Central Administrative Tribunal - Kolkata
Shree Niwas Singh vs C L W on 3 January, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
O.A.No.350/1499/2018 Date of Order: 03.01.2023
Coram: Hon'bleMr.Jayesh V. Bhairavia, Judicial Member
Hon'bleMr.AnindoMajumdar, Administrative Member
Shree Niwas Singh, Son of D. Singh,
aged about 50 years, working for gain
as Senior Section Engineer/ELS/19(T&C)/
CLW/Chittaranjan, at present living at Rly.
Quarter No.17 Street No.61, Chittaranjan,
Railway Colony, CLW/Chittaranjan,
District - Burdwan-713331
........Applicant
- VERSUS-
1. Union of India, Service through the
General Manager, Chittaranjan Locomotive
Works, Chittaranjan, District - Burdwan-713331;
2. Chief Personnel Officer, Chittaranjan Locomotive
Works, Chittaranjan, District-Burdwan-713331;
3. Chief Electrical Engineer, Chittaranjan Locomotive
Works, Chittaranjan, District-Burdwan-713331.
........Respondents
For the applicant : Dr. Jaspal & Mr. N. Roy, counsel
For the respondents : Mr. P.N. Sharma, counsel
ORDER
Jayesh V. BhairaviaMember, Judicial Member The applicant has preferred this O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(a) Direction and/or order upon the respondent authorities to immediately furnish a fresh merit list considering the marks obtained in written test and viva- voce test having due intension on at least 15 marks in record of service;
(b) Direction and/or order upon the respondent authorities to immediately award the applicant his long overdue promotion alongwith his all promotional benefits since 2nd June, 2001 and immediately allow the applicant to officiate as Asst. Electrical Engineer;
(c) Direction/order, further or other Direction or order, as the Hon'ble Tribunal may deem fit and proper as well as to secure ends of justice." 2
2. Brief facts of the case as submitted by Learned Counsel for the applicant in the O.A. as well as in the written notes of arguments, are as under:-
2.1 The applicant, who was working at the material point of time as Assistant Lecturer, Technical Training Centre, Chittaranjan Locomotive Works (hereinafter referred to as CLW), appeared for written test held on 6th and 7th December, 2000 for promotion to the post of Assistant Electrical Engineer in Grade-B under 30% quota and was declared successful vide result dated 09.01.2001.
Out of 55 candidates who appeared in the selection test only 6 were qualified and the applicant's name was at Srl. No.5 of the list of successful candidates.
2.2 Thereafter viva-voce test was fixed to be held on 16.03.2001 for selection to the posts of Assistant Electrical Engineer but it was deferred to 19.03.2001.
2.3. It is stated that unfortunately the applicant was arrested on 12.01.2001 in connection with some criminal case relating to unnatural death of his wife and kept in police custody from 12.01.2001 to 14.03.2001. Since he was in police custody for more than 48 hours, he was placed under deemed suspension vide order dated 15.02.2001(Annexure A/3) from the date of detention i.e. 12.01.2001. His Suspension order was revoked subsequently vide order dated 22.03.2001 (Annexure A/4), but as a result of his detention in police custody in connection with a criminal case and due to his suspension, he was not called for the viva voce test held on 19.03.2001 for promotion to the post of Assistant Electrical Engineer.
32.4. Aggrieved by such action of the respondents, the applicant approached this Tribunal by filing O.A.No.402/2002 seeking appropriate relief. This Tribunal vide order dated 03.07.2002 directed the respondents to consider his representation for allowing him to appear in a supplementary viva-voce test as his suspension was revoked in the meantime.
2.5 Pursuant to the said direction, the respondents called him to appear in the viva-voce test and the applicant attended the test. However, his result was not published and he was intimated vide letter dated 30.09.2003 (Annexure A/10) that since he was involved in a criminal case, the result of his selection test has been kept in sealed cover under the rules and that the same would only be published after the decision of the criminal case.
Being aggrieved, the applicant had filed O.A before this Tribunal i.e. O.A.No.1090/2003. The said O.A. came to be disposed of by this Tribunal vide order dated 20.4.2004 (Annexure A/11) wherein this Tribunal considered the Railway Board's letter dated 21.9.1988 read with the letter dated 21.1.1993 which provides six monthly review of the cases of the employees who face the criminal prosecution /disciplinary proceeding and in spite of six monthly review the disciplinary/criminal case against the Railway servant is not concluded even after two years from the date of original selection/formation of original suitability list, in such a situation, the promoting authority may review the case of the Railway servant concerned provided he is not under suspension, to consider the desirability of giving him adhoc 4 promotion, and in the case of applicant the criminal proceeding was not concluded since long, this Tribunal had disposed of the said O.A. with a direction to the respondents to consider the case of the applicant for grant of adhoc promotion as per Railway Board's instructions referred in the order and communicate the decision/order subject to final outcome of final criminal case. 2.6. Pursuant to the aforesaid order passed by this Tribunal, the respondents have passed a detailed speaking order dated 29.07.2004 (Annexure A/12) whereby the request of the applicant that he should be granted ad hoc promotion, was rejected for the reasons that "due to his merit position achieved, does not come within the prescribed size of the panel and cannot be considered for an ad hoc promotion."
Being aggrieved, the applicant had again approached this Tribunal challenging the said speaking order dated 29.7.2004 by way of filing O.A.No.1033 of 2004 which was dismissed vide order dated 25.11.2004 (Annexure A/13).
2.7. Thereafter, vide order and judgment dated 11.3.2016, the applicant was acquitted by the Learned Additional District and Sessions Judge, 2nd Court, Asansol in the pending criminal case against him on 11th March, 2016. Upon getting the order of acquittal, the applicant, through his advocate, submitted his claim vide notice dated 15.11.2016 (Annexure A/14) before the respondents for grant of promotion since he was senior most at the relevant time in the panel of six candidates and he had fared well in the viva-voce test. 5 2.8. In the meantime, by way of application dated 18.11.2016, the applicant had also sought information with respect to existing rule applicable for the selection under LDCE against 30% quota for Electrical and under which rule one Shri M.K. Chatterjee, JE-1 got the first position in the combined merit list. Subsequently, he had also filed an appeal under RTI and sought information with respect of supply of certified copy of combined merit list and mark sheet of six candidates who appeared in the written test held on 6.12.2000 and viva-voce on 7.12.2000. In response to it, the competent authority had supplied the information of Combined Merit List of the six candidates including the details of marks obtained by them. The competent authority denied to supply the information relating to the promotion granted in favour of Shri M.K. Chatterjee since it is third party information. The second appeal came to be disposed of without supply of any information of Shri M.K. Chatterjee. At the same time, the respondents had conveyed to the applicant that rules for the selection of LDCE is available at IREM Vol. 1 Para 201 to 204 and Master Circular No. 68 which is available on Indian Railway Website as well as in the book.
Thereafter, since the claim of the applicant for grant of promotion was not considered he had approached this Tribunal by filing O.A. No. 1078/2017. The said O.A. was dismissed as withdrawn with liberty to file a fresh O.A. vide order dated 20.11.2017 (Annexure A/16). Accordingly, the present O.A. has been filed.
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3. Ld. Counsel for the applicant by referring to the grounds stated in the O.A. submits that it is the grievance of the applicant that due to pendency of criminal proceedings against him, he was not considered for his due promotion. However, after the applicant was acquitted from criminal case, he was not granted his long due promotion. Further, it is stated at the relevant time his viva voce examination was conducted on 19.12.2002 in accordance with the direction of this Tribunal by a Board different from the original comprising of the experts who conducted the viva voce test of other 5 persons. However, the respondents had granted promotion by way of adopting the pick and choose policy without considering the senior persons including the applicant. Therefore, the entire process of selection smacks of malafides. Hence, this O.A.
4. The respondents have filed written reply and written notes of arguments denying the claim of the applicant.
4.1. Learned counsel for the respondents further submits that against the notification for 30% quota of Group-B service for filling up 3 posts (UR-2 and SC-1), 82 employees had applied and out of these 55 Nos. of candidates appeared in the written test held on 06.12.2000 and 07.12.2000. Out of these 55 candidates only 6 employees were qualified for viva voce and the name of the applicant appeared at Sl. No.5 in the Combined Merit List of written test. Since the applicant was placed under suspension due to his involved in criminal case, he was initially not allowed to appear in the viva voce as per rules. 4.2 It is submitted by Learned counsel for the respondents that the applicant got bail on 14.03.2001 and requested the competent authority only on 17.03.2001 to allow him to appear in the viva 7 voce test. Since the application of the applicant was received by the CPO's office on 19.03.2001, the applicant could not be called for viva-voce on 19.03.2001 since he had not completed the pre- formalities for medical examination and as he was under
suspension. The order of suspension of the applicant was revoked on 22.03.2001 i.e. after the viva voce was over. Proceedings of selection was finalized excluding the name of the applicant vide letter dated 02.06.2001.
4.3. The respondents' counsel has stated that out of the 5 candidates who appeared in the viva voce test, two unreserved candidates were finally selected, namely Mr. N.K. Gangopadhyay and Mr. Arup Kumar Mitra who secured total marks i.e. 237 and 233 respectively (marks obtained in written test + viva voce).
The applicant was allowed to appear in the Supplementary viva voce test on 19.12.2002 as per order of this Tribunal dated 03.07.2002 in O.A.402/2002. The total marks for viva voce was
50. The learned counsel for the respondents pointed out that the applicant had scored a total of just 182 marks in the written test and even after adding the full marks of viva voce test, his total marks would come only to 232 marks which is admittedly less than the total marks obtained by the two successful candidates (UR), therefore, he could not be granted promotion. 4.4. It is stated by the respondents' counsel that as noted hereinabove, the applicant's case was finally decided by this Tribunal vide order dated 25.11.2004 which was not challenged before any 8 higher forum and thus the said order dated 25.11.2004 has attained its finality.
4.5. The applicant again approached this Tribunal by filing O.A.No.1078/2017 while allowing the applicant to withdraw the said O.A. and granting liberty to file a fresh O.A. this Tribunal vide order dated 20.11.2017 has mentioned that the point of limitation is kept open. Therefore, it is stated that the present O.A. is time barred since the issue relating to claim of the applicant for grant of promotion was as such considered by the respondents in the year 2004 itself and he was not found eligible even for adhoc promotion, in the speaking order dated 29.7.2004, it was specifically stated therein that upon supplementary viva, Combined Merit List was drawn in terms of proceeding of 8.1.2003 whereby one Shri M.K. Gangopadhyay, SE at Srl. No. 1 and Shri A.K. Mitra, SE (Design) at Srl. No. 2. The said two candidates having occupied the two unreserved posts consequently exhaust the panel. Therefore, there remains no unreserved post left to be filled by any other UR candidate.
4.6. Further, it was stated in the said speaking order that even after completion of applicant's supplementary viva, with his merit position achieved, he does not come within the prescribed size of the panel, which is of only two UR posts. In the said order, it was also categorically mentioned that subsequently another 30% selection has been held on 6.12.2003 and 7.12.2003 as the earlier panel of year 2000 had exhausted as above. The applicant had also appeared in the subsequent selection held on 6/7-12-2003 but 9 could not succeed. The LDCE panel were drawn according to merit and the applicant did not find place there. Based on the said facts as well as the terms of Railway Boar's letter dated 21.1.1993, the adhoc promotion is only allowed to the candidates who position in the selection panel/suitability list. Accordingly, the respondent authority denied the claim of the applicant for grant of even adhoc promotion.
4.7. Ld. Counsel vehemently submitted that the reason assigned by the respondents for non-grant of ad hoc promotion including the factual matrix as averred in the said order that the applicant failed to come within the prescribed size of the panel as per the combined merit list even for regular promotion, this Tribunal dismissed the O.A. of the applicant vide order dated 25.11.2004 (Annexure A/13 refer). Thereafter, the applicant has not challenged the said order and same has attained finality. Therefore, it is not open for the applicant to raise any grievance with regard to non-grant of promotion with respect to selection of the year 2000 as well as in light of the order passed by this Tribunal dated 25.11.2004. Therefore, the applicant is not entitled to any relief as sought for in this O.A. 4.8. In addition to the aforesaid submission, Ld. Counsel for the respondents also argued that the applicant has not stated any reason for filing of this O.A. belatedly that too without any application for condonation of delay and as such the O.A. is barred by Section 21 of the AT Act, 1985. In this regard, the respondents' counsel have averred that the applicant neither 10 explained the abnormal delay of long 12 years nor filed any M.A. seeking condonation of delay. The Learned Counsel has relied upon the order of Principal Bench of this Tribunal in O.A.No.3850 of 2015 dated 16.10.2015 (Anju Verma vs. Dy. Director of Education) wherein the application of the applicant was dismissed solely on the ground of limitation.
Learned counsel for the respondents has also relied on the judgment in Basawaraj & Another vs. The Spl. Land Acquisition Officer [(2013) 14 SCC 81] wherein the Hon'ble Supreme Court held that "The Court has no power to extend the period of limitation on equitable grounds." and submitted that this O.A. is liable to be dismissed on the ground of limitation as well as on merits.
5. The applicant has filed a rejoinder to the reply filed by the respondents reiterating almost the same as mentioned in the O.A. Additionally, he has stated in the rejoinder that it was a mala fide intention of the CLW administration to deprive him and promote a junior fellow in his place. The applicant has further stated that he had to chase continuously to get permission to appear in the viva voce.
It is submitted by the applicant that he made an appeal to the GM/CLW on 16.02.2004 to re-evaluate his answer script but his request was unheeded. He also tried to collect necessary documents including the marks of viva voce test through RTI but failed. Finding no other alternative he was compelled to file one after another application before this Tribunal. Ld. Counsel by referring to his written notes filed before this Tribunal would submit that the two candidates namely Shri N.K. Gangopadhyay and Shri A.K. Mitra were selected 11 in violation of the rules without considering the marks of the written examination whereas viva voce and service record etc. which accounts for 50 marks, such encroachment in the mid selection process is completely banned by the order of DoP&T as well as law laid down by Hon'ble Apex Court in Civil Appeal No. 7721 of 2021 (Madhya Pradesh PSC v. Bakawale & ors.) as it was held therein that once the selection process is started no alteration in the selection process is allowed. Further, it is stated that as per the provision of Railway Establishment Rules the case of applicant for grant of promotion was kept in sealed cover due to pendency of criminal proceedings, in such circumstances denial of his claim on the ground of non-positioning in the panel due to less merit does not come and same ought not to be considered.
He submits that though M.K. Chatterjee got highest number/marks in written test, he was not considered for promotion, therefore, the respondents have adopted pick and chose policy. By referring to the order passed by CAT, Principal Bench in O.A. 1925 of 2013 and other connected matters in the case of Praveen Srivastava v. UPSC dated 29.8.2014, by referring to the judgment passed by Hon'ble Apex Court in the case of K. Manjushree v. State of Andhra Pradesh AIR (1991) SCW 2314 it was held that a selection criterion has to be adopted and declared at the time of commencement of the recruitment process.
Therefore, it is stated that the respondents have not followed fair procedure with respect to selection process for promotion to the post of AEE for the vacancy year 2000.
6. Heard Learned Counsel for both sides and perused the materials on record.
7. It can be seen that for the formation of a panel for the post of AEE against 30% quota in Gr. 'B' as per respondent's letter dated 20.5.2000 the 12 applicant along with other candidates undisputedly appeared in the written examination held on 6.12.2000/7.12.2000 against 2 UR vacancies for the post of AEE. As a result of written test, 6 candidates secured qualifying marks to appear in viva voce and their names were notified by the respondents vide letter dated 3.1.2001 wherein the name of the applicant was placed at Srl. No.
5. It is not in dispute that in the said written test the applicant had secured 182 marks. As noted hereinabove, except the applicant other successful candidate in written test were allowed to appear for viva voce test since the applicant herein was under suspension at the relevant time. Subsequently, in compliance of the directions issued by this Tribunal the applicant was also allowed to appear in supplementary viva voce test by the respondent. Two unreserved candidates were finally selected, namely Mr. N.K. Gangopadhyay and Mr. Arup Kumar Mitra who secured total marks i.e. 237 and 233 respectively (written test + viva voce marks).
The learned counsel for the respondents pointed out that the applicant had scored a total of just 182 marks in the written test and even after adding the full marks of viva voce test (50 marks), his total marks would come to 232 only and which is less than that of the two successful candidates(UR) and such fact has not been denied by the applicant. The grievance raised by the applicant in earlier round of litigation, more particularly, in O.A. No. 1033/2004 being aggrieved with the speaking order dated 29.7.2004 wherein the merit position and non-inclusion in prescribed size of panel with respect to LDCE 2000 for 2 UR post of AEE was made known to the applicant as well as his subsequent participation in another LDCE held in the year 2003 with respect to vacancy of the year 2003, the said O.A. came to be dismissed and had admittedly attained finality. At the same time, the panel for the year 2000 was admittedly exhausted and subsequent another 30% selection has been held in the month of 13 December 2003 wherein the applicant has participated and failed to qualify. Under the circumstances, it can be seen that the result of written test of the year 2000 and after the candidate who secured highest marks had been considered for appointment by the respondents for the post of AEE and the panel was exhausted long back. There is no rebuttal to the submission of the respondents that applicant had obtained total 182 marks in written test and even if he had been allotted full 50 marks of viva voce then also he could not have secured more marks that the candidates who have been selected. Therefore, the submission of the applicant that after he got acquitted in the year 2016, his case should be considered for promotion for the exhausted panel for the year 2000 is not tenable. The applicant's claim that he was the 2nd most senior in the list of successful candidates in the written examination is also not tenable as the final selection was made on the basis of the marks obtained by the candidates in the written examination, viva voce and service records.
8. Further, it is apt to mention that the applicant that on one hand submits that his viva voce was conducted by a Board different from the one who conducted the viva voce of other 5 successful candidates and on the other hand he is blaming the same expert selection committee by saying that they had not considered the candidature of Mr. M.K. Chatterjee and Mr. Judhishir Plata Singh who were in higher merit positions in the written test and the entire selection process/promotion suffers from malafide, the said attempt on the part of the applicant fails miserably.
9. The Learned Counsel for the applicant relied upon the judgment of the Hon'ble Apex Court in case of Union of India Vs. K.V. Janakiraman (1991)4 SCC 109 whereby promotion of junior persons were set aside, but the said judgment of Hon'ble Supreme Court is not applicable to the present case 14 as in the present case promotion was given not on the basis of seniority but on the basis of the marks obtained by the candidates in the written test, viva-voce and service record.
The applicant's counsel has further relied on some other judgments of Supreme Court such as Ramjit Singh Kardam & Others Vs. Sanjeev Kumar & Others [Civil Appeal No.2103 of 2020 arising out ofSLP(Civil)No.35373 of 2013]and Madhya Pradesh Public Service Commission Vs. Manish Bakawale & Others [Civil Appeal No.7721 of 2021 arising out of SLP(Civil) No.5792 of 2022 ] wherein it was held that selection criteria cannot be modified altered, amended or changed once the selection process started. However, in the present case the applicant failed to substantiate that the respondents have changed any of the rules of selection in the midway of selection process by placing any material on record. Therefore, such plea of the applicant is not acceptable. Even otherwise, the applicant has not rebutted the mode & method of selection in its earlier litigation. Not only that as noted hereinabove, having failed in the merit position with respect to LDCE held in the year 2000, he had taken chance to qualify in subsequent LDCE in the year 2003. However, unfortunately he remained unsuccessful.
Further, it is apt to mention that the respondents had categorically stated that after completion of viva-voce the applicant does not come within the prescribed size of panel with respect to LDCE of 2000 and the panel was exhausted. Thereafter, subsequently, the applicant herein participated in selection process in respect to LDCE 2003 held on 6/7-12-2003 but failed to qualify. The applicant herein has not rebutted the said fact. The applicant has also not denied the fact that his grievance for non-grant of promotion/adhoc promotion was declined by the respondents vide speaking order dated 15 29.7.2004 mainly on the ground that he was outside the panel size and being aggrieved with the said decision the O.A. filed before this Tribunal being O.A. No. 1033 of 2004 came to be dismissed and same has been stated to have attained finality. Therefore, we do not find any justification in the claim of the applicant for grant of promotion in respect to exhausted panel of vacancy of 30% quota held by way of LDCE in the year 2000.
10. In view of the foregoing discussions, we find that the issue with regard to consideration of claim of the applicant for grant of promotion in 2001 has attained its finality. It is also not in dispute that the applicant appeared in the subsequent selection process in the year 2003 and 2004 but remained unsuccessful. We do not find any infirmity or illegality in the selection process for filling up the vacancies of Assistant Electrical Engineer under 30% quota. Accordingly, the O.A. is dismissed being devoid of any merit. No costs.
(AnindoMajumdar) (Jayesh V. Bhairavia) Administrative Member Judicial Member sb