Central Administrative Tribunal - Kolkata
Dulal Das vs Eastern Railway on 16 November, 2023
1 TA 01/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
T.A. 350/0001/2022
DATE OF HEARING : 06.09.2023
DATE OF JUDGMENT: 16.11.2023
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
1. Dulal Das, son of Lakshmi Narayan Das, residing at Sarba
Pally, Post Office- Nona Chandan Pukur, Police Station- Titagarh,
District- North 24 Parganas, Kolkata-700122.
2. Jayanta Pal, son of Siddheswar Pal, residing at village-
Burigran, Post Office- Balarambati, Police Station- Singur,
District- Hooghly, Pin- 712409.
3. Subash Chandra Sethi, Son of Nari Sethi, residing at Village
and Post office- Penthapal, Police Station- Pattamundai, District-
Kendrapara, Odisha, Pin- 754240.
4. Ujjal Samadder, son of Dhirendra Nath Samadder, residing
at 58/C, West Kodalia, Post Office and Police Station- New
Barrackpur, District- North 24 Parganas, Kolkata- 700131.
5. Arun Kumar, son of Rajendra Prasad, residing at Ram
Bhawan, Sangat Mahalla, Post Office and Police Station-Garhwa,
District- Garhwa, Jharkhand, Pin- 822114.
.............Applicants
VS.
1. Union of India, service through the Secretary, Ministry of
Railways, having its office at Federation of Railway Officer's
Association Office, 256-A, Rail Bhavan, Raisina Road, New Delhi-
110001.
2. The Railway Board, service through the Chairman, The
Railway Board, having its office at Federation of Railway
2 TA 01/2022
Officer's Association Office, 256-A, Rail Bhavan, Raisina Road,
New Delhi-110001.
3. The Deputy Director-II/E (ENG), Railway Board, having its
office at Federation of Railway Officer's Association Office, 256-
A, Rail Bhavan, Raisina Road, New Delhi-110001.
4. The General Manager, Eastern Railways, having its office
at Fairlie Place, Kolkata-700001.
5. The Chief Personnel Officer, Eastern Railway, having its
office at Fairlie Place, Kolkata-700001.
.........Respondents
For The Applicant(s): Mr. D. Basak, Counsel
Mr. S. K. Datta, Counsel
For The Respondent(s): Mr. S. Banerjee, Counsel
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a) Issue a writ in the nature of Mandamus commanding the respondents, their men, agent and subordinates to rescind, withdraw, cancel and/or prevent from giving any effect or further effect to the letter dated 06.05.2016 No. E (NG)I-2014/PM1/19 by which the panel of Chief Law Assistant has been cancelled in which six RPF personnel qualified for the post (Annexure P-6 hereinabove);
b) Issue a writ in the nature of Mandamus commanding the respondents to declare the RPF personnel as Railway employee under section 10 of the Railway Protection Force Act, 1957;
c) Issue a writ in the nature of Mandamus commanding the respondents, their men, agent and subordinates to rescind, withdraw, cancel and/or prevent from giving any effect or further effect to the notification which has been published dated 27.05.2016 by which fresh applications have been invited for the post of Chief Law Assistant from amongst the serving eligible employees of Eastern Railway against 60% departmental quota adding that RPF/RPSF (Armed Forces) are not eligible to appear in the aforesaid selection;3 TA 01/2022
d) Issue a writ in the nature of Mandamus commanding the respondents to immediately consider the prayer of the petitioners for allowing them to appear in the viva-voce examination against the panel published through letter dated 13.04.2016 and to direct the respondents to act in accordance with law;
e) Issue a writ in the nature of certiorari calling upon the respondents and each of them to certify and remit the records of this case before this Hon'ble Court so that conscionable justice may be administered;
f) Interim order be passed by this Hon'ble Court directing the respondent authority not to proceed with the letter dated 27.05.2016 until the issue forming the subject matter of this writ application is decided by this Hon'ble Court;
g) Ad-interim order in terms of prayers (f) above;
h) Rule NISI in terms of prayers (a), (b), (c), (d) above;
i) Pass necessary orders as costs of and/or incidental to this application including legal expenses;
j) Pass such other and/or further order(s)/ direction(s) as this Hon'ble Court may deem fit and proper."
2.1 This application was transferred from Hon'ble High Court, Calcutta to the Central Administrative Tribunal at Kolkata Bench. It has been filed by the RPF personnel, working in different Division of Eastern Railway who applied for the post of Chief Law Assistant, for 60% Departmental promotion Quota in respect of 11 vacancies notified by Eastern Railway on 21.08.2015. 2.2 Written test was held for the selection on 12.03.2016. 13 candidates including the applicants herein were called for viva voce vide letter dated 13.04.2016. In the meantime , Railway Board issued a letter dated 06.05.2016 addressed to all zonal Railways clarifying that RPF personnel were not eligible for appearing in any general Departmental Competitive Examination for appointment to a higher post in the organisation. On 23.05.2016, Eastern Railway cancelled the selection process for CLA including the GDCE conducted earlier and on 27.05.2015, a fresh notification for GDCE for the post of CLA was published excluding the RPF Personnel from appearing in the selection. 4 TA 01/2022 2.3 The present petitioners initially filed a Writ Petition before the Hon'ble High Court at Calcutta numbered as W.P. No.- 10861 (W) of 2016. After the exchange of affidavits when the above writ petition came up for final hearing before His Lordship Hon'ble Justice Arindam Mukherjee then he was pleased to pass an order for transferring the aforesaid writ petition before the CAT Kolkata Bench due to lack of jurisdiction, with a direction to dispose of the petition as early as possible by CAT Kolkata Bench. CAT Kolkata Bench renumbered the Writ Petition W.P. No. 10861(W) of 2016 to T.A. No.- 1 of 2022.
2.4 Some of the non-RPF personnel who were successful in the written examination held on 12.03.2016 approached before CAT Kolkata and CAT Kolkata after hearing both sides passed an order for segregating the RPF from the other successful candidates and also for publishing a fresh written test result conducting viva-voce etc. as are required to be conducted in terms of the prescribed selection procedure.
2.5 After passing of the CAT Kolkata Bench order the said panel dated 13.04.2016 was partly restored by the Eastern Railway and appointment to the post of CLA was given to the successful candidates debarring the RPF personnel.
3. Learned Counsel for the applicant submits that the post of CLA is a General Selection post based on the provision contained in Para 131 of IREM, Vol-I, 2009. As per para 131 of IREM Vol-1 2009, in the eligibility criteria there was no exclusion of RPF/RPSF for Law Assistant post. Also, as per Railway Board's letter dated 21/08/2001, the category of Law Assistant is excluded from GDCE Selection.
5 TA 01/20223.1 As per the applicant, this issue has been considered by the CAT Ahmedabad Bench in O.A. - 285/2012 in the case of Kalinath Pandey - vs- U.O.I. decided on 31/01/2014. In the said case, the applicant was a non RPF personnel challenging the appointment of RPF personnel to CLA post, which was rejected and the appointment of RPF personnel to CLA post was upheld. 3.2 Learned Counsel for the applicant further submits that para-131, Vol-1, 2009 IREM has not been corrected and/or amended with regard to Eligibility Criteria for selection to the post of CLA by excluding the RPF personnel prior to notification dated 06.05.2016. By Railway Board's circular RBE no. 26/21 dated 05.04.2021 of IREM Vol-1, Para 131 (1989 Edition), in its Advance Correctional slip, the Railway Board for the first time, modified the eligibility criteria for selection to the post of CLA, and specifically declaring RPF/RPSF ineligible to apply for the post of CLA. Since such specific modification was made only in 2021 without retrospective effect, it is implicit that it cannot be applied to the case which occurred in 2016.
3.3 Learned Counsel for the applicant relies on a judgement of Hon'ble Apex Court reported in (2011) 11 SCR 170 of Special Leave Petition (Civil) Nos. 9541 and 10945 of 2007 and 469 and 15231-32 of 2011 decided on 06.09.2011 in Govt. Of A.P. and Ors. - Vs - Sri Sevadas Vidyamandir High School and Ors. where it was held that in a selection process the appointing authority cannot change the rule of game midway, particularly when the written and viva-voce tests were already held and the applicants were declared qualified. He further submits that North-Central Railway & North- East Railway have appointed RPF personnel to the post of CLA even after 6 TA 01/2022 RBE-47/2016 and the present petitioners being similarly situated have legitimate expectation of being considered for the post of CLA as a one time exception, as even now there are 06 vacancies available for the post of CLA against 60% departmental quota.
4. Per contra, Learned Counsel for the respondents submits that the result of the written test was published on 13.04.2016 where the petitioners figured in the select list. But in the meantime, Railway Board published a circular dated 06.05.2016 vide RBE No. 47/2016 in which it has been clarified that RPF/RPSF personnel are not to be allowed for appearing in any of the departmental selection for promotion in the department other than RPF/RPSF. The decision of the Railway Board was in consonance with the observation made by Central Administrative Tribunal, Principle Bench, the Hon'ble High Court of Andhra Pradesh and Hon'ble High Court of Rajasthan as mentioned in the said Railway Board Circular No. RBE 47/2016. In the said circular, it has, however, been clarified that in cases where RPF/RPSF candidates have been allowed to appear but the selection has not yet been finalized, the selection process should be cancelled. In view of the aforesaid circumstances, the Railway Administration had cancelled the selection process vide their letter dated 23.05.2016. Thereafter, further notification was issued vide letter dated 27.05.2016 for holding the selection afresh excluding the RPF/PRSF personnel.
4.1 Learned Counsel for the respondents further submits that the petitioners are the members of Armed Force of Union and as per judgement of several High Courts and CAT Benches including the CAT/Principal Bench, 7 TA 01/2022 they are categorized differently from other Railway Employees holding civil posts. The hierarchy of promotion of the petitioners is different from that of the Railway Employees holding civil posts just as the Railway Employee holding civil posts cannot be considered for promotion to posts for RPF/RPSF, the petitioners being member of Armed Force of Union cannot be considered for promotion in General Departmental Competitive Examination. If in the past any RPF/RPSF personnel have been allowed to apply for promotion and subsequently appointed in civil posts, the same had been wrongly done. Such wrong will not vest any right to the petitioners to be promoted to any civil posts. Railway Administration has taken the decision based on the judgement of Hon'ble Courts and Hon'ble CAT Benches including the Hon'ble CAT/Principal Bench. The Railway Administration had rightly cancelled the selection procedure and issued notification for fresh selection excluding the members of RPF/RPSF. He further submits that in OA No. 350/01146 of 2018, MA 350/0849 of 2018, MA 350/0431 of 2019 in CAT, Kolkata Bench passed an order on 05.07.2019 allowing the present selection for Chief Law Assistant to be concluded logically in accordance with law, segregating the RPF from the written tests result.
4.2 In a similar case, the Hon'ble High Court, Patna dated 18.05.2017 in Civil Writ Jurisdiction case No. 3994/2017 upheld the order of Patna CAT reverting the petitioner from the post of Law Assistant. Against this order, an SLP was filed before the Hon'ble Supreme Court of India which was also dismissed vide order dated 12.05.2022.
5. Heard the parties. Perused materials on record.
8 TA 01/20225.1 Petitioners have challenged the letter of Railway Board dated 06.05.2016 following which they have been excluded from the list of candidates eligible for selection as Chief Law Assistant in spite of the petitioners having cleared the written examination after being allowed to appear in the selection by the respondents. Railway Board's letter dated 06.05.2016 (RBE 47/2016) in its opening sentence states that "In terms of Railway Board's letter dated 11.08.2003, 24.03.2004 and 13.10.2004, RPF/RPSF personnel are not to be allowed for appearing in GDCE and other departmental selections for promotion in departments other than RPF/RPSF". Thus, the decision conveyed by the letter dated 06.05.2016 is a mere reiteration of the instructions on the subject issued in 2003 and 2004. 5.2 From the material on record, we find that CAT Patna Bench and the Hon'ble High Court at Patna have already decided the issue in favour of the respondents in Civil Writ No. 3994/2017, where the appointment of an RPF constable to the post of Law Assistant, subsequently redesignated as Chief Law Assistant was held to be ab-initio void in view of the respondents' policy of not permitting RPF/RPSF personnel to appear in GDCE or any other departmental selections for promotion in departments other than RPF/RPSF. This decision of Hon'ble High Court of Patna was challenged in SLP No. 27773- 27774 of 2017 before the Hon'ble Supreme Court on 12.05.2022. Thus the matter has attained finality having been adjudicated by the highest court of the land. We are bound by the decision of the Coordinate Bench at Patna, upheld by the Hon'ble High Court at Patna and the Hon'ble Supreme Court. 9 TA 01/2022 5.3 In view of the above, in our considered opinion, there is no legal infirmity in the letter of the Railway Board dated 06.05.2016 and in the respondents' decision to exclude the RPF/RPSF personnel from the list of eligible candidates for selection to the post of CLA as the petitioners' participation in the selection process for CLA's post was ab-initio void in view of the respondent policy laid down in letters dated 11/08/2003, 26/03/2004 and 13/10/2004.
6. OA is devoid of merit and stands dismissed. No costs (Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl 10 TA 01/2022