Central Administrative Tribunal - Delhi
Satish Kumar Sharma vs Union Of India Through on 22 April, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2247/2014
Reserved on : 16.04.2015.
Pronounced on : 22.04.2015.
Honble Mr. Shekhar Agarwal, Member (A)
Honble Sh. Raj Vir Sharma, Member (J)
Satish Kumar Sharma, Aged-55 years,
S/o late Sh. N.L. Sharma,
Working as Welfare Assistant (Sports),in
Northern Railway, Muradabad Division,
Muradabad.
R/o T-43C, Double Story, Parker Road,
Railway Colony, Muradabad. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
The General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The General Manager (P),
Northern Railway, Baroda House,
New Delhi.
3. The Divisional Railway Manager,
Northern Railway, Muradabad Division,
Muradabad.
4. The Senior Divisional Personnel Officer,
Northern Railway, Muradabad Division,
Muradabad.
5. Sh. Nasir Kamal, Head TE/MB,
C/o Senior Divisional Personnel Officer,
Northern Railway, Muradabad Division,
Muradabad. .. Respondents
(through Sh. Shailender Tiwari and Sh. Manjeet Singh Reen, Advocates)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant initially joined Railways as Loco Cleaner on 06.05.1980. Subsequently, he got promoted to the post of Diesel Assistant on 16.11.1992 and further as Shunter w.e.f. 01.08.1993. On 13.10.1993, he was selected for the post of Welfare Assistant (Sports) as a result of selection conducted by the respondents. He was put on probation for one year which he completed successfully and his case was recommended for confirmation on 05.09.1995. The contention of the applicant is that there is only one post of Welfare Assistant (Sports) in Moradabad Division, which he was holding. However, the respondents have conducted the selection for this post afresh and appointed private respondent No.5 to this post whereas the applicant has been reverted to the post of Shunter under Chief Loco Inspector, Moradabad vide order dated 19.08.2014. Hence, he has filed this O.A. seeking the following relief:-
That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 1.7.2014 (Annex.A/1), order dated 26.11.2013 (Annex.A/2) and order dated 19.8.2014 declaring to the effect that the same are illegal, arbitrary and against the rules and consequently, pass an order allowing to the applicant to perform his normal duties to the post of Welfare Assistant (Sports) as per rules with all the consequential benefits.
2. The applicant has submitted that he had been appointed on this post on permanent basis by competent authority. He had successfully completed his probation. Hence, making a fresh selection on this post is totally illegal in the eyes of law. Further, he has submitted that this post is a general post, which as per Para 219(i) of the IREM Vol.I can be filled up only after holding a written test and viva voce. The respondents, on the other hand, have selected private respondent No. 5 only after conducting an interview. Thus, this selection is illegal. Moreover, the order of appointment of private respondent No. 5 says that he has been appointed as Sports Secretary whereas there is no such post. Even applications were not invited for the post of Sports Secretary during the selection process. The post of Welfare Assistant (Sports) had also not been re-designated or renamed as Sport Secretary. The applicant has also submitted that neither appointment as a Welfare Assistant (Sports) was promotion granted to him in the cadre of Loco Pilot nor any other benefits had been granted to him. He has also contended that he had been posted to this post by the respondent No.2 i.e. General Manager and, therefore, respondents No. 3 and 4 have no power to take any decision regarding his repatriation.
3. In their reply, the official respondents have stated that this O.A. deserves to be dismissed as the applicant had not exhausted departmental remedies before approaching the Tribunal. Moreover, he had himself appeared for the selection and could not qualify in the same. After having appeared in the test himself, he cannot now question its validity. In this regard they have relied on the judgment of Honble Supreme Court in the case of Ramesh Chandra Shah & Ors. Vs. Anil Joshi & Ors., 2013(2)AISLJ 377 in which the following has been held:-
24. By having taken part in the process of selection with full knowledge that the recruitment was being made under General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the Ld. Single Judge and Division Bench of High Court committed grave error by entertaining the grievance made by the respondents 3.1 The official respondents have also relied on the following judgments on the same issue to say that the applicant had participated in the same selection but did not find place in the panel and cannot now question the selection process itself:-
(i) Virender K Verma Vs. PSC Uttrakhand & Ors., (2011) 1 SCC (L&S) 21 (Para 25 to 28).
(ii) P.S. Gopinathan Vs. State of Kerala, (2008) 7 SCC 70 (Para 44).
(iii) UOI & Ors. Vs. S. Vinod Kumar & Ors., (2007) 8 SCC 100 (Para-18).
(iv) K.H. Siraj Vs. High Court of Kerala & Ors., (2006) 6 SCC 395 (Paras 72 to 74).
(v) Manish Kumar Shahi Vs. State of Bihar & Ors., (2011) 1 SCC(L&S) 256.
(vi) Madan Lal Vs. State of J&K, (1995) 3 SCC 484.
(vii) Marripati Vs. Govt. of A.P., (2007) 11 SCC 522.
(viii) Dhanjay Malik Vs. State of Uttranchal, (2008) 4 SCC 171.
(ix) Amlan Jyoti Barooah Vs. State Assam, (2009) 3 SCC 227).
(x) K.A. Nagamani Vs. Indian Airlines, (2009) 5 SCC 515.
(xi) Raj Rishi Mehra Vs. State of Punjab, 2013(3)AISLJ SC 369.
3.2 They have further stated that the applicant has himself admitted in his letter dated 17.10.2014 that he was maintaining his lien on the post of Shunter, Moradabad Division. Hence, he cannot claim that he had been appointed on this post permanently. In fact, he was appointed only temporarily for one year but continued to work on the same uptill 2013 because he was selected four times for the said post and re-appointed. With their counter-affidavit, the respondents have also annexed orders dated 18.01.2006 and 01.08.2007 to demonstrate that the applicant had been re-appointed. They have also annexed the initial appointment letter of the applicant dated 13.10.1993, which shows that he was initially appointed on probation for one year.
4. The private respondent No. 5 has also filed his reply in which he has more or less adopted the averments made by the official respondents. He has further stated that the official respondents adopted the same criteria to fill this post as was adopted by them when the applicant was so appointed. The applicant himself had participated in the selection but was not selected. He is, therefore, not at liberty to question the selection procedure adopted by the official respondents. In this regard, Respondent No. 5 has placed reliance on the judgment of Apex Court in the case of Swaran Lata Vs. UOI & Ors., 1979(3) SCC 165 in which it has been held that:-
Where a candidate appears in a test and acquiesces in the process of selection for a post he cannot challenge the validity of the process of selection. 4.1 He also relied on the judgment of Honble Supreme Court in the case of Lokendra Kumar Vs. District Judge, 1996(7)SLR 423; Sachinandan Dey Vs. State of West Bengal, 2003(1) SLR 303; and Honble Punjab & Haryana High Court in the case of Amarjeet Singh Vs. State of Punjab, 2002(4)SLR 161 DB on the same issue.
5. We have heard both sides and have perused the material on record. The first ground taken by the applicant is that he was appointed permanently on this post and, therefore, the respondents should not have made a fresh selection on the same. We are not inclined to agree with the applicant in this regard for the following reasons:-
(a) The applicants appointment letter dated 13.10.1993 clearly states that he will seek further promotion in his parent cadre on his due turn. This shows that the applicant had not severed his links with his parent cadre.
(b) The respondents have stated in their counter that the applicant himself has admitted that he was holding lien on the post of Shunter in Moradabad Division.
(c) The applicant has himself stated that this was a general post not belonging to any cadre. Hence, no officer of any cadre can claim right to hold this post permanently.
(d) The respondents have annexed with their replies several orders regarding re-appointment of the applicant on the said post. This clearly demonstrates that selections for this post were held regularly in which the applicant was selected again and again. However, he failed in the last selection and hence respondent No.5 was appointed.
5.1 The next ground taken by the applicant is that the selection procedure adopted by the respondents was faulty inasmuch as they only conducted the interview whereas IREM provides for selection based on both written and viva voce test. The relevant Para of IREM reads as follows:-
(i) For general posts i.e. those outside the normal channel of promotion for which candidates are called from different categories whether in the same department or from different departments, the selection procedure should be as under:-
(i) All eligible staff irrespective of the department in which they may be working who satisfy the prescribed conditions of eligibility and volunteer for the post should be subjected to a selection which should consist of both written test and viva-voce test. 5.2 The respondents have disputed this contention of the applicant stating that this has been long standing practice of the department and selections have always been made on the basis of interviews conducted by Screening Committee. They have submitted that even the applicant was selected in this fashion. His re-appointment several times after that was also according to this procedure. Moreover, he had himself appeared in this selection process in which he was rejected. He, therefore, cannot now question this selection process having participated in the same himself. The respondents have relied on several judgments of the Apex Court mentioned in earlier part of this judgment in this regard.
5.3 We find merit in this contention of the respondents. There is no doubt that the applicant had himself participated in this selection process and had not succeeded. There is also no doubt that applicants earlier appointment as well as re-appointment were also through interview only. Under these circumstances, we do not find substance in the argument of the applicant.
5.4 The applicant had also argued that his appointment to the post had been made by General Manager and, therefore, he could not be repatriated by an authority subordinate to General Manager. We are not convinced by this argument. While, it is true that the applicant was initially appointed under the orders of the General Manager, the orders of his subsequent re-appointments produced by the respondents clearly reveal that they were issued by the DRMs office. Thus, it is apparent that the applicant was continuing on this post under orders of DRMs office. Hence, the applicant cannot claim that he cannot be repatriated by the same authority.
5.5 Lastly, the applicant argued that there is no post of Sports Secretary. He was working as Welfare Assistant (Sports) and there is only one such post which has never been re-named or re-designated. In reply to this, the respondents stated during the arguments that it was due to a clerical mistake that the appointment order of the respondent No. 5 mentioned the post to be that of Sports Secretary. Actually the post is that of Welfare Assistant (Sports) and this error shall be corrected shortly.
6. In view of the above, we do not find any merit in this O.A. and the same is dismissed. No costs.
(Raj Vir Sharma) (Shekhar Agarwal) Member (J) Member (A) /Vinita/