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2006 DIGILAW 200 (ORI)

Union of India v. Trilochan Sahu

2006-03-17

I.M.QUDDUSI, PRADIP MOHANTY

body2006
JUDGMENT I. M. QUDDUSI, J. : The Union of India through the General Manager, East Coast Railway, Bhubaneswar and two others have filed the instant writ petition against the impugned judgment and order dated 16.4.2004 passed by the Central Administrative Tribu¬nal, Cuttack Bench, Cuttack. 2. The brief facts of the case are that opposite parties 1 to 20 along with some other persons applied for enrolment of fresh faces as substitutes for utilization against day to day casualties in pursuance of the invitation of applications from the children of the railway employees who had retired on superan¬nuation or voluntarily after 1.1.1987 or were to retire from service by 31.12.1993. Opposite parties 1 to 20, who were the children of the retired railway employees, moved their applica¬tions before the Divisional Railway Manager (Personnel), Khurda Road. The petitioners had conducted some test/screening but stopped to take further steps. The result of the test already conducted was also not declared. being aggrieved, they filed O.A. (No. 511 of 1994) before the Central Administrative Tribunal, Cuttack Bench, Cuttack and the same was disposed of on 4.1.1999 with the following observations :- “xx xx xx. The admitted position was that there were allegations with regard to the interview/test conducted by the screening Committee and on receipt of such allegations, enquiry was taken up by the Vigilance Organisation of the Railways which seized all the records. Under these circumstances, no fault can be found with the respondents for not publishing the results of the test. The applicants have prayed that the respondents should be directed to publish the result of the test within a time limit to be fixed by the Tribunal. It would not be correct to give such direction because in case during the enquiry by the Vigilance Organisation large scale irregularities have been proved, then the authorities will be within their rights to cancel the entire test. Without knowing what the allegations and what are the results of the enquiry, it would not be correct to issue a blan¬ket direction of the type prayed for by the applicants. At the same time, it is to be noted that the Vigilance Department seized the records sometime in January, 1992 and started their enquiry. More than five years have passed in the meantime. At the same time, it is to be noted that the Vigilance Department seized the records sometime in January, 1992 and started their enquiry. More than five years have passed in the meantime. It is, there¬fore, necessary that the Vigilance Organisation of the Railways completes their enquiry within a specified period if that has not already been completed. In consideration of this, we direct respondent Nos.1 and 2 to order the Vigilance Organisation to complete the enquiry and submit their report within a period of 90 (ninety) days from the date of receipt of copy of this order. Further action with regard to the interview/test will have to be taken on this basis of findings of the Vigilance Organisation in the enquiry into the alleged irregularities in the interview/test. In view of the above, it is not possible to issue direction to the respondents to give engagement to the applicants or even to enrol them in a panel to be appointed as substitutes against day to day casualties.” 3. Against the aforesaid order, opposite parties 1 to 20 approached this Court by way of filing a writ petition, which was registered as O.J.C. No.6140 of 1999, which was also dismissed vide order dated 5.7.2001. But as the instant petitioners had already cancelled the selection vide order dated 22.1.1999, liberty was given by this Court to those persons to approach the Tribunal again challenging the order of cancellation of selec¬tion. Consequently, a fresh O.A. was filed before the Central Administrative Tribunal, Cuttack Bench, Cuttack which was regis¬tered as O.A. No.520 of 2001 and was disposed of vide impugned order dated 16.4.2004. 4. Though the Tribunal has not quashed the order dated 22.1.1999 cancelling the selection, it has observed in its im¬pugned order that the present petitioners have sufficiently misled the Tribunal as well as this Court in the earlier round of litigation and consequently the imposed cost of Rs. 1000/- upon them. 4. Though the Tribunal has not quashed the order dated 22.1.1999 cancelling the selection, it has observed in its im¬pugned order that the present petitioners have sufficiently misled the Tribunal as well as this Court in the earlier round of litigation and consequently the imposed cost of Rs. 1000/- upon them. The Tribunal in its impugned order has also made an obser¬vation and directed that as under the existing policy of the department there is no bar for considering the wards of the Railway Employees for enrolment as substitutes along with outside candidates, therefore, the petitioners to consider the case of all the applicants before it (from amongst opposite parties 1 to 20 in the instant writ petition) who had made applications in re¬sponse to the Notification dated 13.8.1990 as and when they take action for enrolment of substitutes under their organisation. The relevant portion of the impugned judgment, i.e., paragraphs 7, 8 and 9, Tribunal is quoted as under : “7. As a result, we hold that the scheme (under which the recruitment, in question, was going on) was not an unlawful one and that calling the scheme bad would be of no purpose; because enrolment of substitute has taken place in other three Division long before. It is also clear that enrolment under Khurda Divi¬sion was withheld on certain allegations otherwise the same would have been completed at the same time as was done in other three Divisions. 8. Another aspect of the matter is that it is now over a decade the selection has been abandoned. It is also not certain how many candidates would be available for enrolment and whether any practical purpose would be served by restoring the process of selection. None the less, the point of discrimination stares at the whole matter and we need to address this point. In this re¬spect, there is no gain saying the fact that discrimination should not be allowed to happen and as under the scheme of Re¬cruitment of substitutes the Respondents are at liberty to chose people according tot heir requirements and are not bound by any given procedure, it would be harsh if the candidates who were put to rigorous test are denied the fruits of their labour. 9. 9. Keeping in all these facts of the matter in view, al¬though we are comprised that there should be no discrimination, we are also not convinced that the applicants have been able to make a good case for directing the Respondents to conduct fresh screening/test in respect of the applicants who had applied in response to the circular dated 13.8.1990 (Annexure-A/2); nor we would like to accept the plea of granting proforma seniority in respect of all those who would become successful in the said screening test. We, however, direct that as under the existing policy of the Respondent-Department, there is no bar for consid¬ering the wards of the Railways Employees for enrolment of sub¬stitutes alongwith outsider candidates, the Respondents are, hereby, directed to consider the cases of all the Applicants, who had applied in response to the Notification under Annexure-A/2 dated 13.8.1990, as and when they would take action for enrolment of substitutes under their organization.” 5. It may be noticed here that the earlier O.A. was filed in the year 1994, which was dismissed on 4.1.1999. The order of cancellation of the selection was issued much later, i.e., on 22.1.1999. Challenging in O.J.C. No.6140 of 1999 before this Court was to the order of the Tribunal dated 4.1.1999. However, it was informed that the petitioners had cancelled the selection. On this only, liberty was given by this Court to the opposite par¬ties and on that basis a fresh O.A. was filed. Therefore, we feel that at no point of time during pendency of the proceedings, either before the Tribunal or before this Court, the petitioners had misled. The observation made against the petitioners by the Tribunal that they had misled the Tribunal as well as this Court is, thus, without any basis. 6. Further, when the Tribunal has not quashed the order dated 22.1.1999 by which the selection process was cancelled and has directed that the wards of retired Railway employees in ac¬cordance with the notification for selection issued in the year 1994 be considered for enrolment as substitutes along with the outside candidates and also held that there was no basis to accept the plea of the opposite parties and grant them proforma seniority. Once their cases are to be considered along with the outsiders, a fresh merit/seniority list would be required to be prepared without any discrimination. 7. Once their cases are to be considered along with the outsiders, a fresh merit/seniority list would be required to be prepared without any discrimination. 7. However, we feel that, in case the order of the Tribu¬nal is implemented, some of the applicants who have become over age would not be considered due to age-bar unless a direction is issued to consider their cases for relaxation in the upper age limit. 8. In view of the above mentioned facts and circumstances, the writ petition is liable to be allowed in part and the im¬pugned judgment and order passed by the Tribunal is liable to be modified to the extent as directed below. 9. In the result, the writ petition is allowed in part. The impugned judgment and order passed by the Tribunal is modi¬fied to the extent that on the availability of vacancies the petitioners shall invite applications according to their require¬ment by making publication in some news papers having wide circu¬lation. Opposite parties 1 to 20 shall also be allowed to apply therein along with the outsiders, in case, they move applications pursuant to the same mentioning that they were applicants had applied for in respect of the earlier notification dated 13.8.1999 inviting applications for the same purpose. The case of those who have become over-age shall be considered for relaxa¬tion. 10. It goes without saying that as a result of the selec¬tion, the select list shall be prepared without any discrimina¬tion between the wards of the Ex-Railway employees and the out¬sider who are declared selected. Further, the observation made against the petitioners by the Tribunal in paragraph 10 of the judgment regarding their mislead¬ing the Tribunal as well as this Court and imposing cost of Rs.1000/- upon them is quashed. No order as to costs. PRADIP MOHANTY, J. I agree. Petition allowed in part.