S. Karthikeyan vs The General Manager on 18 February, 2022

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Kerala High Court

S. Karthikeyan vs The General Manager on 18 February, 2022

Aggrieved by the impugned Ext.P4 final order dated 24.11.2021 rendered by the Central Administrative Tribunal, dismissing OA No.156 of 2020, the applicants therein have filed the instant Original Petition under Articles 226 & 227 of the Constitution of India with the following prayers:

"I) Call for the records leading to the issuance of Ext.P4 and quash the same and to allow the original application No.156 of 2020 as prayed for.

II) Grant such other further relief's as this Hon'ble court may deemed fit, just and proper in the facts and circumstances of the case. III) Award cost of and incidental to this Petition."

2. Heard Sri.Martin G Thottan, learned counsel appearing for the petitioners in the OP/applicants in the OA and Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the respondents in the OP/respondents in the OA.

3. The petitioners herein had approached the Central Administrative Tribunal, Ernakulam Bench by filing the instant O.P (CAT) No.11 of 2022 4 Ext.P1 Original Application, O.A.No.156 of 2020, with the following prayers:

" I) Call for the records leading to the issuance of Annexure A6 and quash the same.

II) Award costs of and incidental to this application. III) Grant such other relief, which this Honourable tribunal may deem fit and proper in the circumstances of the case."

4. The main relief sought for by the applicants before the Tribunal was for quashment of the impugned Annexure-A6 proceedings dated 28.02.2020 issued by the 4 th respondent, whereby the selection process finalised in pursuance of Annexure-A1 selection notification dated 25.10.2017 was cancelled.

5. Though no ground has been stated in the impugned Annexure-A6 proceedings, the grounds taken by the respondents in the OA to justify the impugned decision at Annexure-A6, as pleaded by them in Ext.P2 reply statement filed by them before the Tribunal, were to the effect that, going by Annexure-R1 guidelines dated 03.11.1988, issued by the Railway Board, written selection examinations in Railway services will have to be conducted in a bilingual manner that is, both in English as well as in Hindi, and that if question papers are not prepared in a bilingual basis, in as much as question papers are not only in English but only in Hindi, then such examination could be cancelled by the competent authority, etc. O.P (CAT) No.11 of 2022 5

6. The Tribunal after hearing both sides, has found that the question paper for the instant written selection examination was prepared only in English and not in Hindi and much after the examination, a complaint was preferred by one of the persons, who had taken part in the selection examination, stating that he could not qualify in the examination, as the question papers were not set in Hindi etc., and that going by the mandate of Annexure-R1 guidelines, the impugned decision taken by the respondents at Annexure-A6 to cancel the selection process cannot be legally found fault with, etc. It is this verdict of the Tribunal at Ext.P1, that is under challenge in the present Original Petition that has come up before us.

7. A brief recital to the crucial and relevant factual aspects would be pertinent in this case. The 4th respondent herein, the Senior Divisional Personnel Manager, Southern Railway, Thiruvananthapuram has issued Annexure-A1 selection notification dated 25.10.2017 inviting applications from interested and eligible in- service candidates, for selection to the post of Junior Engineer (Electrical) under the 25% quota set apart on the basis of Limited Departmental Competitive Examination (LDCE). The applicants and others, who were eligible and qualified in terms of the selection notification, had responded to Annexure-A1 selection notification. O.P (CAT) No.11 of 2022 6 The last date for submission of applications as prescribed by Annexure-A1 was upto 25.11.2017. It is common ground that the syllabus of the written examination as reported in Ext.P3 would clearly indicate that proficiency in English language is an essential aspect of the selection process. Thereafter, the selection written examination for the above said Limited Departmental Competitive Examination was conducted by the respondents on 25.11.2018. The applicants had participated in the said selection examination. Thereafter, the respondents had published the result of the above said selection examination as per Annexure-A3 order dated 11.3.2019, in which the names of the two applicants herein have been duly included. Pursuant thereto, as ordered in Annexure-A3, the training, after the selection examination of selected candidates, had started by the 3rd week of March 2019. The applicants and the other selected candidates had also participated in the said training. The training process was over by March, 2020 or so.

8. It is common ground that it is much after the commencement of the training in the 3 rd week of March, 2019, that a complaint was received from one of the failed candidates on 09.08.2019, in which it has been complained that the question papers in respect of the written examination conducted on 25.11.2018, was O.P (CAT) No.11 of 2022 7 set only in English and not in Hindi and that therefore, he is seriously prejudiced and that he has failed to secure the minimum qualifying marks, etc. It is brought to our notice that the above said complainant, who belongs to the Scheduled Tribe Community, hails from the State of Bihar and he could not secure the minimum qualifying marks in the above said examination and that the post reserved for Scheduled Tribe Community is kept unfilled.

9. It is pointed out by Sri.Martin G. Thottan, learned counsel appearing for the petitioners, that as per Annexure-A1 selection notification, out of the three notified vacancies, two vacancies in the post of Junior Engineer (Electrical) have been set apart for unreserved/general category and one vacancy thereof is set apart for Scheduled Tribe Community, and that since no candidate from Scheduled Tribe Community has qualified in the selection examination, the said one vacancy reserved for Scheduled Tribe Community has been kept unfilled for selection afresh of a qualified Scheduled Tribe candidate.

10. The main contention urged by Sri.Martin G. Thottan, learned counsel appearing for the petitioners, is to the effect that the Tribunal has not examined in any manner the crucial aspect that the very complaint given by the failed candidate was long after the O.P (CAT) No.11 of 2022 8 issuance of the selection notification and that the commencement of the training, etc., and that the training was also almost over and the impugned decision to cancel the selection process was taken in terms of Annexure-A6 only as late as on 28.02.2020. Hence, it is urged that the exercise of power by the respondents, for cancelling the selection process in this case, is highly arbitrary and unreasonable and therefore is illegal. It is pointed out that, it is not as if in every case where the question paper of the selection examination is not set in Hindi, that the selection process should be cancelled, irrespective as to the delay on the part of the complainant, etc., in giving the complaint, but that a discretion is conferred on the competitive authority in terms of Annexure-A1 that the written examination could be cancelled and that the said power, conferred as per Clause 12 of Annexure-R1 guidelines, is a conferment of a power coupled with a duty to exercise it in a reasonable and proper manner and not in an arbitrary and capricious manner. That, in the facts of this case, it is clear that the complainant had accepted Annexure-A1 selection notification and had participated in the selection process, including the written examination, and the results were published on 11.03.2019, by which it was clear that the said candidate had failed in securing the minimum qualifying marks and the training of O.P (CAT) No.11 of 2022 9 successful candidates had also started in March, 2019 and it is long thereafter that the complainant had chosen to prefer a complaint as late as on 09.08.2019 and that only a single candidate, who had participated in the examination and failed, had given the said complaint, and in view of the highly belated nature of the complaint, the competent authority was obliged in law to apply their mind to decide as to whether the selection process itself is to be cancelled.

11. Further that, irrespective as to whether the selection process of the successful candidates is cancelled or not, the vacancy set apart for Scheduled Tribe Community has been kept unfilled for selection afresh of a qualified Scheduled Tribe Candidate and irrespective as to whether the present selection process is cancelled or not, the selection process for the unfilled vacancy of Scheduled Tribe would go on and therefore, the competent authority should have been aware of the crucial and elementary relevant aspect that no serious prejudice is thus caused to the complainant and that therefore, it is urged that in view of the highly belated nature of the complaint and also in the light of the crucial fact that no substantial serious prejudice has been caused to the said failed candidate, the competent authority should not have cancelled the selection process at that distance of time. Further that in cases of this nature, it is not as if the O.P (CAT) No.11 of 2022 10 successful candidates should be penalised on account of the omission or mistake of the official respondent authorities concerned in setting up of the question paper and in a case of this nature, the interest of administration could have been properly subserved if proper remedial action had been taken by the respondents as against the officials responsible for the above said mistake, instead of cancelling the selection process, after a long distance of time.

12. Per contra, Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the respondents would point out that a mere reading of Annexure-A1 would make it clear that the said guidelines therein are mandatory and that the exercise of discretion by the 4th respondent in issuing Annexure-A6 proceedings for cancelling the selection process cannot be said to be illegal, etc.

13. After hearing both sides, we are of the firm view that prima facie, strong grounds have been made out by the petitioners in this case as mentioned herein above. But none of those crucial and relevant aspects are seen duly adverted to by the Tribunal. Hence, we are inclined to take the view that the matter would require serious re- consideration in the hands of the Tribunal, in as much as the Tribunal has gone wrong in not considering the above said crucial and relevant aspects of the matter. Hence, the matter would warrant a remit in the O.P (CAT) No.11 of 2022 11 facts and circumstances of this case. For effectuating such a remit, it is ordered that the impugned Ext.P4 final order dated 24.11.2021 rendered by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.156 of 2020, will stand set aside. Consequently, it is ordered that Ext.P1, OA No.156 of 2021, will stand restored to the file of the Tribunal for consideration and decision afresh. Both sides will be at liberty to file any additional pleadings in the matter on the points mentioned herein above. The said process of submission of additional pleadings may be completed within one month or so. Thereafter, the Tribunal may take all reasonable endeavors possible under the circumstances to ensure the early consideration and final disposal of the instant OA No.156 of 2021, after hearing both sides, without much delay and within a time limit that may be found as appropriate and reasonable by the Tribunal, taking note of the interest of administration of justice. While doing so, the Tribunal will meticulously take into account the above said crucial and relevant aspects pointed out herein above, and a final verdict in the matter may be rendered in the OA.

14. The Registry will forward a copy of this judgment to the Registry of the Central Administrative Tribunal, Ernakulam Bench, who is dealing with OA No.156 of 2020, for necessary information O.P (CAT) No.11 of 2022 12 and further action.

With these observations and directions, the above Original Petition will stand finally disposed of.

sd/-

ALEXANDER THOMAS, JUDGE sd/-

VIJU ABRAHAM, JUDGE pm O.P (CAT) No.11 of 2022 13 APPENDIX OF OP (CAT) 11/2022 PETITIONERS' ANNEXURES:

Annexure A6 TRUE COPY OF THE OFFICE ORDER BEARING NO.V/P.608/VIII/EL/GS/JE DATED 28.02.2020 Annexure A1 TRUE COPY OF THE NOTIFICATION NO.V/P.608/VIII/EL/JE/LDCE DATED 25.10.2017 Annexure A2 TRUE COPY OF THE PANEL NO.V/P.608/VIII/EL/JE/LDCE DATED 22.03.2019 Annexure A3 TRUE COPY OF THE OFFICE ORDER NO.14/2019/EL/GS DATED 21.03.2019 Annexure A4 TRUE COPY OF THE LETTER NO.V/E.150/1/STAFF DATED 21.05.2019 Annexure A5 TRUE COPY OF THE LETTER NO.V/E.150/1 DATED 13.01.2020 Annexure A7 TRUE COPY OF THE LETTER NO.L.CETI.THK.CON.1 DATED 16.11.2019 ISSUED TO THE FIRST APPLICANT.

Annexure A8               TRUE COPY OF THE LETTER
                          NO.L.CETI.THK.CON.1 DATED 16.11.2019
                          ISSUED TO THE SECOND APPLICANT.

Annexure R1               TRUE COPY OF THE RAILWAY BOARDâ€™S
                          LETTER NO.HINDI-87/OL-1/10/3 DATED
                          03.11.1988

Exhibit P1                TRUE COPY OF THE ORIGINAL APPLICATION
                          OA/180/0156/2021 FILED BY THE
                          PETITIONERS BEFORE THE HONâ€™BLE CAT,
                          ERNAKULAM BENCH

Exhibit P2                TRUE COPY OF THE REPLY STATEMENT IN
                          OA/180/00156/2020 FILED BY THE
                          RESPONDENTS BEFORE THE CENTRAL
 O.P (CAT) No.11 of 2022               14

                          ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

Exhibit P3                TRUE COPY OF THE REJOINDER FILED BY THE
                          PETITIONERS IN OA/180/00156/2020

Exhibit P4                TRUE COPY OF THE ORDER DATED24.11.2021
                          IN OA/180/00156/2020

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