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2011 DIGILAW 1254 (CAL)

UNION OF INDIA v. Provat Kumar Koley

2011-09-09

ASHIM KUMAR BANERJEE, MRINAL KANTI CHAUDHURI

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JUDGMENT 1. THE conduct of the respondents is not above-board. THE respondents were changing their lawyer on one pretext or the other. THE third one Mr. Partha Ghosh, learned Counsel appeared before us on September 6, 2011, when he prayed for leave to retire in absence of instruction. At that juncture, Ms. Shyamali Banerjee, learned Counsel appeared before us and sought leave to intervene in both the matters on behalf of the respondents. Accordingly, Mr. Ghosh was relieved and Ms. Banerjee was given time to get herself ready. 2. TODAY, when the matters are called on, Ms. Banerjee is also having the identical experience. She submits that the respondents are not approaching her. She has not been given Vokalatnama. Hence, she is not in a position to accept the papers from Mr. Ghosh, however, Mr. Ghosh is ready with all papers to be handed over to the lawyer, although his remuneration is outstanding. The matters are being adjourned from time to time to accommodate the respondents, but the respondents are not serious about the matter. Hence, we are compelled to take up the hearing in their absence. We have heard Mr. Sanajit Kumar Ghosh, learned Counsel appearing for the Railways/applicants. On perusal of the pleadings including the order of the Tribunal, it appears that the Tribunal disposed of both the applications being OA 1470 of 2010 and OA 1471 of 2010 by a common judgment and order dated July 13, 2010. The facts would depict that the respondents were working as Technician Grade I in Chittaranjan Locomotive Works. In pursuance of a notification dated April 29, 2006 the applicants before the Tribunal applied for the post of Apprentice Mechanic Inter stage (Mechanical). They participated in the selection process; however, they were not successful. They contended before the Tribunal that they secured higher marks than those empanelled candidates. According to them, their names were omitted and the persons having higher pay scale, although secured lesser marks, were included in the panel. They relied upon the decision in the case of Ram Jayram reported in 1996 Volume 1 Supreme Court Cases page 537. The Tribunal considered the Apex Court decision and allowed the application by observing that the respondents were similarly circumstanced with the petitioners in the case before Punjab and Haryana Bench, wherein an identical issue was disposed of vide judgment and order dated April 9, 2008. The Tribunal considered the Apex Court decision and allowed the application by observing that the respondents were similarly circumstanced with the petitioners in the case before Punjab and Haryana Bench, wherein an identical issue was disposed of vide judgment and order dated April 9, 2008. The Tribunal ultimately, quashed the panel and directed the Railways to redraw the panel strictly according to merit, keeping in view of the amended provision of paragraph 219. 3. BEING aggrieved, the Railway authority has come up before us by filing the instant applications. Mr. Ghosh contends that the Tribunal failed to appreciate that the amended provision came into being after the recruitment process had been initiated. Moreover, the subject selection pertains to a panel dated February 14, 2008 whereas the respondents approached the Tribunal by filing the original applications on June 10, 2010. Hence, the said applications were grossly belated. He also submits that the subsequent change in procedure, which came into being with effect from June 19, 2000, although not applicable in the instant case, was given prospective effect and in no stretch of imagination, could have bearing of a panel prepared on February 14, 2008 and published on February 24, 2008. Mr. Ghosh further contends that the recruitment process was conducted strictly as per the guidelines framed therefor. In absence of challenge to the said guidelines appearing at page 35 of the petition, the Tribunal was not correct in up-setting the selection process, that too, in absence of the successful candidates, being parties to the said proceeding. 4. TO support his contention, Mr. Ghosh relies on the decisions in the case of S.S. Rathore -vs- State of Madhya Pradesh reported in All India Reporter 1990 Supreme Court page 10 and in the case of State of Orissa -vs- Chandra Sekhar Mishra reported in 2002 Volume 10 Supreme Court Cases page 583. We are totally impressed by the submissions made on behalf of the Railways. We are of the view that in the case before the Punjab and Haryana Bench, the relevant rule was amended whereas in the case before us the subsequent procedure came into being, after the selection process was completed. The amended paragraph 219 came into being much after the selection process. Hence, the amended paragraph would have no application in the instant case. Moreover, the applications made before the Tribunal were belated. No reason was assigned by the respondents. The amended paragraph 219 came into being much after the selection process. Hence, the amended paragraph would have no application in the instant case. Moreover, the applications made before the Tribunal were belated. No reason was assigned by the respondents. The Tribunal ought not to have entertained the same. The Tribunal applications succeed and are allowed. The judgment and order dated July 13, 2010 passed in OA 1470 of 2010 and OA 1471 of 2010 is set aside. Both the original applications are dismissed. WPCT 9 of 2011 and WPCT 10 of 2011 are disposed of without however, any order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.