Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P(C) No.23282 OF 2016, W.P(C) No.27295 OF 2017 AND W.P(C) No.27293 OF 2017 In the matter of applications under Articles 226 and 227 of the Constitution of India. --------------- AFR In W.P.(C) No.23282 of 2016 Abhay Kumar Singh ..… Petitioner Union of India & Ors. ….. Opp. Parties -Versus- For petitioner : M/s. D.K. Mohanty and S. Nayak, Advocates For opp. parties : Mr. M.K. Pradhan, Central Govt. Counsel In W.P.(C) No.27295 of 2017 Bagadi Rama Rao ..… Petitioner Union of India & Ors. ….. Opp. Parties -Versus- For petitioner : M/s. D.K. Mohanty and S. Nayak, Advocates For opp. parties : Mr. M.K. Pradhan, Central Govt. Counsel Page 1 of 21 // 2 In W.P.(C) No.27293 of 2017 Surajit Karan ..… Petitioner Union of India & Ors. ….. Opp. Parties -Versus- For petitioner : M/s. D.K. Mohanty and S. Nayak, Advocates For opp. parties : Mr. M.K. Pradhan, Central Govt. Counsel P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY DECIDED ON : 18.04.2024 DR. B.R. SARANGI,J. W.P.(C) No.23282 of 2016 has been filed by one Abhaya Kumar Singh with the following prayer:- “Under the above facts and circumstances, it is respectfully prayed that this Hon'ble court may graciously be pleased to quash the Learned Tribunals order dt 29.06.2015 under Annexure-3 being illegal, arbitrary and violative of settled principles of law. And further be pleased to direct to quash the order dt 30.12.2012 under Annexure A/7 to O.A and consequent upon direct the opp. parties to provide alternative appointment retrospectively with all consequential benefit to the applicant forthwith. And further be pleased to pass any other order/ orders as deemed fit and proper;” And for this act of kindness, the petitioner shall as in duty bound ever pray.” Page 2 of 21 // 3 Similarly, W.P.(C) No.27295 of 2017 has been filed by one Bagadi Rama Rao seeking following reliefs:- “Under the above facts and circumstances, it is respectfully prayed that this Hon'ble court may graciously be pleased to quash the Learned Tribunals order dt 19.06.2017 under illegal, arbitrary and Annexure-4 being violative of settled principles of law. And further be pleased to quash the order dt 30.12.2010 under Annexure A/7 to O.A. and consequent upon direct the opp. parties to provide appointment retrospectively with all consequential benefit to the applicant forthwith. alternative And further be pleased to pass any other order/ orders as deemed fit and proper;” And W.P.(C) No.27293 of 2017 has been filed by one Surajit Karan with the following prayer:- “Under the above facts and circumstances, it is respectfully prayed that this Hon'ble court may graciously be pleased to quash the Learned Tribunals order dt 19.06.2017 under illegal, arbitrary and Annexure-4 being violative of settled principles of law. And further be pleased to quash the order dt 30.12.2010 under Annexure A/8 to O A and consequent upon direct the opp. parties to provide appointment retrospectively with all consequential benefit to the applicant . alternative And further be pleased to pass any other order/ orders as deemed fit and proper; And for this act of kindness, the petitioner shall as in duty bound ever pray.” Page 3 of 21 // 4 2. A bare reading of the prayers, as extracted above, would go to show that the petitioners in all these three writ petitions seek to quash the orders passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in their respective Original Applications, which were filed basing on the same facts and circumstances. Therefore, since all these writ petitions involve identical issue and common question of law, they were heard together and are disposed of vide this common judgment. 3. For the sake of clarity and convenience, the factual matrix of W.P.(C) No.23282 of 2016 is referred to in a nutshell. 3.1. The opposite party-East Coast Railway invited applications through open advertisement published in the Employment Notice No.1/98 dated 5.11.1998 for recruitment of 787 Gangman and 225 Group-D in Operating Department of the East Coast Railway. The petitioner applied for the post of Gangman and appeared in the physical test held during 2001-2002 and written test during November, 2003. Thereafter, the opposite Page 4 of 21 // 5 party- East Coast Railway published a list of successful candidates containing 1012 names as against 787 Gangman and 225 Group-D in Operating Department. The listed 1012 candidates were addressed to attend for verification of documents. Out of 1012 selected candidates, 42 candidates were found absent and documents of 47 candidates were found not in order. Hence, out of 1012 selected candidates, 910 candidates were appointed. In order to fill up the rest 102 (1012 - 910) vacancies, another list of 89 successful candidates in order of merit containing the name of the petitioner was published by the opposite party-East Coast Railway. Accordingly, those 89 candidates including the petitioner were asked to attend the office of the DRM (P), KUR on 24.12.2005 for verification of documents. 3.2. While the verification of documents was in progress, through notice dated 24.12.2005 the same was postponed. Successive representations of the petitioner and others did not yield any fruitful result. Thereby, a number of Original Applications pertaining to selection in question were also filed before the Central Page 5 of 21 // 6 Administrative Tribunal, Cuttack Bench, Cuttack. In OA No 440/06, the Tribunal, vide order dated 24.8.2007, issued direction to the opposite party-East Coast Railway to resume the verification of documents of selected candidates. Accordingly, the opposite party- East Coast Railway verified the documents of the petitioner. Thereafter, on being asked, the petitioner furnished the attestation form, after which he was sent for medical examination, which was conducted on 12.10.2009 and from the medical report dated 15.10.2009, it would be evident that the petitioner was declared fit for appointment in Bee-Two. 3.3. The petitioner, on depositing the required fees, sought re-examination. Accordingly, on medical re- examination, he was declared fit in Bee-One. After being selected through open competitive examination and found fit for Bee-Two/Bee-one, he is out of employment and consequentially, he is moving from pillar to post ventilating his grievance. On the other hand, in similar situation, the candidates, having been declared unfit in A2 and B1, have been found fit in B2 and provided with Page 6 of 21 // 7 alternative appointment as Store Keeper in place of Gangman, vide order dated 14.09.2006, in pursuance of the same Employment Notice No.01/1998. 3.4. Therefore, the petitioner, along with other similarly situated candidates, filed a representation on 16.03.2010 praying for providing alternative appointment, as was given to others in order, but the same was not considered. Thereby, the petitioner filed O.A. No.345 of 2010 before the Tribunal seeking direction to the opposite party- East Coast Railway to give alternative appointment, as has been extended to similarly placed persons. The Tribunal, vide order dated 01.07.2010, disposed of the said O.A. at the stage of admission granting liberty to the petitioner to make a fresh representation to opposite party no.2 incorporating the points raised in the said O.A. within a period of seven days with a direction to opposite party no.2 to consider the grievance of the petitioner in the light of the consideration given to the case of others and communicate the outcome of such consideration in a Page 7 of 21 // 8 reasoned order to the petitioner within a period of 45 days from the date of receipt of such representation. 3.5. In compliance of the said order, the petitioner submitted his representation, along with the order dated 01.07.2010 passed by the Tribunal, but opposite party no.2 rejected the said representation vide order dated 30.12.2010. Challenging the said order, the petitioner filed O.A. No.849 of 2011 and the Tribunal, vide order dated 29.06.2015, dismissed the said O.A. Hence, this writ petition. 4.
Legal Reasoning
Mr. D.K. Mohanty, learned counsel appearing for the petitioner vehemently contended that pursuant to advertisement issued vide Employment Notice No.01/ 1998 dated 05.11.1998, the petitioner applied for the post of Gangman. Though he was found fit medically under Bee-Two and Bee-One and similarly situated candidates already given employment in 2006, denial of appointment to the petitioner is arbitrary, unreasonable and contrary to the provisions of law and is violative of Article-14 of the Constitution of India. Therefore, the petitioner has approached this Court by filing this writ Page 8 of 21 // 9 petition challenging the order dated 29.06.2015 passed by the Tribunal in O.A. No. 849 of 2011. In support of his contention, he has relied upon the judgments of the apex Court in Y.V. Rangaih v. J. Sreenivas Rao, 1983 (3) SCC 284; P. Mahendra v. State of Karnataka, AIR 1990 SC 405; Vinod Kumar Singhal v. Union of India, (1995) SLR 695; State of Punjab v. A.K. Agarwal, (2008) 2 SCC (L & S) 377; and Satrughna Mallick v. State of Orissa, 2009 (I) ILR CUT-74. 5. Mr. M.K. Pradhan, learned Central Government Counsel appearing for the opposite parties vehemently contended that the relief sought is not admissible to the petitioner, as it is grossly barred by limitation. Because the advertisement was issued in 1998 and the petitioner ventilated his grievance much later stage claiming the benefit at par with the similarly situated candidates. It is further contended that the Tribunal has not committed any error apparent on the face of the record so as to warrant interference of this Court. Rather, by passing the reasoned order on 30.12.2010, opposite party no.2 is justified in his action Page 9 of 21 // 10 in not giving any appointment to the petitioner, because the policy, under which the petitioner is asking for the relief, is no more in existence. Accordingly, he seeks for
Decision
dismissal of the writ petition. 6. This Court heard Mr. D.K. Mohanty, learned counsel appearing for the petitioner and Mr. M.K. Pradhan, learned Central Government Counsel appearing for the opposite parties in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel appearing for the parties, the writ petition is being disposed of finally at the stage of admission. 7. In view of factual matrix, as discussed above, there is no dispute that in order to fill up 787 posts of Gangman in Engineering Department and 225 Group-D posts in Operating Department, Employment Notification No.1/1998 dated 05.11.1998 was issued inviting applications from willing and eligible candidates. In response to the same, the petitioner submitted his application and participated in the said selection, pursuant to which he was called upon to appear in the Page 10 of 21 // 11 physical test on 27.4.2002. On being successful in the physical test, he was called upon to appear in the written test held on 02.11.2003. Initially, a select list of 1012 candidates was prepared basing on the merit position of the candidates in the written test and also keeping in view the quota allotted to various communities, i.e., UR, OBC, SC & ST. The petitioner's name did not find place in that select list, as he did not come within the zone of consideration as per his merit position in the written test. Those 1012 candidates, who were earlier shortlisted basing on their merit position in the written test and also keeping in view the quota allotted to various communities, were called upon for verification of their testimonials/documents by a duly constituted committee comprising of three J. A. Grade Officers of the Railway. During the course of verification of testimonials/ documents of those candidates, the candidatures of some of the candidates were rejected and also some of the candidates remained absent from the process of verification. But the candidates, whose testimonials/ documents were found in order, were provisionally empanelled for appointment in the posts of Gangman in Page 11 of 21 // 12 Engineering Department/Group-D posts in Operating Department basing on their merit position in the written test and keeping in view the quota allotted to various communities. Those candidates, who were provisionally empanelled, were issued with provisional offer of appointment and were sent for pre-recruitment medical examination to adjudge their suitability in the medical category required for the posts. 8. During the course of medical examination, some of the candidates were found to be medically unfit in the medical category required for the posts they were offered, but found fit in lower medical category and, as such, the cases of such candidates were referred to the Zonal Headquarter of East Coast Railway at Bhubaneswar seeking clarification and to communicate the manner of dealing those cases. In response to same, opposite party no.2-Chief Personnel Officer, East Coast Railway, vide his letter dated 21.04.2006, advised the Division that the cases of such candidates may be forwarded to Headquarters for future course of action. Accordingly, the cases of such candidates, who were not Page 12 of 21 // 13 found to be medically unfit in the medical category required for the posts they were offered, but found fit in lower medical category, were sent to the Headquarters and those candidates were considered to extend the benefit of appointment in the categories according to their medical fitness. Such appointments were considered during the period 2006. 9. After exhausting the list of 1012 candidates, as 89 posts, due to absenteeism and rejection of candidature, still remained vacant, in pursuance of the direction dated 24.08.2007 issued by the Tribunal in O.A No. 440 of 2006, steps were taken to fill up the entire vacancies by going down below the merit list. During the said exercise, the petitioner was called upon for verification of testimonials. As the testimonials/ documents of the petitioner were found in order, he was provisionally empanelled for the post of Gangman and was issued with provisional offer of appointment, which he accepted. Thereafter, he was sent for pre-recruitment medical examination on 15.10.2009 for the post of Gangman, which carries the medical category of Bee-one, Page 13 of 21 // 14 but at the time of medical examination, it was found that the petitioner was unfit in the medical category Bee-one, but fit in medical category Bee-two (which is below the required medical classification for the post of Gangman in Bee-one) and, as such, he could not be engaged as Gangman in Engineering Department. 10. The petitioner submitted an application on 18.12.2009 stating that he was not satisfied with the medical test declared by the railway doctor and requested for re-medical examination. Therefore, he was again sent for re-medical examination, but again he was found unfit in the medical category required for the post of Gangman. By the time the petitioner was sent for medical examination, Ministry of Railways (Railway Board), vide R.B.E. No. 90/2009 (Rly. Board's letter No. 99/E(RRB)/25/12 dated 25.05.2009) reviewed the provision of alternative appointment and decided to discontinue the policy of providing alternative appointment to the medically failed empanelled candidates selected through RRBs/RRCs for any Group 'C' or Group 'D' posts. The said instruction is being Page 14 of 21 // 15 followed from the date of issuance of the letter i.e. 25.05.2009. Accordingly, the petitioner was not appointed in an alternative post according to his medical fitness. 11. Challenging such action of the authority, the petitioner filed O.A. No.345 of 2010 before the Tribunal, which was disposed of, vide order dated 01.07.2010, granting liberty to the petitioner to make a fresh representation to opposite party no.2 incorporating the points raised in the said O.A. within a period of seven days and opposite party no.2 was also directed to consider the grievance of the petitioner in the light of the consideration given to the cases of the others and communicate the result of such consideration in a reasoned order to him within a period of 60 days from the date of receipt of such representation. 12. In compliance of the same, the petitioner made a representation dated 08.07.2010 to opposite party no.2-Chief Personnel Officer, East Coast Railway, Bhubaneswar and the same was disposed of vide speaking order dated 30.12.2010. Aggrieved by the said Page 15 of 21 // 16 order, the petitioner again filed O.A No. 849 of 2011, but the Tribunal accepted the stand taken by the Railway and, after hearing both sides, dismissed the said O.A. as devoid of merit, vide order dated 29.06.2015, against which the petitioner has filed this writ petition. 13. In course of hearing, this Court called upon learned counsel for the petitioner to produce any guidelines or procedure, as envisaged for recruitment of Gangman, of the year 1998, because the petitioner’s employment can only be regulated by the rules prevalent at that time. But the learned counsel for the petitioner failed to produce any guidelines giving alternative appointment to the petitioner or any such policy of the Government of India in Railway Department for giving alternative appointment to the medically fit selected candidates. It is only contended that the candidates, who were selected as per 1998 advertisement, were given alternative appointment in the year 2006. The petitioner failed to produce any such material before the Tribunal so also before this Court to justify the action of the opposite party-East Coast Railway as bad. On the other Page 16 of 21 // 17 hand, the Ministry of Railways (Railway Board), vide R.B.E. No. 90/2009 (Rly. Board's letter No. 99/E(RRB)/25/12 dated 25.05.2009), reviewed the provision of alternative appointment and decided to discontinue the policy of providing alternative appointment to the medically failed empanelled candidates selected through RRBs/RRCs for any Group 'C' or Group 'D' posts. The contents of such letter read thus: "4. Considering all these aspects, Board have decided to discontinue the policy of providing alternative appointment to the medically failed empanelled through R.R.Bs/ R. R. Cs for any Group-C or Group-D post.” candidates selected The above principle is being followed from the date of issuance of the letter dated 25.05.2009 by the Ministry of Railways (Railway Board) vide R.B.E. No. 90/2009 (Rly. Board's letter No. 99/E(RRB)/25/12 dated 25.05.2009) and the contention also raised by the learned counsel for the petitioner that some of the candidates were given alternative appointment in 2006, i.e., much before the issuance of letter dated 25.05.2009 by the Railway Board. Thereby, it cannot be said that the Page 17 of 21 // 18 petitioner has been discriminated in extending the benefit of alternative appointment to him. 14. The process of selection was concluded in the year 2003 and due to non-consideration of his case the petitioner approached the Tribunal by filing O.A. No.440 of 2006. Therefore, the same is barred by limitation. In the name of disposal of representation, the delay which has already accrued cannot be evacuated to extend the benefit to the petitioner. In any case, in absence of any materials and rules governing the field, when the applications were invited in the year 1998, to provide any alternative appointment, the claim made by the petitioner cannot be sustained in the eye of law. Though several judgments were referred to by the learned counsel for the petitioner at the time of argument, he relied upon the judgment of the apex Court in Y.V. Rangaih (supra), wherein it has been observed as follows: law “That there could, possibly, no quarrel of the well settled "vacancies which that occurred prior to the amended rules would be governed by the old rules and not by the amended rules and in this connection, it is advantageous to rely on the decision of the Hon'ble Apex Court of P.Mahendran and others vs. state of Karnataka and others, AIR 1990 SC 405 case the in Page 18 of 21 // 19 in which it was held that "it is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies to advertisement issued by Public service Commission in accordance with recruitment rules, he acquires right to be considered for selection in accordance with the then existing rules. This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature" for a post response in The above decision is the reiteration of the earlier decision of the Hon'ble Apex Court rendered in the case of Y.V.Rangaiah and others vrs.JH.Sreenivasa Rao and ors. AIR 983 SC 852.” There is no dispute with regard to the proposition, which has been laid down by the apex Court in the aforementioned judgment, that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. 15. Furthermore, the question raised herein is no more res integra, in view of the judgment of the apex Court in Union of India v. Ishwar Singh Khatri, 1992 Suppl.(3) SCC 84, wherein it has been held as follows:- “The selected candidates have to appointment only against ‘vacancies notified’ and that too during the life of the select list as the panel of selected candidates cannot be indefinite period. Moreover, the valid for right Page 19 of 21 // 20 empanelled candidates “in any event cannot have a right against future vacancies.” In the above ratio, it is well settled by the apex Court that the selected candidates have right to appointment only against ‘vacancies notified’ and that too during the life of the select list as the panel of selected candidates cannot be valid for indefinite period. In the instant case, the source of recruitment being the advertisement issued in 1998, the petitioner cannot ask for any relief by filing O.A. before the Tribunal, in the name of disposal of representation pending before the authority, after long lapse of more than 8 years. More so, the panel select list cannot be continued for years together. 16. In absence of any rule governing the field or any policy or guidelines applicable to the petitioner for alternative appointment, it is difficult to extend such benefit after lapse of more than 8 years. Thereby, the claim for alternative appointment having been stopped in 2009, the same cannot be extended to the petitioner. Therefore, this Court does not find any error in the order dated 29.06.2015 passed by the Tribunal in O.A. No.849 Page 20 of 21 // 21 of 2011 so as to warrant interference of this Court and the same is hereby upheld. 17. In the light of the foregoing discussions, since W.P.(C) No. 27295 of 2017 and W.P.(C) No. 27293 of 2017 are analogous to W.P.(C) No. 23282 of 2016, this Court is not inclined to interfere with the order dated 19.06.2017 passed by the Tribunal in O.A. No.848 of 2011, which is the subject matter of challenge in W.P.(C) No. 27295 of 2017, and the order dated 19.06.2017 passed by the Tribunal in O.A. No.818 of 2011, which is has been impugned in W.P.(C) No. 27293 of 2017 and the same are hereby upheld. 18. In the result, therefore, the writ petitions merit no consideration and the same are hereby dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs. (DR. B.R. SARANGI) JUDGE G. SATAPATHY, J. I agree. Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 24-Apr-2024 16:56:44 (G. SATAPATHY) JUDGE Orissa High Court, Cuttack The 18th April, 2024, Alok Page 21 of 21