete the work in a timed frame and after completion of the work, they don't need employees and also due to the fact that many more subsequent recruitments have taken place. The respondents have denied the non utilization of the replacement panel in view of the ratio laid down in Dinesh Kumar Kashyap (supra) and thus submissions raised on behalf of the applicants are not acceptable. No direction in light of judgment of the Apex Court in the case of Dinesh Kumar Kashyap (supra) case which was relating to the recruitment year 2010 can be issued in the present matter. Hon'ble Delhi High Court in the case of Ashish Kumar (supra) has held that a select list cannot be treated as a reservoir for the purpose of appointment. It was also held that "it is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the select list. Admittedly, in the present matter, the life of the select list has ended.
21. One more question left to be decided is as to whether by reducing the number of vacancies and reason given by the respondents for doing so is being supplemented by fresh reason in the shape of affidavit. In this respect, it is pertinent to mention here that this issue has been taken from the very beginning when a panel of 341 candidates was sent to the Construction Division and the same was returned by them. Thereafter, the candidates were adjusted / accommodated in different units. This plea has also been taken in the counter affidavit. As has been held hereinabove, reducing / surrendering / returning / abolishing of 500 posts meant for Construction Division was on the basis of a valid ground as those posts are no longer continuing in the department. Thus, submissions raised on behalf of the applicants in this respect are not acceptable. Furthermore, through the para no 5.55 of the OA, the applicants have RITU RAJ referred to several case laws and we have also gone through the same SINGH 34 although no judgment of those cases has been supplied at the end of the applicants. In that respect, it is pertinent to record that the relief claimed in the present matter cannot be allowed in favour of the applicants particularly in view of the law laid down by the Hon'ble Supreme Court of India in the case of Shankarsan (supra) and hence the case laws referred and relied upon by the applicants do not support their case.
22. Thus, on the basis of the aforesaid discussions and analysis, we are of the considered view that the prayer made in the OA is not liable to be allowed particularly when the life of the select list has come to an end. There is a valid ground for abolition / surrendering of the 500 vacancies and the said exercise was carried out by the respondents in accordance with rules and further no candidate placed below the merit of the candidates has been offered the appointment. Furthermore, the case of Dinesh Kumar Kashyap (supra) is not applicable to the present recruitment which is under question herein. Thus, being devoid of merits, the instant original application is liable to be dismissed and the same is accordingly dismissed. The effect and operation of the impugned order remains intact.
23. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
RITU RAJ
SINGH