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2018 DIGILAW 478 (ORI)

SK DAUD v. CHIEF SECURITY COMMISSIONER

2018-04-27

S.N.PRASAD

body2018
JUDGMENT : Sujit Narayan Prasad, J - In all these writ petitions since common issues are involved, as such all the cases have been directed to be heard analogously and are being disposed of by this common order. 2. The prayer made in these writ petitioners is to issue direction upon the opposite party no.1 to give promotion to the petitioners to the post Assistant Sub-Inspector (ASI) with effect from the date the private opposite parties were promoted with all consequential monetary benefits. 3. The brief fact of the case of the petitioners is that they are working as Head Constables under administrative control of opposite party no.1, they being aggrieved with his action in not recommending their cases for promotion to the post of ASI, although they are eligible to be considered for promotion to the post of ASI as per the judgment dtd.28.10.2010 passed in W.P.(C) No.6671 of 2010, along with other similarly situated employees have approached to this court by filing writ petition being W.P.(C) No.2558 of 2011, this court, while disposing of the aforesaid writ petition, has directed the opposite party no.1 to conduct examination in accordance with law by inviting applications from the eligible persons and after publication of result, the correct seniority must be maintained amongst the persons who will be found successful vis-?-vis the persons who are selected pursuant to the departmental examination held on 28.4.2010. In compliance of the aforesaid order of this court, the petitioner were allowed to participate in the departmental examination to the post of ASI but even though they have secured higher marks than that of the candidates selected in pursuance to the departmental examination held on 28.4.2010 but they have not been recommended for promotion to the post of ASI. According to the petitioners the opposite party no.1 has invited willingness from the Constables and the Head Constables, who have completed ten years of service on the date of notification to appear in the test under Rule 72 of the Railway Protection Force Act, 1987 to be considered for promotion to the rank of ASI. The petitioners had submitted their willingness to participate in the selection process but they have not been allowed to participate in the selection process for the reason that they have not completed ten years of continuous service. The petitioners had submitted their willingness to participate in the selection process but they have not been allowed to participate in the selection process for the reason that they have not completed ten years of continuous service. While according to the petitioners, if their training period would be counted then they will complete ten years of continuous service and to that effect a writ petitioner had been filed before this court being W.P.(C) No.6671 of 2010 wherein this court, after putting reliance upon the provision of Rule 63.1, has directed to count the period of training and thereby directed the selecting authority to allow the employees by counting the period of training to appear in the selection test. The petitioners although were not party to the said writ petition but they have submitted their willingness but not allowed to sit in the examination, as such they have filed another writ petition being W.P.(C ) No.2558 of 2011 and this court while disposing of the said writ petition, has directed the opposite parties to allow the petitioners to appear in the selection process by counting the training period into the total length of service and thereby the petitioners have been allowed to participate in the selection process held for the vacancy year 2011-12 but very surprisingly the petitioners have not been recommended for promotion for the reason that they have been shown to be securer of lesser marks basing upon the position of merit only of the candidates who had participated in the vacancy year 2011-12 while the candidates who have been appointed in pursuance to the selection made for the vacancy year 2009-10 in which the last selected candidate has secured only 68.8 marks out of 100, hence in no stretch of imagination the petitioners will not be recommended for promotion since they have secured higher marks in comparison to that of the candidate last selected in pursuance to the selection made for the vacancy year 2009-10. They have relied upon the observation made by this court in W.P.(C) No.2558 of 2011 to the effect that the court has directed the opposite parties to conduct examination in accordance with law inviting applications from the eligible persons and after publication of result, the correct place of seniority must be maintained amongst the persons who will be found successful vis-?-vis the persons who are selected pursuance to the departmental examination held on 28.4.2010. According to the petitioners since they have secured higher marks than the cut off marks which was fixed, hence they will be said to be successful candidates and thereby they are to be appointed and thereafter they will have to be included in the seniority list at par with the selected candidates in pursuance to the departmental examination held on 28.4.2010 but that has not been done, hence these writ petitions. 4. The opposite party no.1 has been represented through counsel, who on the strength of the counter affidavit, has submitted that there are two selections one for filling 20 vacancies for the selection year 2009-2010 in which the last selected candidate has secured 68.8 marks out of 100. The said selection process has been finalized by filling up 12 vacancies out of 20 vacancies and 8 vacancies remained unfilled. The petitioners were not the applicants in pursuance to the selection process held for the vacancy year 2009-10 due to their noneligibility since they were not completing 10 years of continuous service. Thereafter the fresh selection process has been initiated by asking willingness from one or the other employees who participated in the selection process for fulfilling 21 vacancies for the vacancy years 2011-12 and 8 unfilled vacancy of the year 2009- 10 total comes to 29 vacancies. The petitioners, after conclusion of the selection process of the vacancy year 2009-10 had approached to this court by filing writ petition being W.P.(C) No.2558 of 2011 and in terms of the order passed by this court they have participated in the selection process for the vacancy year 2011-12 in which they have secured 72.42 and 69.58 respectively under unreserved category but the last selected candidate since has secured 72.45 under unreserved category hence the petitioners have not selected. He submits that the petitioners' contention is that both the selection process be merged together and both the merit lists be also merged for selecting them which is not permissible since there are two sets of selection process and in view thereof two merit lists have been prepared, as such the petitioner cannot compare their candidatures with the candidature of other candidates who have been found successful by getting less marks in comparison to them. He further contends that the contention raised by the petitioners regarding the observation made in W.P.(C) No.2558 of 2011 to the effect that since the opposite parties have been directed to conduct examination in accordance with law inviting applications from the eligible persons and after publication of the result, the correct place of seniority must be maintained amongst the persons who will be found successful vis-?-vis the persons who are selected pursuance to the departmental examination held on 21.4.2010, but the said observation has been made with respect to fixation of seniority and it goes without saying that the question of seniority will only come if the candidate will be selected and appointed. 5. The private opposite parties have been represented through their counsel Mr. Manoj Kumar Khuntia who has vehemently argued by disputing the claim of the petitioners on the ground that they are the applicants in W.P.(C) No.6671 and 6672 of 2010, reason for filing the said writ petitions was that although they were continuing for ten years inclusive of the period of training but they have been deprived from participating in the selection year 2009-10 which, since, was contrary to the provision of regulation 63.1 hence the relief has been sought for in those writ petitions to allow them to participate in the departmental examination and to that effect interim order has been passed and in terms thereof they have participated in the examination conducted for the selection year 2009- 10 in which they have been found successful and in consequence thereof they have been promoted. 6. 6. The grievance of the petitioners against these private opposite parties are that they have wrongly been selected since they have secured lesser marks than that of the petitioners, but this contention is absolutely incorrect and not fit to be accepted for the reason that the private opposite parties have been appointed in terms of separated selection process initiated for the selection year 2009-10, and for the said selection process a separate merit list was prepared as under Annexure-4 to the writ petition. It is admitted position that the petitioners were not party to the writ petition being W.P.(C) Nos.6671 and 6672 of 2010 and they have not taken any initiative to approach the court of law to allow them to appear in the selection process for the vacancy year 2009-10 and they remained silent and allow to go the selection process. They all of a sudden woke up after the selection process for the selection year 2009-10 was concluded by filing writ petition on 4.2.2011, i.e. W.P.(C) No.2558 of 2011 and this court has disposed of the writ petition vide order dtd.12.8.2011, i.e. just one day after the date when the willingness has been sought for i.e. 11.8.2011 and thereby the petitioners have also been allowed to appear in the selection process for the selection year 2011-12. Accordingly the petitioners have participated in the process and come in the different merit list prepared in the year 2011 in which they have been found to be securer of lesser marks in comparison to the marks secured by the last selected candidate under the unreserved category, hence they cannot compare themselves with the candidature of the private opposite parties who were different to that of the petitioners since they were the selectees on the basis of the selection process initiated in the year 2009-10. He, while disputing the argument advanced on behalf of the petitioner to the effect that there was no occasion for the petitioners to approach this court allowing them to participate in the examination by asking the opposite party no.1 to count the period of training so that they may complete ten years of service, since by 2011 they had already completed ten years of continuous service even excluding the training period, while responding to it, submission has been made by Mr. Khuntia that it is admitted position that the petitioners have approached to this court after conclusion of the selection process, although this court by following the order passed in W.P.(C) No.6671 of 2010 has also allowed the petitioners to participate in the selection process with an observation that their seniority must be maintained but that does not mean that they will be equated with the private opposite parties. On the strength of these submissions it has been submitted that the petitioners have failed to make out any case, as such deserves no merit accordingly the same may be dismissed. 7. Heard the learned counsels for the parties and appreciated the rival submissions made on their behalf. Before appreciating their arguments it would be relevant to state some background of the case. The petitioners vis-?-vis the private opposite parties are working under the railway as Constables/Head Constables and they were desirous for their promotion to the rank of ASI. The Railway Rules for eligibility to hold the post of ASI is ten years of continuous service. Both the petitioners as well as the private opposite parties have not completed ten years of continuous service. Willingness has been sought for to fill up the vacancies for the year 2009-10 to fill up 20 vacancies of ASI under the Railway Protection Force. The private opposite parties have submitted their willingness to participate in the selection process and to strengthen their submission the document has been annexed. The petitioners have made statement that they have also shown their willingness to participate in the vacancy year 2009-10. Both petitioners and private opposite parties have not been found to be eligible since they have not completed ten years of continuous service and the training period was not counted by the opposite parties towards continuous service, as such the private opposite parties have invoked the jurisdiction of this court conferred under Article 226 and 227 of the Constitution of India by filing writ petition being W.P.(C) Nos.6671 and 6672 of 2010 by taking aid of regulation 63.1 which stipulates that the period of training including in service courses shall be treated as duties for all practical purposes. The Division Bench of this Court, while disposing of the writ petitions on 28.8.2010, has found the petitioners of that case eligible to participate for the promotion to the rank of ASI which was scheduled to be held on 28.4.2010 accordingly the private opposite parties have appeared in the selection process and merit list was prepared for fulfilling 20 vacancies, selection test was held from 28.4.2010 to 30.4.2010. The private opposite parties have been selected, one of whom has got 68.8 out of 100 marks and thereby selected and promoted to the post of ASI. When the said selection process was concluded the petitioners, since have not been allowed to participate in the selection process, had belatedly approached to this court by filling writ petition being W.P.(C) No.2558 of 2011 on 4.2.2011 by taking the plea that they may also be provided chance to participate in the selection process in terms of the order passed in W.P.(C) No.6671 of 2010 and the Division Bench of this court has passed an order directing the opposite parties to count the training period towards calculating ten years of service to make them eligible to participate in the selection test with a direction upon the opposite parties to conduct examination in accordance with law inviting applications from the eligible persons and after publication of result, the correct place of seniority must be maintained amongst the persons who will be found successful vis-?-vis the persons who are selected pursuant to the examination held on 28.4.2010. It is evident that the selection process for the vacancy year 2009-10 was concluded by preparing merit list on 30.4.2010 while the petitioner has approached to this court by filing W.P.(C) No.2558 of 2011 on 4.2.2011, i.e. after delay of ten months. The petitioners however, have been allowed to participate in the subsequent selection process which has been initiated by asking willingness from one or the other candidates who were desirous for participating in the selection process for filling up of the vacancies of the year 2011-12 which was 21 for that particular year and 8 backlog vacancies which were not filled up for the vacancy year 2009-10, total comes to 29 vacancies. The petitioners had participated along with others and after conclusion of the selection process merit list was prepared on 20.10.2011 under annexure-3 in which petitioners whose names appear at Sl no.30 and 32 under unreserved category, have secured 72.43 and 69.58 out of 100 marks respectively but not recommended since the last selected candidate under the unreserved category was 72.45. The petitioners being aggrieved with the said action are before this court by way of filing these writ petitions inter alia on the ground that the decision of the authorities in not recommending the petitioners for promotion is per se illegal and contrary to the observation made by this court in W.P.(C) No.2558 of 2011 as quoted above. The other ground has been taken that when they have participated in the selection process even though they were also similarly situated to that of the private opposite parties, hence they deem to have been selected for the selection year 2009-10 and their candidature ought to have been considered by taking the merit list of 2009-10 with the merit list of 2011-12 together and if that would have been done, since the private opposite parties who have been selected and promoted has got 68.8. out of 100 marks while the petitioners have secured more marks than that of him, they would have selected but not selecting them is absolutely illegal exercise of the authorities. 8. This court has appreciated the ground vis-?-vis the response submitted by the private opposite parties as also the opposite party no.1. It is not in dispute that as per service jurisprudence the merit list is to be prepared on the basis of the select year if the vacancy advertised for the said select year. Admitted position herein is that there was 20 vacancies for the select year 2009-10, for one reason or the other the petitioners have not participated in the selection process for the said selection year, however they have participated in the subsequent selection process which has been notified by asking willingness from one or the other employees to fill up 29 vacancies for the select year 2011-12, as such two separate merit lists have been prepared, i.e. under Annexure-3 which was of the select list 2011-12 and Annexure-4 which is for select year 2009-10. Further admitted position is that the private opposite parties have participated in the selection process for fulfilling the vacancies for the vacancy year 2009-10 in which on the basis of comparative merit position of one or the other candidate in the entire selection process they have been selected and promoted to the post of ASI. The petitioners, after conclusion of the selection process, have approached to this court by filing writ petition being W.P.(C) No.2558 of 2011 by seeking relief to allow them to participate in the selection process in the light of the direction passed in W.P.(C) No.6671 of 2010 and this court has extended the said relief by making an observation as quoted above, in terms thereof the petitioners have participated but it is also admitted that the petitioners have participated after conclusion of the selection process for the vacancy year 2009-10 not only that they have approached to this court for allowing them to participate in the selection process after ten months from the conclusion of the selection process of the year 2009-10. The petitioners have not been recommended for the select year 2011- 12 since on the said merit list on comparative assessment of the candidature of one or the other candidates, the petitioners have found to be securer of less marks than that of the last selected candidate, who has got 72.45 out of 100 when the petitioners have got 72.41 and 69.58 out of 100 respectively under unreserved category. The petitioners claim to be considered on the basis of the marks secured as per the selection process initiated for the vacancy year 2009-10 since according to them the private opposite parties have secured lesser marks in comparison to that of them. But this contention is not sustainable in the eye of law for the reason that when two merit lists have been prepared on the basis of two selection process, the comparison of marks of one merit list cannot be made with the marks obtained by one or the other candidate on the basis of the other selection process. But this contention is not sustainable in the eye of law for the reason that when two merit lists have been prepared on the basis of two selection process, the comparison of marks of one merit list cannot be made with the marks obtained by one or the other candidate on the basis of the other selection process. The petitioners have tried to justify their reason on the basis of observation made by this court in W.P.(C) No.2558 of 2011 as quoted above but according to the considered view of this court, the petitioners have wrongly interpreting the said observation, it is because of the reason that either in W.P.(C) No.6671 of 2010 or W.P.(C) No.2558 of 2011 the prayer made therein is to allow the petitioners of those writ petitions to participate in the selection process by counting the training period in terms of regulation 63.1 of the RPF Rules, 1987 and this court in W.P.(C) No.6671 of 2010 has directed the opposite parties to allow them to participate them in the selection process by counting their training period considering the provision of regulation 63.1 and similar direction has been passed by this court in a writ petition No.2558 of 2011 filed by the petitioners after conclusion of selection process for the vacancy year 2009-10 for allowing them to participate in the selection process. The direction has also been passed by directing the opposite parties to conduct examination in accordance with law inviting applications from the eligible persons and after publication of result, the correct place of seniority must be maintained amongst the persons who will be found successful vis-?-vis the persons who have been selected pursuant to the selection test held on 28.4.2010, this the petitioners are interpreting that they have become successful the moment they have got more than the pass marks, i.e. 60, as such they will be considered to be selected, hence they are to be promoted and in consequence thereof their seniority is also to be maintained but this interpretation of the petitioners is absolutely incorrect for the reason that in the order passed by this court in W.P.(C) No.2558 of 2011 there are two directions, one relates to allowing the opposite parties to conduct examination in accordance with law inviting applications from eligible persons and after publication of result, meaning thereby the first direction upon the opposite party was to conduct examination in accordance with law inviting applications from the eligible persons and thereafter result has to be published. The second direction was to maintain the seniority amongst the persons who will be found successful vis-?-vis the persons who are selected pursuant to the selection test held on 28.4.2010, according to the considered view of this court merely on account of the fact that a candidate has been declared to be successful, he cannot be selected, that too when the post is to be filled up on the basis of merit-cum-seniority. Successful is one thing, i.e. a candidate can be said to be successful if he has got more marks than the cut off marks fixed to bring them on panel of the merit list but selection is another part which is to be made on the basis of the panel prepared of the successful candidates containing their names in the merit list. It can be analyzed by way of an analogy suppose 20 vacancies are to be filled up in a selection process and in the said selection process 30 candidates have been found to be successful on the basis of the minimum cut off marks fixed by the selection committee and a merit list of 30 candidates have been prepared, since vacancy is only 20 then category-wise and after following the roster, from 1 to 20 the candidates will be selected and appointed and rest of the candidates will not be selected due to lack of vacancy, as such the successful candidate cannot be said to be a selected candidate and this court, while directing the same to maintain the seniority which itself suggests that seniority is only after selection and not only after being successful in the selection process, here the word successful will mean the selection, as such the connotation given by the petitioner by interpreting the word successful is not acceptable to this court, accordingly the same is rejected. The petitioners however submit that 60 mark is the minimum cut off marks but from where it has been said is not available on record. In view of the discussion made herein above and considering the fact that the petitioners are trying to compare themselves with the selected candidates of the selection year 2009-10, they cannot be said to be selected candidates, hence the reason given by opposite party no.1 in the counter affidavit justifying the reason of their non-selection which is secure of lesser marks than the last selected candidate on the basis of "The Select" year cannot be said to be unjustified. In view thereof the petitioners have failed to make out a case for passing any positive direction in their favour. In the result the writ petitions fail and dismissed. Final Result : Dismissed