Central Administrative Tribunal - Jabalpur
Krishna Kumar Sharma vs Union Of India Through ... on 12 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING: INDORE
ORIGINAL APPLICATION NO.201/00552 OF 2015
Jabalpur, this Friday, the 12th day of August, 2015
SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
SMT. JASMINE AHMED, JUDICIAL MEMBER
1. Krishna Kumar Sharma, S/o Shri O.P. Sharma, Age 38 years, Occupation Trackman, R/o-15, Anu Parishar, Kanchan Vihar, Ujjain 456006 (M.P.).
2. Lokeshwar Kumar Sahu, S/o Shri Halluram Sahu, Age 36 years, Occupation Trackman, R/o 17, Anu Parishar, Kanchan Vihar, Ujjain 456006 (M.P.).
3. Niranjan Kumar S/o Shri Banwarilal, Age 28 years, Occupation Trackman, R/o 15, Anu Parishar, Kanchan Vihar, Ujjain 456006 (M.P.).
4. Rajendra Kumar S/o Shri Gayaprasad Lodhi, Age 36 years, Occupation Trackman, R/o-D/366, Vivekanand Colony, Ujjain 456006 (M.P.).
5. Chandra Shekhar Sainik, S/o Shri Shyam Sunder Sainik, Age 27 years, Occupation Khalasi (Porter), C/o- SSE (C&W) IND Coaching Department, Pathar Godown Road, Vallabh Nagar, Indore 452003.
6. Gopal Kantawala S/o Shri Jagdish Chandra, Age 45 years, Occupation Khalasi (Porter), R/o 113, Globus Township, Vinoba Nagar, Ratlam 457001 (M.P.).
7. Ramprasad Meena, S/o Shri Motilal Meena, Age 31 years, Occupation Trackman, R/o- Railway Colony Vikram Nagar, Ujjain 456006 (M.P.) -Applicants
(By Advocate Smt. Pritha Moitra)
V e r s u s
1. Union of India Through Secretary/Chairman, Ministry of Railway, Rail Bhawan, Raisena Road, New Delhi 110001.
2. General Manager, Western Railway, Church Gate, Mumbai 400020.
3. Finance Advisor & Chief Accounts Officer, Western Railways, Church Gate, Mumbai 400020.
4. Sr. Section Engineer, (PW) (N), Ujjain 456006.
5. Sr. Section Engineer, (PW) (E), Ujjain 456006.
6. Sr. Section Engineer, (C&W), Western Railway, Indore 452001.
7. Divisional Railway Manager (E), Western Railways, Ratlam 457001 (M.P.) - Respondents
(By Advocate Ms. Geetanjali Chourasia proxy counsel of Smt. Pratibha Walia)
(Date of reserving order : 08.08.2016)
O R D E R
By Jasmine Ahmed, JM.-
This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1987 wherein applicants seek following reliefs:
8.1 That the impugned communication & order dated 04.05.2015 & 03.04.2014 be setaside/quashed.
8.2 That the respondent be directed to restore the select list dated 27.06.2013 & in consequence the applicants be appointed on the post of JE (IT) immediately.
8.3 Any other order/orders, which this Honble Tribunal deems fit proper under the facts & circumstances of the case.
2. This is the second round of litigation wherein on 17.3.2015 in Original Application No.201/00218/2015 a direction was given while disposing the O.A to decide the pending representation of the applicants dated 20.09.2014 within a period of three months and after taking decision the order so passed be communicated to them. In pursuance to the order passed by this Tribunal dated 17.3.2015, the respondents have passed the order dated 4.5.2015 wherein it has been stated that, A major administrative lapse was noticed in the selection process; the selection committee that conducted the written examination was found to be lower than the level prescribed by Railway Board. The Selection Committee, therefore, became void being not authorized to conduct the selection. The selection process was, therefore, cancelled by the competent authority. The demand of the claimants for issue of appointment letter because the written test has been conducted is completely unreasonable and unacceptable.
3. The brief factual matrix of the case is that a notification was published by the respondents dated 23.10.2012 for selection to the post of JE (IT) PB-2, Rs.9300-34800/- and Grade Pay Rs.4200/-. The applications were invited from the serving Railway employees for filling up of 26 posts (17 General, 6 SC and 3 ST) categories of JE (IT). In pursuance to the notification, the applicants herein applied and also appeared in the written test and also qualified in the written test. A letter dated 27.6.2013 is annexed in the O.A, which is the list of successful candidates, who appeared in the written test for the selection to the post of JE (IT) held on 30.04.2013. In this list, the name of all 7 applicants figured. In this letter dated 27.6.2013, below the names of the successful candidates it was written that, Kindly furnish the service sheets and the ACRs for the last three years, i.e., 2012-13, 2011-12, 2010-11 of the above mentioned candidates for the selection procedure immediately.
4. It is the contention of the learned counsel for the applicant that applicants gave representation to the respondents regarding the written test and regarding selection to the post of JE (IT), but as nothing was heard from the side of the respondents, they preferred Original Application No.201/00218/2015, which was disposed of by this Tribunal vide its order dated 17.3.2015 giving direction to the respondents to dispose of their pending representation. The counsel for the applicant states that as the selection procedure was completed hence cancelling the entire selection procedure is illegal, arbitrary and wrong and voilative of Principles of Natural Justice as after giving the written examination and also qualifying in the written examination a natural expectation taken place in the mind of the applicants that they will be selected for the post of JE (IT). She also contends that the respondents, in their counter reply have stated in Sub Para 2 of paragraph 10 that, It is further submitted that in 6th Pay Commission, the cadre of JE I and II were merged and allotted one grade pay of Rs.4200 and above. According to Railway Board letter dated 22/3/2011 (Annexure R/1), a JAG level committee needs to be constituted for selection for the post carrying Grade Pay of Rs.4200/- and above but selection was conducted by Senior Scale Officers committee which was not authorized to conduct the examination, hence the whole selection was void. The competent authority came to know about the lapse and cancelled the whole selection process.
5. It is the contention of learned counsel for the applicant that the entire selection has been cancelled on the basis of a Boards letter dated 22.3.2011 whereas the notification is of dated 23.10.2012. Hence the respondents cannot cancel the entire selection process on the basis of a letter dated 22.3.2011 as the written examination took place after the letter dated 22.3.2011. She also stated that in the speaking order nothing has been explained or told about the Railway Boards letter dated 22.3.2011. Hence, cancelling the entire selection process, after the applicants passed the written examination, is bad, illegal, arbitrary and cannot sustain in the eyes of law.
6. Per contra, the learned counsel for the respondents stated that there is no illegality in the acts of the respondents as when it was found that the conduct of the examination is lacking in authority, then the selection procedure has been cancelled. She also stated that for conduction of any examination there is certain directions from the Railway Board and also levels are prescribed by the Railway Board. As this examination was conducted by a lower authority than the level prescribed by the Railway Board and when it was detected by the respondents department, the selection process has been cancelled realizing that the selection process is void-ab-initio, as the selection committee was not authorized to conduct the selection being lower in level as prescribed by the Railway Board.
7. The learned counsel for respondents also stated that the selection process was not completed as the condition of sending the service sheets and the ACRs of the last three years were also the part of the selection process, which was never taken place. But before that when it was discovered that the selection process has been conducted by improper authority, hence the respondents have cancelled the entire selection process. She also stated that the selection is for a technical post and drew our attention to Page No.6 of counter affidavit, which is the letter dated 22.3.2011 in which in Para 2 it is stated as below:
2. Pursuant to the merger of grades, as a result of implementation of recommendations of 6th Central Pay Commission, Ministry of Railways have considered the matter afresh and it has been decided that henceforth the Selection Board will consist of Junior Administrative Grade officers for selection to the posts carrying grade pay Rs.4200/- and above, whereas officers in the rank of Senior Scale may be nominated for selection to the post carrying grade pay Rs.2800 & below.
8. The learned counsel for respondents further stated that the applicants herein had applied for the post which carries a Grade Pay of Rs.4200/-. Hence, as per Railway Boards letter dated 22.3.2011, the Selection Board should have been consisted of Junior Administrative Grade officers, which here in this case a lacuna occurred as the selection was conducted by a lower level committee. Therefore, coming to know this lacuna, the respondents have cancelled the selection process, which was not at all completed.
9. Heard the rival contentions of the parties and perused the documents and records.
10. It is not disputed that for the selection to the post of JE (IT), the written test was conducted and the applicants herein all were declared successful in the written test. It is seen that the later part of the selection process, which was of evaluating service record and ACRs, were never completed. Hence, the contention of the learned counsel for the applicant that the entire selection process was completed does not hold good.
11. We have also perused the letter dated 22.3.2011 and found that the Railway board has categorically stated that in the case of selection of officers having Grade Pay of Rs.4200/-, the Selection Board has to be consisted of Junior Administrative Grade Officers. Hence after this Railway Boards order, the notification for selection was published by the respondents on 23.10.2012. Thus, the direction in letter dated 22.3.2011 is very much applicable on this selection.
12. It is also a settled principle of law that if an authority not competent to pass any order or hold any selection, conducting any such selection procedure will be void ab initio. In this regard, the learned counsel for respondents has placed her reliance in the case of Union Territory of Chandigarh v. Dilbagh Singh, 1993 (2) SCC 154 wherein it has been held by the Honble Apex Court that selectees have no right of appointment unless so provided by the Rules and cannot demand hearing if the cancellation is for bonafide and valid reasons. Here the condition not to complete the selection process and canceling the selection process seems to be taken on bonafide reasons and it is also not the case of applicants that any discrimination or pick and choose policy has been adopted by the respondents and few of them have been appointed baring the applicants.
13. The learned counsel for respondents also stated that the selection to the post of JE (II) is a technical post, and hence, if not selected by a proper authority, it may create problem in future. She stated that there is no violation of Principles of Natural Justice and relied her arguments in the case of Union of India v. Anand Kumar Pandey, 1994 (6) SCC 663 wherein it has been held by the Honble Apex Court that rules of natural justice cannot be put in a strait jacket as applicability of rules of natural justice depends upon the facts and circumstances relating to each particular given situation. Here in this case we find that the respondents have agreed to a bonafide mistake, which occurred due to administrative lapse, and accordingly, before completion of the entire selection process, they have cancelled the selection procedure.
14. The learned counsel for applicant has relied her contention on the decision taken in O.A No.235/2013 decided on 15.12.2014 by this Bench and states that the similar issue was involved there in the O.A and the O.A has been partly allowed by this Bench, hence same view may be taken in this matter also. We have gone through the order passed by this Bench and found that the facts are not similar of that O.A to this O.A as there were some anonymous complaints were filed which were got inquired by the DRM. But after inquiry it was found that the complaints were vague. However, instead of that the respondents, without assigning any reason, cancelled the entire selection process. Hence, being aggrieved the successful candidates, they filed the O.A. Here the facts and scenario are different as it was found before the completion of entire selection process that the initiation of selection has been held by an unauthorized/incompetent authority. Therefore, after discovering these lacuna/shortcomings, the respondents cancelled the selection process. It is also settled principle of law that if any wrong is discovered at any point of time, it has to be rectified. Hence the moment respondents understood their fault/mistake, they have cancelled the selection process.
15. In view of the above facts and discussions above, we find that the respondents have not acted illegally as it seems to be their bonafide intention to rectify the mistake. Accordingly, the O.A lacks merit.
16. Thus, the O.A is dismissed. No order as to costs.
(Jasmine Ahmed) (G.P.Singhal) Judicial Member Administrative Member am/- 11 OA 201/00552/2015Page 11 of 11