High Court
Case Details
WP(C) 2303/2010 BEFORE HON’BLE MR. JUSTICE I.A.ANSARI HON’BLE MR. JUSTICE P.K.MUSAHARY JUDGMENT & ORDER(ORAL) (Ansari, J) The petitioners are Group ’C’ ministerial staff of N.F. Railways. A Comp etitive Departmental Examination was held pursuant to the notification, issued i n this regard, on 17.6.2005, for promotion to the post of Office Superintendent II ( in short, (cid:28)OS (cid:29)). While 80% of the total number of posts of O.S. are to be filled up, by regular promotion, from Group ’C’ ministerial staff, 20 % of the p osts of O.S. are required to be filled up by resorting to Competitive Department al Examination. 2. The Railways, as indicated above, invited applications for holdi ng Limited Competitive Departmental Examination for the posts, in question. By n otification, dated 17.4.2007, the total number of posts to be filled up was 63. A written test was accordingly held and the select list was published on 25.3.20 08. The select list contained altogether 37 names. Following their selection, al l the 37 selected candidates, including the present writ petitioners, were sent for training. However, out of 37 candidates, 34 candidates underwent the course of training inasmuch as 3 of the selected candidates got promotion in due course . On completion of their training, the selected candidates were released from th eir training centre, at Jodhpur, by an order, dated 13.7.2008, passed in this re gard. 3. When the petitioners, as selected candidates, were awaiting prom otional orders, they were shocked to learn that the entire process of selection, by holding Limited Competitive Examination, had been cancelled by an order, pa ssed, in this regard, on 28.7.2008, on the ground of various irregularities havi ng been committed in the process of selection.
Decision
4. Contending that there were no allegation against them of having indulged in any manipulation in the selection process and that they were being victimized by cancellation of their order of selection, the writ petitioners fil ed Original Application (in short, (cid:28)OA (cid:29)), which gave rise to O.A. No. 191 of 200 8. 5. In the O.A., the respondents contended that no selected candidat e can claim any indefeasible right to be appointed to the post to which he stand s selected for promotion. The respondents also pointed out that the Vigilance De partment of the Railways received complaints and investigation made by them reve aled that there were up-scaling of marks in case of some of the candidates and, in case of some of the candidates, there were overwriting in the marks and, thi s apart, even grace marks had been given to candidates ; whereas all these actio ns were impermissible in terms of guidelines and instructions issued by the Rai lways and as the Railways found, on the basis of the investigation conducted by the Vigilance Department, that the process of selection had been manipulated by resorting to various methods as indicated hereinbefore, it decided to cancel the select list and resort to a fresh selection process. 6. Rebutting the submissions, which were made on behalf of the Rai lways, the petitioners contended that they were not served with any notice dire cting them to show cause against the Railways’ decision to cancel the select lis t and the cancellation of the select list was, thus, arbitrary, unreasonable and irrational, particularly, when there was no allegation that the process of sele ction was manipulated by the petitioners. 7. Having, however, come to the conclusion that irregularities in t he process of selection had indeed, crept in, and mischief of manipulation of se lection process was pervasive in nature and the manipulation of the selection pr ocess had made it difficult to pick out the persons, who could be said to have b een lawfully selected, the giving of the show cause was, in such a situation, no w sine qua non and the only way out was to cancel the whole selection process an d that is what the Railways have done. The learned Tribunal also concluded that having regard to the facts as discussed hereinbefore, cancellation of the select ion process can not be called infirm and does not, therefore, require any interf erence. 8. With the decision so reached, the learned Tribunal dismissed the O.A. by its order, dated 11.1.2010. Aggrieved by the decision, which was so arr ived at by the learned Tribunal, the present writ petitions have been filed by s ome of those persons, who had approached the learned Tribunal. 9. We have heard Mr.M.K.Choudhury, learned senior counsel, appearin g for the petitioners, and Mr.U.K.Nair, learned Standing Counsel, Railways, appe aring for the respondents. 10. While considering the present set of writ petitions, what we sho uld bear in mind is that though by filing the present writ petitions, under Arti cle 226 of the Constitution of India, the petitioners, essentially, seek issuanc e of writ, in the nature of certiorari, interfering with the order of the learne d Tribunal, the fact of the matter remains that Article 226 provides public law remedy. Though promotion, generally, concerns an individual, the fact remains t hat the promotion, in a public sector or Government department, is governed by the constitutional scheme of public employment. The process of selection, therefore, in a public undertaking, su 11. ch as, Railways, has to be fair, transparent and above suspicion irrespective of the fact as to whether the selection process relates to direct recruitment or p romotion. Public faith and confidence, in a selection process, which the State c onducts, has to be retained by the State; or else, the rule of law will be the c asualty. 12. It cannot, therefore, be contended, as is sought to be contended on behalf of the petitioners, that the matter of promotion, in public undertaki ng, is only an individual’s concern and there is no public interest involved. In fact, had there been no element of public interest involved, the petitioners co uld not have approached this Court by taking recourse to Article 226. Coming to the dominant contention of the petitioners that they h 13. ad not been served with any notice to show cause before their selection was can celled, it needs to be pointed out that the petitioners approached the learned Tribunal, with O.A.No. 191/2008, contending, interalia, as already mentioned ab ove, that they had not been served with any notice to show cause before their se lection was cancelled. In response thereto, the Railways placed before the learn ed Tribunal various infirmities, which the selection process had suffered from. It is of great significance to note, now, that the correctness a 14. nd/or veracity of the allegations, which had been made by the Railways, were not questioned by the petitioners. The contention of the petitioners, therefore, th at Railways did not produce any documentary evidence to show manipulation of sel ection process does not hold water, particularly, when the petitioners have not challenged the respondents’ stand that there was up scaling of marks in the case of some of the candidates, that there were over-writings in the marks allotted, but the same did not bear the signature of the examiners or giving of grace mar ks, though according to the guidelines and instructions, issued by the Railways, up-scaling of marks, or over-writing or giving of grace marks are impermissible . 15. It is, admittedly, contrary to Railway’s instructions and guidel ines that up-scaling of marks was made, the numbers were interfered with and ove r written and grace marks were allowed to the candidates. This has shown that th e selection process had been manipulated and, in these circumstances, when the r espondents took the decision to cancel the selection process, the decision canno t be said to be arbitrary, irrational, unreasonable or devoid of merit. 16. It has been contended before us that the Railways’ guidelines/ci rcular permit correction or modification the selection list, and in the case in hand, when there is no specific allegation against any of the selected candi dates, cancellation of their selection was highly illegal. In this regard, it should be noted that in its order, dated 11.1.2010, which stands impugned in this writ petition, the learned Tribunal has considered various possible combi nation of facts and circumstances, whereby manipulation of the result of the sel ection process could have had the effect of altering the result or the outcom e of the selection process. In fact, the exercises, which have been shown, thoug h hypothetical in nature, clearly show that even a person, who stands included in the selection list, ought to have been out of the select list. When the selected candidates have no indefeasible right to clai 17. m promotion on the basis of the select list and when there was, admittedly, mate rials available with the respondents showing manipulation of the selection proc ess by various methods, which have been resorted, the respondents cannot be said to have no good reason for deciding to rescind the select list and direct sele ction to be held afresh. 18. Coupled with the above, it is also worth pointing out that even if the situation gave rise to two possible effects, one of which is that the emp loyer can upheld the selection process and other is that they declare the select ion process as unfair, the Court would not, in exercise of its extra ordinary ju risdiction, under Article 226 of the Constitution, interfere with the decision of the employer unless the decision is found to be wholly irrational, arbitrary and illegal. 19. We have carefully gone through the record of the selection proce ss and we are satisfied, in the light of what have been discussed above, that th e Railway had good reason for deciding to cancel the selection process and to go ahead with the selection process afresh. We do not find that the decision of t he Railways suffers from any infirmity, legal or factual. 20. Because of what has been discussed and pointed out above, we do not find any merit in the writ petitions . 21. t petitions fail and the same shall accordingly stand dismissed. In the result and for the reasons discussed above, all these wri 22. No order as to costs. Considering the fact that the Limited Departmental Competitive E 23. xamination, which had to be interfered with, we are of the view that the respond ents shall expeditiously hold the Limited Departmental Competitive examination a fresh and complete the exercise, preferably, within a period of 3 months from to -day. 24. We further direct that, in the light of the decision, which we h ave reached above, and the consequential direction, which we have passed herein, the interim directions, passed in the writ petitions, from time to time, shall accordingly stand vacated. 25. With the above observations and directions, these writ petitions shall stand disposed of.