Rajasthan High Court - Jaipur
Union Of India And Anr vs C A T Jaipur And Anr on 9 April, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. CIVIL WRIT PETITION No.4911/2012
Union of India & Ors. vs. CAT & Anr.
2.1. D.B. CIVIL WRIT PETITION No.15393/2011
Union of India & Anr. vs. CAT & Anr.
3. D.B. CIVIL WRIT PETITION No.15932/2011
Union of India & Ors. vs. Ram Kishore & Anr.
Date of order : 09/04/2013.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
HON'BLE MRS. JUSTICE NISHA GUPTA
Shri Shailesh Prakash Sharma for the petitioners in CW No.4911/12.
Shri Aslam Khan for the petitioners in CW No.15393/11
Shri P.C. Sharma for the petitioners in CW No.15932/11
Shri Shiv Singh Ola )
Shri C.B. Sharma ) for respondents.
****** These three writ petitions are directed against the judgement of the Central Administrative Tribunal. While in D.B. Civil Writ Petition No.15932/2011, Union of India & Ors. vs. Ram Kishore & Anr. and D.B. Civil Writ Petition No.15393/2011, Union of India & Anr. vs. CAT & Padam Singh Verma, under challenge is the common judgement dated 12.7.2011, whereas in the D.B. Civil Writ Petition No.4911/2012, Union of India & Ors. vs. CAT & Guru Dayal Prajapat, challenge is made to the judgement dated 5.1.2012, which is based on the earlier judgement.
The respondents Ram Kishore, Padam Singh Verma and Guru Dayal Prajapat in all these writ petitions were appointed in Group-D as Class-IV in Indian Railways. They appeared in the selection test held for the post of Clerk-cum-Typist under 16-2/3% Limited Departmental Competitive Examination and were declared pass in written examination. While Ram Kishore and Padam Singh Verma were promoted on the post of Clerk-cum-Typist on 1.8.2007 in the pay scale of 3050-4500 (RSRP), Guru Dayal Prajapat was promoted on the post of Clerk-cum-Typist on 28.7.2008 in the pay scale of 3050-4590 (RSRP). However, a condition was imposed in their promotion order that they will have to clear the typing test within a period of two years. After promotion, they started discharging duties of Junior Clerk in Group-C cadre. However, they failed to clear the typing test within two years. A notice was therefore served upon them to show cause as to why they should not be reverted back to Group-D cadre as they failed to qualify the typing test within two years. The respondents represented that they be granted further/additional chance to appear in the typing test. They also stated that some of their colleagues, who also like them could not clear the typing test within two years, yet they were promoted to higher post of Senior Clerk with permission to now clear the typing test. The respondents relied before the Tribunal the judgment dated 28.4.2011 in O.A. No.435/2010, Kamlesh Kumari vs. Union of India & Ors. in which the Tribunal allowed the original application of Kamlesh Kumari granting her additional chance to clear the typing test. According to order dated 21.6.2010 (Annexure-R/3) filed with reply to the writ petition no.15932/2011, Kamlesh Kumari failed to qualify the typing test in five consecutive opportunities and ultimately after the order of the Tribunal granting her sixth opportunity, she qualified the typing test. The Tribunal has allowed the original application filed by all the three respondents herein directing the petitioners to grant them fourth chance to qualify the typing test and if they are declared successful, they should be continued as Clerk-cum-Typist. However, it was further held that if they fail to pass the typing test, the writ petitioners would be free to give effect to the reversal order passed in their case.
Shri Shailesh Prakash Sharma, learned counsel for petitioners in CW No.4911/2012 submits that already three chances were availed of by Guru Dayal Prajapat in whose case the judgement was passed by Tribunal on the basis of earlier judgement of Tribunal dated 12.7.2011 in O.A. Nos.118/2011 and 123/2011 filed by other two respondents namely; Ram Kishore and Padam Singh Verma. The case of Kamlesh Kumari was distinguishable because she was appointed in handicapped quota in the year 2000 and at that time there was no condition as to the number of chances for passing typing test. Learned counsel referred to order dated 6.6.2008 (Annexure-R/1) filed with reply to writ petition no.4911/2001 and submitted that in note no.2 thereof mention is made of sub-para 4 of para 3 of notification dated 12.10.2007 laying down the condition that the typing test would be passed in two years.
Shri Shailesh Prakash Sharma, learned counsel for the petitioners further argued that the Hindi typing test conducted by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi in case of respondent-Guru Dayal Prajapat shall have no relevance for the purpose of confirmation in the service of petitioners-railways, which is a separate department and has got its own recruitment policy and rules. The Tribunal ought not to have directed for consideration of the aforesaid certificate issued by that Department in the case of respondent-Guru Dayal Prajapat.
Shri Aslam Khan, learned counsel for petitioners appearing in the case of respondent-Padam Singh (CW No.15393/11) argued that the Tribunal in the present case has directed that fourth chance should be granted to the respondent-Padam Singh Verma whereas the petitioners by filing review petition before the Tribunal clarified that already four chances were availed by Padam Singh, even then the Tribunal has rejected the review petition without deciding the same on merits by only relying on the judgement of the Supreme Court in Ajit Kumar Rath vs. State of Orissa-(1999) 9 SCC 596 holding that the judgement in Original Application does not suffer from any error apparent on the face of record. It was argued that if the respondent is allowed to avail fourth chance, this will give rise to similar claims by other candidates, who have also failed to clear the typing test within two years despite availing three chances.
Shri P.C. Sharma, learned counsel for the petitioners in the case of respondent-Ram Kishore argued that case of Kamlesh Kumari was wholly distinguishable. He in this connection referred to orders Annexure-R/1, R/2 and R/3 dated 14.6.2011, 6.7.2011 and 21.6.2010 respectively issued in the case of Kamlesh Kumari and submitted that she was appointed in 2000 at the time when there was no restriction as to the time and number of chances to appear in the typing test. Besides, she was appointed in Handicapped quota, whereas the respondents were promoted in Limited Departmental Competitive Examination quota. Learned counsel also submits that respondent-Ram Kishore was already awarded four chances. The Tribunal ought not to have therefore allowed the application directing the petitioners to grant him fourth chance.
Shri C.B. Sharma and Shri Shiv Singh Ola learned counsel for the respondents opposed the writ petitions and submitted that there was no difference between the case of the respondents and that of Kamlesh Kumari, who was, in fact, allowed seven chances, but on one of the occasions, the examination was cancelled, therefore, she was allowed additional chance, in which she qualified. It is argued that the fact that she was directly appointed in Handicapped quota would not make any difference because this was only a mode of recruitment. Like her, the respondents were also promoted on the post of Junior Clerk, may be on condition of passing the examination in Limited Departmental Competitive Examination quota. It is argued that in the case of Ram Kishore and Padam Singh Verma Verma, the Tribunal has merely allowed them fourth chance to appear in the typing test and has directed that the petitioners would be free to give effect to the reversal order if they fail to clear the same. It was argued that as regards respondent-Guru Dayal Prajapat, he has appeared in the Hindi typing test conducted by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi and therefore he should have been exempted from appearing in typing test and it should be taken as sufficient compliance. The Tribunal has while granting him fourth chance also alternatively directed that his certificate of clearance of typing test conducted by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi may be considered.
Learned counsel for the respondents further argued that in the case of Padam Singh Verma, though the review petition was filed by the petitioners before the Tribunal claiming that he had already availed of four chances, but in para 4.5 of their reply to original application, the petitioners themselves mentioned that out of four chances, the respondent Padam Singh was absent in one opportunity and therefore actually he availed of only three chances. The same was position in the case of Ram Kishore with regard to whom also in review petition filed in the case of Padam Singh, the petitioners have admitted in Ground-C of review petition that Ram Kishore did not avail of the fourth chance due to sickness. It is argued that the order passed by the Tribunal is just and proper and does not call for interference by this Court.
We have given our anxious consideration to the rival submissions and perused the material on record.
What is evident from the stand of the petitioners is that in para 4.5 of the reply to the original application filed before the Tribunal, they asserted that four opportunities were granted to the respondent Padam Singh Verma, in one of which he was absent. Similarly in the case of Ram Kishore, it was mentioned in the review petition that he was granted four opportunities, but he has not availed fourth chance due to sickness. If that is the case of petitioner-railways that they on their own have been allowing four chances to others and the respondents, there is no reason why fourth chance should not be allowed to respondent-Guru Dayal Prajapat. Moreover, the petitioners have allowed such opportunity on as many as six occasions to Kamlesh Kumari, whose judgement has been relied by the Tribunal in the case of all three respondents. As regards the contention that the Tribunal should not have directed to consider the certificate of passing the Hindi Typing Test by Guru Dayal Prajapat issued by Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi, suffice is to observe that, that direction is not a positive direction, but an alternative direction and therefore the petitioners have not been mandatorily required to exempt the respondent-Guru Dayal Prajapat from clearing the typing test. It is only that while allowing his original application, the Tribunal has left it open to the petitioner-railways to either provide him fourth chance to clear the English typist test as per his option or consider the said certificate of clearance of Hindi typing test issued by the Government of India, Ministry of Home Affairs, Department of Official Language, Hindi Teaching Scheme (Exam Wing), New Delhi. If the petitioners do not choose to accept that certificate, which, in fact, they are contesting before this Court, then it would mean that they will be required to grant fourth chance to the respondent-Guru Dayal Prajapat too along with respondents Ram Kishore and Padam Singh Verma to appear in the typing test.
In view of aforesaid discussion, we are not inclined to interfere with the judgements passed by the Central Administrative Tribunal in the case of all the three respondents. We, however, reiterate that this fourth/additional chance which the respondents shall avail to pass the Typing Test, would be last one and no further chance shall be granted to them.
The writ petitions are accordingly dismissed, however, with the aforesaid observations.
RS/ (NISHA GUPTA),J. (MOHAMMAD RAFIQ), J.
All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.