CWP No.7086 CAT of 2010 v. Union of India & Ors.

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. V.K.Sharma ,Advocate for the petitioner

1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioner has approached this Court with a prayer for quashing order dated 25.3.2010 (P.7) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity ' the Tribunal') dismissing OA No. 512 HR of 2008. He had approached the Tribunal by filing OA with a prayer for quashing order dated 5.8.2008 passed by the Sr. Divisional Personnel Officer, Northern Railways, Ambala Cantt. setting aside the selection for promotion to the post of Driver Passenger in the grade of Rs. 5500-9000 in Mechanical (O&F) Department from the post of Loco Pilot. It is appropriate to mention that some of the petitioners have been working as Sr. Loco Pilot (Goods) in the scale of Rs. 5500-9000 whereas the others are working as Loco Pilot (Goods) in the pay scale of Rs. 5000-8000. The promotional post of Driver Passenger is in the pay scale of Rs. 5500-9000. On 18.2.2008, the respondents had conducted a selection process for the post of Driver Passenger. The selection was to be made on CWP No. 7086 of 2010 2 the basis of viva-voce test. The selection for promotion to the post in question was to be made on the basis of merit-cum-seniority. A provisional panel was prepared on 27.5.2008 with the name of 85 persons proposing to promote them to the post of Driver Passenger in Mechanical (O&F) Department. Before the Tribunal, the petitioner alleged that certain persons filed OA No.1242 of 2008 with the assertion that the selection was to be conducted on the basis of selection-cum-merit principle and allegations were levelled that those who have been empanelled were either not eligible or had bad record. Disciplinary proceedings were alleged to be pending against them or they had suffered punishment and that the earlier selection was prepared on the basis of seniority and good record of service. The principal Bench of the Tribunal at New Delhi issued notice for 10.6.2008 with a direction to the respondents to file reply. The Tribunal also issued interim order that appointment, if any, made would be subject to the decision of the aforesaid application. It was in the aforesaid facts and circumstances that the official respondents issued the impugned order dated 5.8.2008 scrapping the selection of the petitioner for promotion to the post of Driver- Passenger in the grade of 5500-9000 in Mechanical (O&F) Department. It was alleged the selection was not fair and impartial; and that no reasons have been intimated as to why the selection for promotion has been cancelled; and that the same is discriminatory , arbitrary and against the rules and law. It was still further alleged that in any case if there was any irregularity then it should have been conveyed to those persons who have got undue advantage. The Tribunal after considering the reply and rejoinder has referred to the irregularities in the selection as per the report received with CWP No. 7086 of 2010 3 the recommendation of the Divisional Railway Manager. The report has been quoted by the Tribunal which reads thus: “ *A few junior Loco Pilots (Goods) who have not even completed 2 years of service have passed for promotion of Loco Pilot (Passenger). *Senior Loco Pilots have not passed the exam even though there is no adverse remark in their CRs. *A few senior most SC candidates have failed, while junior SC candidates who have not even completed 2 years service, have been considered suitable for empanelment.” The Tribunal also recorded its own conclusion by observing that there were irregularities in awarding less marks to the candidates with good service record and more marks to those who have inferior service record. This has lead to heart- burning amongst the failed candidates. Accordingly, the selection has been cancelled. The Tribunal has placed reliance on the observations made in para 8 of the judgement of Hon'ble the Supreme Court rendered in the case of Union of India v. O.Chakradhar (2002) 3 SCC 146. In the concluding para, the Tribunal proceeded to observe as under: “ 13. The present case is found to be covered on all fours by the aforesaid decision. The motive behind cancellation of selection is that irregularity has taken place in the selection which was found to be not done in a fair and impartial manner. So no fault can be found with the action taken by the respondents. Mere inclusion of the name of applicants in the panel does not give them indefeasible right to appointment. Selection is also found CWP No. 7086 of 2010 4 to be cancelled with due approval of the competent authority.

14. Secondly, we find merit in the contention of the respondents that OA has become infructuous in asmuch as feeder cadre posts as well as promotional posts have been merged and as such the impugned order, Annexure A1, canceling the selection and Annexure A2, provisional selection have lost relevant and respondents are in the process of rationalizing the functions as also revised designation, recruitment rules, classification, selection, non- selection etc.” We have heard the learned counsel for the petitioner at a considerable length and have also perused the requisitioned record of the Tribunal. We are of the view that no useful purpose would be served by re-opening the issue at this stage because there is merger of the cadre of Sr. Loco Pilot and Loco Pilot (Goods) with that of 'Driver Passenger'. We are further of the view that it would be futile to segregate the candidates who have suffered or who have gained marks in viva voce as there are no mala-fides against the Divisional Regional Manager which may lead us to believe that subjective consideration have entered in the mind of competent authority while canceling the result of selection and scrapping the list. We further find that the order canceling the selection of candidates who were provisionally selected (A.1 and A.2) because after the merger of the cadre the exercise would be rendered meaningless. Moreover, the irregularities committed in awarding marks in viva voce have been found to be of such a nature that person with inferior record have got better marks in viva voce which speaks volume about the selection process. Still further, in law selection does not confer indefeasible right of appointment. Therefore, we CWP No. 7086 of 2010 5 are inclined to accept the reasoning adopted by the Tribunal and the same does not suffer from any legal infirmity warranting interference of this Court. As a sequel to the above observation, the writ petition does not warrant admission and the same is dismissed. (M.M.Kumar) Judge (Jitendra Chauhan) Judge 11 .5.2010