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2017 DIGILAW 761 (ORI)

Satyanarayan Patnaik v. Union of India

2017-07-20

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. The petitioners have approached this Court under Articles 226 and 227 of the Constitution of India challenging the order dated 11.5.2010 passed in O.A.Nos.598 and 724 of 2006 by the Central Administrative Tribunal, Cuttack Bench, Cuttack whereby and where under the respondents have been directed to publish the result of seven applicants out of 18 who were according to them eligible to face the test plus seven applicants who were respondents 5 to 11 in O.A.No.598 of 2007 and thereafter to take further follow up action to fill up eight posts of Loco Inspectors based on their respective performance. 2. The fact of the case, as has been raised by the applicants before the Tribunal, is that they were working as Loco Pilot Grade-II, STN KUR, office of the Chief Crew Controller, East Coast Railway, Khurda Road. The authorities have come out with a notification dated 21.7.2007 to fill up eight vacancies of Loco Inspectors of Electrical Department directing the DRMs of three Railway Divisions of East Coast Railway to forward the names of volunteers who have five years experience as Loco Pilot-I(pass), Loco Pilot-II(pass) and Loco Pilot-II(Goods) for consideration. As per the eligibility criteria, experience of five years were changed to three years and since the applicants had required three years of foot plate experience they have been promoted to the post of Loco Pilot with effect from 13.2.2003, submitted their applications pursuant to the notification. The Assistant Personnel Officer (Staff) published a list showing names of seven persons as eligible to participate in the selection, name of the applicants did not find place in the said list, they approached the Tribunal making the following reliefs: “(i) The original application may be allowed; (ii) The order dated 14.8.2006 may be quashed; (iii) The applicants may be declared eligible to appear in the test; (iv) The respondents may be directed to allow the applicants to be considered for the post of Loco Inspector; (v) Such other orders/Directions may be issued in giving complete relief to the applicants.” 3. The contention of the applicants before the Tribunal was that East Coast Railway was formed consisting of three Divisions namely, Khurda Road, Sambalpur and Waltair. The contention of the applicants before the Tribunal was that East Coast Railway was formed consisting of three Divisions namely, Khurda Road, Sambalpur and Waltair. The seven candidates whose names are shown at Annexure-4 to appear at the test, do not belong to any of the three Divisions of the Railway nor their seniority is maintained in any of the Divisions rather they belong to other Railways and their seniority are maintained in their respective Railways where they are working whereas all the applicants were having the pre-requisite qualification and three years foot plate experience thereby becoming eligible to appear at the test for promotion to the post of Loco Inspectors in Electrical Department of East Coast Railway. It has been contended by the applicants that the case of the applicants ought not to have been ignored by the authorities with a view to accommodate the respondent Nos. 5 to 11 by changing the eligibility criteria. 4. Authorities have appeared along with the private respondents before the Tribunal and submitted there that it is wrong to say that the private respondents are not employees of the East Coast Railway rather their specific stand before the Tribunal was that they were working as Traction Loco Controller in the East Coast Zonal headquarters having been brought as per Railway Board’s option transfer during the Zone formation and since then they have come from the running category of the East Coast Railway. They have contended that their lien has also been transferred with effect from the date when they have posted on option by way of transfer in the newly higher grade post of Traction Loco Controller and regularized w.e.f. 1.11.2003 vide office order dated 21.2.2008 and lien of the post has also been transferred with effect from 1.11.2003 and as such it is wrong to say that the private respondents are not employees of the East Coast Railway. In the light of these rival submissions, the Tribunal has decided the issue and passed direction for publication of result including result of the respondents which is under challenge in this writ petition. 5. In the light of these rival submissions, the Tribunal has decided the issue and passed direction for publication of result including result of the respondents which is under challenge in this writ petition. 5. Learned counsel for the petitioners has vehemently argued that the Tribunal has not taken into consideration the fact that the private respondents never belong to the East Coast Railway rather they are the original employees of the South Eastern Railway and is only on 21.2.2008 their lien have been shown to be transferred to the East Coast Railway w.e.f. 1.11.2003 and on the basis of the subsequent documents, their claim for consideration for appointment to the post in question is not proper but this fact has not been taken into consideration by the Tribunal. 6. We have heard learned counsel for the parties and perused the documents available on record. 7. The sole question raised in this writ petition is regarding eligibility of having three years experience as Traction Loco Controller and the required eligibility to be considered for the post is of having three years experience in the said field. It is not in dispute that the East Coast Railway has been formed by way of new Zone in the year 2003 and for smooth functioning of the East Coast Railway option have been invited from the concerned employees under the South Eastern Railways to make their option to be posted in the South Eastern Railway and in exercise of the said option the private respondents have opted to be posted under the East Coast Railway and accordingly they have been posted by way of transfer w.e.f. 1.11.2003, they have started discharging their duties in the field and as such acquired eligibility experience to be considered for the post of Loco Inspector. 8. The private respondents vis-a-vis the applicants have applied for consideration of their candidature as Loco Inspector. The case of the private respondents have been considered by the authorities by taking into consideration their experience in the field which is required under the Recruitment Rules for promotion and accordingly they have been kept in the list for consideration of their candidatures. The private respondents vis-a-vis the applicants have applied for consideration of their candidature as Loco Inspector. The case of the private respondents have been considered by the authorities by taking into consideration their experience in the field which is required under the Recruitment Rules for promotion and accordingly they have been kept in the list for consideration of their candidatures. Initially, the candidatures of the applicants have not been considered for the reason of not having three years requisite experience of discharging of service, but in course of argument it has been informed by learned counsel for the parties that in the light of the order passed by this Court by way of interim measure, the candidature of the applicants have been considered and after its consideration, the outcome of the result is kept in sealed cover in the light of the interim order passed by this Court in not publishing the result. 9. We, after examining the materials available on record, accepted the admitted position that the private respondents have been posted in the East Coast Railway by way of transfer w.e.f. 1.11.2003 and had started discharging their duties in the post and acquired experience for becoming eligible to be considered for selection for the post of Loco Inspector, subsequently by virtue of the memorandum dated 21.2.2008 lien to the post has been transferred w.e.f. the date of their appointment by way of transfer under the East Coast Railway. Learned counsel appearing for the applicants at this juncture has questioned the memo dated 21.2.2008 but we have not found anything on record that they have ever challenged the memo dated 21.2.2003 that relates to transfer of lien of the private respondents w.e.f. 1.11.2003 while the copy of the same has been supplied to them when the matter was pending before the Tribunal by the authorities by way of Annexure in the counter affidavit but they chosen not to challenge it. The question of the applicants regarding veracity of the memo dated 21.2.2008 cannot be looked into by this Court at this stage, facts remains that the private respondents have been appointed by way of transfer under the East Coast Railway and thereafter they have started discharging their duties under it and subsequently by virtue of memorandum dated 21.2.2008 their lien has been transfer w.e.f. 1.11.2003 and as such there is no dispute about the fact that appointment is being made by way of transfer and subsequently lien has also been transferred, their candidature for consideration of any subsequent service benefits under the subsequent establishment, cannot be questioned. The Tribunal after taking into consideration the note of the fact has declined to interfere with the viability position of the private respondents and directed the authorities to publish result. 10. It is not in dispute that right of consideration of a candidate is the fundamental right to be permitted and accordingly the applicants cases have also been considered and this Court has been informed that the cases of the applicants have been kept in the sealed cover for consideration of their candidature taking into consideration their experience of three years to the post required, as per the Recruitment Rules, and as such while disposing of the writ application, without interfering with the order of the Tribunal, we direct the respondents/ authorities to publish result forthwith and take consequential action. In the result, with the observation and direction, the writ petition is disposed of.